Terms & Conditions

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Marketecture Terms & Conditions

1. Overview.

The following agreement ("Agreement") is entered into between you ("Customer" or "you") and Marketecture, Inc. ("Marketecture"), a Delaware corporation having a business at 710 E. Technology Ave., Building E, Suite 2100, Orem, UT 84097 and is made effective on the date of electronic acceptance. This agreement sets forth the terms and conditions that govern your use of this website and the products and services (collectively, the "Services") found at this site, and is in addition to and not in lieu of any specific terms and conditions that apply to your purchase of a particular Service. In the event that you provide a purchase order or other ordering document to facilitate your purchase, the document is incorporated by reference only to the extent that it identifies the Services to be purchased, and all other terms and conditions included in such document are hereby rejected by Marketecture.

Your electronic acceptance and/or use of the Services signifies that you have read, understood and agreed to be bound by the terms and conditions of this Agreement as well as any policies posted on this website and that by such acceptance and/or use of the Services you agree that any previous agreements between you and Marketecture will be terminated and superseded by this Agreement. You acknowledge and agree that Marketecture's acceptance of this Agreement and the provision of Services are performed at Marketecture's offices in Orem, Utah, USA. Marketecture, in its sole discretion, may refuse to provide the Services to any one at any time and for any reason. If Marketecture exercises this right, Marketecture will not charge you for the Services and/or refund you for the amounts paid for the Services during the month that Marketecture invokes its right to deny Service.

Marketecture, in its sole and absolute discretion, may change or modify this Agreement, and the corporate policies and/or Service Specific Terms which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the earlier of (i) our email notification to you advising you of such changes or modifications (ii) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the "Last Revised" date at the top of this page or (iii) your continued use of the Services after Marketecture posts the amended Agreement to Marketecture.com.

2. Eligibility, Point of Contact, Account Ownership

The Services found at this Site are available only to Customers who can form legally binding contracts under applicable law. By using the Services found at this Site, you represent and warrant that you are (i) at least eighteen (18) years of age and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law. You further represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Marketecture is legally prohibited to provide the Services.

Customer shall designate a single "Point of Contact" when placing their order. Customer's Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that Marketecture may rely on representations made by Customer's Point of Contact. Customer may change its Point of Contact at any time by giving written notice to Marketecture in accordance with the notice provisions of this Agreement. Marketecture is under no obligation to accept instructions from anyone other than the Point of Contact. Notwithstanding the foregoing, Marketecture shall not be liable for any loss or damage resulting from Marketecture's reliance on any instruction, notice, document or communication reasonably believed by Marketecture to be genuine and originating from an authorized representative of Customer's corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Marketecture reserves the right (but not the obligation) to require additional authentication from Customer. In order to permit Marketecture to protect the quality of its products and services, you hereby consent to Marketecture staff being able to access your account and records on a case by case basis to investigate complaints or other allegations or abuse.

3. Dispute of Site or Account Ownership

The entity or person creating the account and designated as the owner shall be deemed the account owner. For security reasons, only the account owner or Point of Contact designated by the account owner shall be allowed to make changes, cancellations, or designate a new Point of Contact. Disputes sometimes arise between or among multiple persons claiming ownership of or rights in a site, store or account. Marketecture is not obligated to and will not resolve any such disputes. If multiple persons are claiming ownership of or rights in a site, store or account, and, in Marketecture's sole judgment, there is no certainty as to the ownership of or rights in said site or account, then Marketecture will, to the extent of its knowledge and ability, notify said persons of the dispute and demand that said persons promptly, conclusively, and finally resolve the dispute in a manner which makes clear who the owner(s) and/or interest holder(s) is/are and in a manner which relieves Marketecture of all liability or obligations concerning the dispute. If the disputing persons fail so to resolve the dispute within what Marketecture, in its sole judgment, deems to be a reasonable time, then Marketecture, at its sole option and without any obligation to do so, may suspend or terminate the account until such persons resolve said dispute and reach certainty regarding ownership of or rights in said site, store and/or account. The person or persons conclusively and finally determined by court order or settlement agreement to be the rightful owner(s) or interest holder(s) of said site, store and/or account shall be obligated to pay all amounts due and comply with the Transfer Policy, if required, to transfer ownership of the site, store and/or account to the rightful owner. Failure of the rightful owner of said site, store and/or account timely pay in full all of said amounts shall be deemed a breach of these Terms and shall subject the account to immediate termination.

4. Recommendations

Marketecture personnel may from time to time recommend third party software or other products and services for your consideration. MARKETECTURE MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM MARKETECTURE, INCLUDING THE COMPATIBILITY OF SUCH PRODCUTS AND SERVICES WITH MARKETECTURE SOFTWARE. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.

5. Software Updates

From time to time, Marketecture may update the software associated with a Service for many reasons, including but not limited to, (a) to maintain PCI compliance; (b) to fix bugs or problems in previous versions; and/or (c) to enhance functionality or features. Marketecture makes no warranty that such updates will not affect your use of the Services or introduce new but unknown bugs into the software. Further, Marketecture shall not be responsible for the effect an update has on any code not provided by Marketecture and any modifications to such code to restore functionality shall be Customer's sole responsibility and cost.

Where support is provided by Marketecture, Marketecture will provide technical support for the most recent update or version of the Software associated with a Service. From time to time, Marketecture may provide support for an older version(s), however Marketecture reserves the right to suspend or terminate such support at anytime, with or without notice.

6. Use of Customer's Name and Trademarks

Customer hereby grants Marketecture a non-exclusive right and license to use Customer's name and such of Customer's trade names, trademarks, and service marks (collectively, "Customer's Marks") as are listed on Customer's Content or otherwise provided to Marketecture in connection with this Agreement (a) on Marketecture's own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing Marketecture's Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use Marketecture's trade name, trademarks, and service marks (collectively, "Marketecture's Marks") in advertising and publicity in conjunction with the offering of Customer's Content via Marketecture, provided that Customer shall submit copy to Marketecture for its prior written approval, and provided further that under no circumstances shall such use imply that Marketecture endorses, sponsors, certifies, approves or is responsible for Customer's Content. Notwithstanding the foregoing, Customer need not obtain Marketecture's prior written approval where use of Marketecture's Marks is limited to inclusion in a list of systems via which Customer's Content is available.

7. Use of Customer's User Content

Some of the features of this website or the Services found at this website may allow Customer to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice ("User Submissions"), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, "User Content"). By providing User Content to Marketecture via any method (e.g. site submission, email, survey responses, etc.), you represent and warrant to Marketecture that (i) you have all necessary rights to distribute User Content via this website or via the Services found at this website, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) you do not violate the rights of any third party.

The provisions in this Section apply specifically to Marketecture's use of User Content posted to Marketecture's corporate websites or submitted directly to Marketecture. The applicable provisions are not intended to and do not have the effect of transferring any ownership or licensed rights (including intellectual property rights) you may have in content posted to your hosted websites.

You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.

You acknowledge and agree that:

1. Your User Submissions are entirely voluntary.
2. Your User Submissions do not establish a confidential relationship or obligate Marketecture to treat your User Submissions as confidential or secret.
3. Marketecture has no obligation, either express or implied, to develop or use your User Submissions, and no compensation is due to you or to anyone else for any intentional or unintentional use of your User Submissions.
4. Marketecture may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.

Marketecture shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions provided to Marketecture by any method, and shall be entitled to the unrestricted use and dissemination of any User Submissions provided for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.

8. Sublicense, Partner, Reseller & Affiliate

Customer may not sublicense or resell any of Marketecture's Services to any third parties unless they are a member of Marketecture’s Partner, Reseller or Affiliate Program and agree to abide by its terms and conditions. Access to these sublicensing programs is available by contacting Marketecture’s Business Development Department, whose contact information is available and regularly updated on our website.  Any attempts to sublicense or resell Marketecture Services outside of the Marketecture Partner, Reseller or Affiliate Program would be considered a material breach and grounds for termination of this Agreement.

9. Fees and Payment

A. Fees.In consideration of the Services, Customer will pay to Marketecture all fees due according to the prices and terms listed on the website. All sales are final and Marketecture offers no partial or full refunds of any kind on any purchase unless otherwise expressly noted, even if your Services are suspended, terminated or transferred before the end of the Services. Marketecture expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to you. If you have purchased Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal.

B. Payment.All payments are due upon signup; the Services will not begin until payment is received. All recurring charges will be due on the monthly, semi-annual or annual anniversary date of your initial signup. If an ACH payment is returned or rejected by Marketecture's bank, or incurs additional costs for Marketecture (e.g., bank fees) for any reason, then Customer may be charged a service fee of $40 and be required reimburse all such fees and costs incurred by Marketecture, and Customer shall be immediately deemed to be in default of this Agreement. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is greater, until fully paid. If Customer defaults, Customer agrees to pay Marketecture its reasonable expenses, including attorney, in house legal expenses and collection agency fees, incurred in enforcing its rights.

C. Billing Policies and Cycles.We offer billing via credit card , debit card charge, and ACH only. All initial fees must be paid prior to service setup. These fees may include service setup fees and first month service charge. Our billing cycle begins on the day we setup your account, and is due on that day each month thereafter. Marketecture attempts to automatically charge the credit card on file for any past due invoice for current, suspended and cancelled accounts. Accounts suspended and reactivated must pay all past due and current amounts. Accounts past due over 30 days cannot be reactivated. You must sign up for new service and pay the full setup fees associated with the plan you choose. To cancel your account, you must follow the procedure in Section 18. To ensure that you are not billed for another month of service, you must cancel your account before your billing cycle due date. All accounts requesting cancellation are terminated on the last day of your billing cycle.

D. Taxes.All fees charged by Marketecture for the Services are exclusive of all taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on Marketecture's net income. If Marketecture is required to pay directly any such taxes, Customer will, upon receipt of Marketecture's invoice, promptly reimburse Marketecture for any such taxes paid by Marketecture.

10. Acceptable Use Policy

A. Acceptable Use Policy.Marketecture maintains on its Web site Marketecture's then-current Acceptable Use Policy ("AUP"). Customer agrees to abide by the AUP. Marketecture may modify its AUP at any time, and shall post the then-current AUP on Marketecture's Web site, which will be effective upon posting.

B. End Users to Comply with AUP.Customer acknowledges that Marketecture may terminate an end user's access to Customer's Web Site for noncompliance with Marketecture's AUP. Marketecture may thus terminate such end user's access to Customer's Content even if the end user has not violated Customer's own terms and conditions of use of its Web Site. Marketecture acknowledges that Customer may terminate a User's access to Customer's Content for noncompliance with Customer's terms and conditions.

11. Security

Customer acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Services is to allow end users easy access to Customer's Content. Marketecture will take those precautions Marketecture deems reasonable in its sole discretion to secure Customer's Web Site from attack, but Marketecture makes no warranty that there will be no outages or interruptions of service, or that Customer's Content will be secure against attack of any form by end users or other third parties.

12. PCI Guidelines

Marketecture provides a framework to its customers which is CISP certified under optimal security settings. However, if a Marketecture customer chooses to view credit card information, that customer is choosing an inherently less secure set of security settings as well as assuming higher risk that Marketecture does not endorse or recommend.

Therefore, if a Marketecture customer chooses to view credit card information that customer assumes all liability for their actions and the inherent risk associated with viewing credit card information. Marketecture will not be responsible for any such risk or liability regardless of the security settings.

Further, if a merchant chooses to view credit card information, they are certifying that they understand and are following all PCI guidelines for viewing credit card information. These guidelines can be found at Visa's website: PCI Overview

If a merchant does not follow all of the PCI guidelines when viewing credit card information, that merchant is in breach of its contract with Marketecture and possibly Visa/Mastercard/Discover/American Express.

Regardless of viewing credit card information merchants must comply with the PCI DSS and assume liability applicable to PCI DSS. In addition per guidelines stores must use a strong security protocol such as SSL to safeguard sensitive cardholder data over networks.

At its discretion, Marketecture reserves the right to change the security settings of any merchant at any time with or without warning.

13. Prohibited Practices

Marketecture shall have no duty or obligation to monitor Customer's Content or any other Content provided or distributed by others, and Marketecture shall not edit or otherwise exercise any control over Customer's Content. Nevertheless, Marketecture may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer's Content or other Content that Marketecture deems in its sole discretion to be offensive or illegal, for any one or more of the following reasons: (i) the content is adjudicated to be in violation of the laws of the state where the server resides; illegal or sexually explicit Content or activities, or any Content that allegedly violates the law, rules or regulations of any country or subdivision thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer's billing practices; or (iii) Customer's noncompliance with or material breach of any of the terms and conditions of the AUP or this Agreement; or (iv) claims made by third parties against Marketecture that Customer or any of its end users has engaged in one or more of the above practices.

14. No Solicitation

Customer agrees Customer will NOT approach any employees of Marketecture and its affiliates with proposals to hire them as its own employees or contractors. If you were to hire any of Marketecture's employees, you agree to pay Marketecture for each employee hired the greater amount of three (3) years' salary for that employee as you are to pay such employee, or $200,000.

15. Customer's Indemnification

Customer shall indemnify and hold harmless Marketecture from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees and fees attributable to in house legal personnel, arising from or relating to Customer's provision, or an end user's use, of Customer's Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law. This indemnification is in addition to any indemnification required under the UDRP or any similar policy.

16. DISCLAIMER OF WARRANTIES

CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". MARKETECTURE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MARKETECTURE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ABILITY OF THE SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (III) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (IV) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND MARKETECTURE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY MARKETECTURE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES) WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.

17. LIMITATION OF LIABILITY

MARKETECTURE ASSUMES NO RESPONSIBILITYWITH RESPECT TO CUSTOMER'S OR END USER'S USE OF THE SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, LOST REVENUEOR PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF MARKETECTURE IS AWARE OF THE POSSIBILITY THEREOF. MARKETECTURE SHALL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE OR THE SERVICES FOUND AT THIS SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.

18. Term and Termination.

You may terminate your right to access and use the Service at any time. For security reasons, Marketecture requires that you authenticate any cancellation, including paying the stated termination fee where applicable. Failure to do so will result in the cancellation request not being processed and you will be liable for all recurring fees until such authentication is complete. PLEASE NOTEthat a cancellation of a particular Service may not cancel all Services associated with your account.

Marketecture may terminate this Agreement and/or your right to access and use the Service, in whole or in part, at any time and for any reason. Marketecture reserves the right, but not the obligation, to cancel or suspend your Service if your site(s) causes a sudden significant increased draw on system resources (i.e. a DDOS attack) that in Marketecture's sole opinion impairs its ability to provide Services to other customers. Marketecture also reserves the right to immediately terminate this Agreement and/or your right to access and use the Service, in whole or in part, if Marketecture finds that you have been abusive to Marketecture employees.

Upon expiration or effective termination of the Service by either party for any reason, (a) Marketecture will cease providing the Service, (b) you will not be entitled to any refunds of any usage fees or any other fees, pro rata or otherwise, unless Marketecture terminates such Service without cause, and (c) any outstanding balance for your usage of the Service through the effective date of such termination or expiration will be immediately due and payable in full.

19. No Assignment by Customer

Customer may not assign this Agreement without the prior written consent of Marketecture, which Marketecture may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. Marketecture may assign this Agreement, which shall be effective upon written notice provided to Customer.

20. No Third-Party Beneficiaries

Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.

21. Notices of Trademark and Copyright Infringement

Marketecture supports the protection of intellectual property. If you would like to submit (i) a trademark claim for violation of a mark on which you hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which you hold a bona fide copyright, please refer to Marketecture's Trademark and/or Copyright Infringement Policy referenced above and available.

To cover the increasing cost of processing abuse claims, Marketecture reserves the right to charge Customer a processing fee for each instance of notification received from a legitimate copyright holder. Marketecture reserves the right to suspend or terminate any Services if, upon notification, Customer fails to comply with a legitimate infringement claim within the specified time.

22. Proprietary Rights Notice

The Service, which includes but is not limited to, all intellectual property rights in the Service are, and shall remain, the property of Marketecture or its licensor (as applicable). All rights not expressly granted to you in this Agreement are hereby expressly reserved and retained by Marketecture and its licensors (as applicable). Without limiting the generality of the foregoing, you shall not (and shall not allow any third party to): (a) use the Service outside of the scope of the limited license herein granted, including but not limited to use for the sole purpose of obtaining a competitive advantage against Marketecture; (b) sublicense, distribute, copy, modify, adapt, translate, or prepare derivative works from, to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Marketecture; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Marketecture (or any of its affiliates or licensors); (e) reverse engineer, disassemble, or decompile any software or otherwise attempt to discover any source code or trade secrets related to the Service, in any manner, except as permitted by applicable law; or (f) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.

23. Notices

(i) Any notice or other communication ("Notice") required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested, to the address listed above in this Agreement, for Marketecture or the address provided in the application form submitted with the payment for Customer; (ii) a Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by facsimile shall be deemed given when transmitted, provided that confirmation of that transmission was received. A Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty eight (48) hours after it is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given; (iii) either party may designate, by Notice to the other, substitute addresses, addressees or facsimile numbers for Notices, and thereafter, Notices are to be directed to those substitute addresses, addressees or facsimile numbers.

24. Miscellaneous

Except for disputes governed by the Uniform Domain Name Resolution Policy, the laws of the State of Utah shall govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement, without regard to the principles of conflict of laws; and you hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non convenes with respect to) the jurisdiction and venue of the federal and state courts of in Utah County, Utah, USA. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement. The parties specifically exclude from application to this Agreement from the United Nations Convention on Contracts for the International Sale of Goods.

If a ruling by any court that one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of this Agreement. Thereafter, this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had been amended to the extent necessary to be enforceable within the jurisdiction of the court making the ruling and to preserve the transactions originally contemplated by this Agreement to the greatest extent possible. The section and subsection headings have been included for convenience only, are not part of this Agreement and shall not be taken as an interpretation of any provision of this Agreement. This Agreement represents the entire understanding of the parties with respect to the subject matter hereof, and there are no representations, promises, warranties, covenants or understandings with respect thereto other than those contained in this Agreement. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any purchase order issued by Customer with respect to the Services provided under this Agreement shall not be applicable and that any acceptance of such purchase order by Marketecture shall be for acknowledgment purposes only.

Failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time. The remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed by law. Resort to one form of remedy shall not constitute a waiver of alternate remedies.

25. Additional Service Specific Terms

In addition to the general Terms of Service above, you also agree to be bound by the additional service specific terms applicable to the Services you purchase and/or use. The following Service Specific Terms and Policies are hereby incorporated by reference and will be binding upon the parties.

E-Commerce, Website & Hosting Services

E-commerce License

Marketecture grants you a limited, non-exclusive license to use the ecommerce solution as defined by the package you have selected for the sole purpose of operating an online store. All rights not expressly granted are hereby reserved by Marketecture.

Hosting Services

Marketecture shall provide storage for the Software and content of Customer's Web Site and make it available for end-users to access (the "Hosting Services"). The servers used to provide the Hosting Services are physically located in the United States of America and as such all content will be subject to the laws thereof.

You agree Marketecture has no control of availability of the Hosting Services on a continuous or uninterrupted basis. Marketecture makes no warranty that the Hosting Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, confidential information and property.

You further agree that as a normal course of its business, it may be necessary for Marketecture to migrate its servers. As a result, even though you may have a dedicated IP, You may be assigned a different IP number. Marketecture does not warrant that you will be able to consistently maintain Your given IP numbers.

Service Level Warranty

Marketecture warrants that the network will be available 99.99% of the time in a given month. This service level warranty shall not apply to performance issues: (1) to the extent caused by factors outside of Marketecture's reasonable control; (2) that resulted from any actions or inactions of Customer or any third parties not affiliated with Marketecture, for example a DDOS attack on Customer's site or another customer's site hosted on the same server; (3) that resulted from Customer's equipment and/or third party equipment; (4) that resulted from software related issues; or (5) that are scheduled by Marketecture for purposes of maintaining or updating the Web Site or the Software. The network availability measurement expressly excludes downtime caused by (1)-(5) above.

Subject to Section 17 of this Agreement, if you experience Network Downtime above and beyond the 99.99% availability, upon request Marketecture will refund a customer 5% of the monthly hosting fee for each 30 minutes of Downtime (up to and not to exceed 100% of customer's monthly hosting fee). This is your sole and exclusive remedy for failure to meet the Service Level Warranty."Network Downtime" exists when a particular customer is unable to transmit and receive data and Marketecture records such failure in the Marketecture trouble ticket system. Network Downtime is measured from the time the trouble ticket is opened by the customer to the time the server is once again able to transmit and receive data. If Customer fails to comply with this requirement, Customer forfeits its right to a receive service credit.

Web Site Content

You shall be solely responsible for providing, updating, uploading and maintaining your web site and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your web site, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. Your web site content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services. Notwithstanding anything in this Agreement to the contrary, in no event shall your web site violate Marketecture's AUP or consist of pages containing any of the following types of content:

1. pornographic, obscene or excessively profane content;
2. content intended to advocate or advance computer hacking or cracking;
3. gambling;
4. illegal activity;
5. drug paraphernalia; or
6. hate, violence or racial or ethnic intolerance.

Information Shared with Partners

As a condition of purchasing and using the Hosting Services, you acknowledge and agree Marketecture may provide your personal information to their partners, as required to provide the plans for which you are purchasing.

Your Obligations

You acknowledge and agree Marketecture shall have the right to seek justification in connection with your use of the Hosting Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by Marketecture pursuant to such justification. You acknowledge and agree that you are required to begin using at least ninety percent (90%) of your purchased IP addresses within thirty (30) days of assignment of such IP addresses to you. In the event you do not begin using at least ninety percent (90%) of your assigned IP addresses, you acknowledge and agree Marketecture shall have the right to reclaim any unused IP addresses after the expiration of such thirty (30) day period. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries, including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.

You represent and warrant to Marketecture that:

1. Your Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation;
2. infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and
3. that you own your web site content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within your web site.

You also warrant that the web site being hosted by Marketecture will not be used in connection with any illegal activity. If you are hosting your web site on Marketecture's servers, you are responsible for ensuring there is no excessive overloading on Marketecture's DNS or servers. In the event you exceed your allotted bandwidth, compute cycles or disk space and thereby overload Marketecture's DNS or servers, you shall be assessed any and all fees, costs and penalties associated with such overloading. You may not use Marketecture's servers and your web site as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and Marketecture reserves the right to remove sites containing information about hacking or links to such information. Use of your web site as an anonymous gateway is prohibited. Marketecture prohibits the use of software or scripts run on its servers that cause the server to load beyond a reasonable level, as determined by Marketecture. You agree Marketecture reserves the right to remove your web site temporarily or permanently from its servers if Marketecture is the recipient of activities that threaten the stability of its network. You agree not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to:

1. in any application or situation where failure of the Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage;
2. disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email, or unreasonably large volumes of email on a daily basis, provided, Marketecture, in its sole discretion, may permit you, if you have a legitimate purpose and after request, to send more email than Marketecture's standard SMTP relay limit;
3. disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;
4. disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person;
5. create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
6. export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions;
7. interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding your authorization;
8. disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program;
9. engage in any other activity deemed by Marketecture to be in conflict with the spirit or intent of this Agreement or any Marketecture policy; or
10. use your server as an "open relay" or similar purposes.

Marketecture prohibits the running of a public recursive DNS service on any Marketecture server. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. Marketecture actively scans for the presence of public DNS services and reserves the right to remove any servers from the network that violate this restriction.

Storage and Security

At all times, you shall bear full risk of loss and damage to your web site and all of your web site content. You are entirely responsible for maintaining the confidentiality of your password and account information. You agree you are solely responsible for all acts, omissions and use under and charges incurred with your account or password or in connection with the Site or any of your web site content displayed, linked, transmitted through or stored on the Server. You shall be solely responsible for undertaking measures to:

1. prevent any loss or damage to your web site content;
2. maintain independent archival and backup copies of your web site content;
3. ensure the security, confidentiality and integrity of all your web site content transmitted through or stored on Marketecture servers; and
4. ensure the confidentiality of your password.

Marketecture's hosting servers are not an archive and Marketecture shall have no liability to you or any other person for loss, damage or destruction of any of your content. You are solely responsible for the backup of your content. Marketecture shall have no liability to you or any other person for your use of the Hosting Services in violation of these terms or any applicable law or regulation. You shall at all times use the Hosting Services as a conventional and/or traditional web site. You shall not use the Hosting Service in any way, as determined in Marketecture's sole discretion, that shall impair the functioning or operation of Marketecture's Services or equipment. You acknowledge and agree that Marketecture has the right to carry out a forensic examination in the event of a compromise to your server or account.

In the event you terminate, moving your web site off of the Marketecture hosting servers is your responsibility. Marketecture will not transfer or FTP your web site to another provider. In the event your use of the Services is terminated, Marketecture will not transfer or manage your Services or your web site content.

Third-Party Software

Additionally, in the event you elect to install or seek assistance from Marketecture in connection with the installation of any third-party software, the following terms shall apply. You represent and warrant you have the right to use and install the third-party software, and have paid the applicable licensing fees for the third party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity. You agree to defend, indemnify and hold harmless Marketecture and its employees, officers and directors for, from and against any and all claims brought against Marketecture and its employees, officers and directors by a third-party alleging the software infringes: (i) the third-party's rights; or (ii) a U.S. patent, trademark, copyright or other intellectual property right. You agree that in such an event you shall pay all resulting costs, damages, expenses and reasonable attorneys' fees that a court awards and settlements incurred by Marketecture in connection with any such claims.

Suspension of Hosting Services

Marketecture may suspend Services without liability if: (i) we reasonably believe that the Hosting Services are being used in violation of this Agreement or our Policies; (ii) you don't cooperate with our reasonable investigation of any suspected violation of this Agreement or our Policies; (iii) there is an attack on your hosted system or your hosted system is accessed or manipulated by a third party without your consent, (iv) we are required by law, or a regulatory or government body to suspend your Hosting Services; or (v) there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Marketecture network or our other customers. We will use commercially reasonable efforts to give you advance notice of a suspension under this paragraph of at least twelve (12) business hours unless we determine in our sole discretion that a suspension on shorter or contemporaneous notice is necessary to protect Marketecture or its other customers from imminent and significant operational, legal or security risk.

Website Vulnerability

If your website is the target of a DDoS or other attack, you consent to Marketecture performing mitigation procedures with or without notice to you and without liability for any delay, disruption or interruption of service. Such procedures may include, but are not limited to, taking your website offline in order to isolate your website in a quarantine server, implementing ACL (access control lists), IP filtering, IP blocking, or any other mitigation techniques necessary to block the DDoS or other attack. Further, these techniques will remain in place until your website experiences at least 48 hours of continuous non-malicious, "normal" traffic.

If your website is moved to a quarantine Server, it will remain there for a minimum of 48 hours. After the initial 48 hour period, Marketecture will evaluate all traffic targeting your merchant website. If any traffic targeting your merchant website is deemed to be malicious, in Marketecture's sole discretion, your website will remain on said quarantine Server until it experiences 48 hours of continuous non-malicious, "normal" traffic.

Domain Name Registration

No Guarantee of Registration or Renewal

As a domain name registrar, Marketecture is, upon accepting your application to register or renew a domain name, your sponsor for that application. No domain name registrations shall be deemed effective unless and until we deliver the domain name registration or renewal application you provide us to the appropriate registry administrator, as applicable, and that registry administrator accepts your application and activates your domain name registration or renewal. You will be entitled to a refund only if your registration is unsuccessful.

You acknowledge and agree that Marketecture does not guarantee that you will be able to register or renew a desired domain name, even if our systems indicate that domain name is available or you are able to complete an order with respect to such name. You also understand that Marketecture cannot know with certainty whether or not the domain name which you are seeking to register is simultaneously being sought by a third party, or whether there are any inaccuracies or errors in the domain name registration or renewal process or related databases, including the various WHOIS or other registry databases. You also acknowledge and agree that Marketecture is not responsible for any inaccuracies or errors in the domain name registration or renewal process. YOU ARE SOLELY RESPONSIBLE FOR MAKING SURE THAT YOUR REGISTRATION OR RENEWAL HAS BEEN PROPERLY PROCESSED. You further acknowledge and agree that Marketecture may elect to accept or reject your application for registration or renewal for any reason at its sole discretion, such rejection including, but not limited to, rejection due to a request for registration or renewal of a prohibited domain name. You also acknowledge and agree that Marketecture is not liable or responsible in any way for any errors, omissions or any other actions by any third party including any registry administrator arising out of or related to your application for and registration of, renewal of, or failure to register or renew a particular domain name.

Your Representations

By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in connection with such registration, maintenance, or renewal are complete and accurate, and your contact information will be kept current; (b) the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not use the domain name in violation of any applicable laws, regulations, or Marketecture's rules or policies. You agree and acknowledge that it is your responsibility to determine whether your domain name registration or use infringes or violates someone else's rights, including, but not limited to, whether any foreign language translations of your domain name, either between roman-alphabet languages, between non-roman alphabet languages, or between roman-alphabet and non-roman alphabet languages, infringe or violate someone else's rights.

Domain Name Registrant

When registering a domain name with us, you will be asked to designate a registrant for the domain name. The registrant of a domain name possesses all rights granted by Marketecture under this Agreement to act with respect to that domain name and any other services obtained from Marketecture for use with that domain name. These rights include (but are not limited to) the authority to terminate, transfer (where permitted by the Agreement), or modify such services, or obtain additional services.

IF A REGISTRANT TRANSFERS A DOMAIN NAME TO ANOTHER REGISTRAR OR TO A NEW REGISTRANT, THE MARKETECTURE SERVICES ASSOCIATED WITH THAT DOMAIN NAME MAY TERMINATE FOLLOWING THE TRANSFER.

Administrative Contact

During the registration process or thereafter, you must also designate an administrative contact. The administrative contact may be the same person or entity as the registrant, or may be different. The registrant may delegate certain of its rights to the administrative contact, including managing the domain name, purchasing additional services and transferring the domain name registration to a different registrar. The registrant is responsible for all actions or omissions of the administrative contact.

Fees, Service Term, Renewal Reminders

Each domain name registration is for a one-year initial term, or such longer term as you may order or as may be required by a particular registry administrator, and is renewable thereafter for successive one to ten-year terms, as set forth during the renewal process.

Any renewal of your Services with us is subject to our then-current terms and conditions, including, but not limited to, payment of all applicable Service fees at the time of renewal and the registry administrator's acceptance of such renewal.

The Renewal Grace Period, while subject to change at any time, is currently 30 days. If you do not purchase the renewal from Marketecture during the Renewal Grace Period your domain name will be flagged for deletion. Once a domain name has been deleted you have a 30-day redemption window during which you may pay Marketecture a Redemption fee to redeem your domain name. The Redemption fee is subject to change under the terms of this agreement. If the domain name is not redeemed prior to the end of the 30-day redemption period your domain name will be released and it will become available for registration through all domain name providers on a first-come-first-served basis. To transfer a domain name during the redemption period, you must first redeem the domain (at the current redemption fee) and then purchase a domain transfer at the transfer fee. The transfer fee is subject to change under the terms of this agreement.

In the case of a domain name that has been transferred to Marketecture as the registrant for any reason, Marketecture retains the right to modify the contact information in the WHOIS record for such domain name registration to include Marketecture's contact information or that of a third party. In addition, we reserve all rights regarding such domain name registration including, without limitation, the right to (a) make the domain name registration available to other parties for purchase; and (b) to disable the DNS so that the domain name no longer resolves on the Internet, or to direct the domain name to an IP address designated by us, including, without limitation, to an IP address which hosts a parking, under construction or other page that may include promotions and advertisements for, and links to, Marketecture's Web site, Marketecture's product and service offerings, third-party Web sites, third-party product and service offerings, and/or Internet search engines, as well as advertise the sale or auction of such domain name registration. We will reinstate any such Service solely at our discretion, and subject to our receipt of the applicable Service or renewal fee and our then-current reinstatement fee.

You acknowledge that you assume all risk and all consequences if you wait until close to or after the end of a Service term to attempt to renew such Service. If a Service is not successfully renewed prior to the expiration of its then-current term, all your rights to such Service will terminate, and we will have no obligation to allow you to renew a Service once its expiration date has passed, even if a registry administrator or third party service provider provides a grace period to Marketecture upon expiration or termination of such Service. You acknowledge that post-expiration renewal or redemption processes implemented on your behalf are subject to our then-current fees.

Specifically, with respect to domain names, you acknowledge and agree that Marketecture may, upon expiration or termination, elect, at its sole discretion, to: (i) delete the domain name, (ii) renew the domain name on behalf of a third party, (iii) sell the domain name; or (iv) otherwise make such domain name available to third parties. Any expired domain name that is not sold, renewed or otherwise made available to a third party will generally be deleted between 35 and 45 days from the expiration date.

In addition, upon expiration of a domain name registration, Marketecture may elect, at its sole discretion, to disable the DNS so that the domain name no longer resolves on the Internet, or to direct the domain name to an IP address designated by us, including, without limitation, to an IP address which hosts a parking, under construction or other page that may include promotions and advertisements for, and links to, Marketecture's Web site, Marketecture's product and service offerings, third-party Web sites, third-party product and service offerings, and/or Internet search engines, as well as advertise the sale or auction of the expired domain name registration. Additionally, you agree that we may modify the contact information in the WHOIS record for the expired domain name registration to include Marketecture's contact information or that of a third party.

Your Obligations

You are solely responsible for the credit card and billing contact information you, your agents or Point of Contact provide to Marketecture and you acknowledge and agree that you will promptly inform Marketecture of any changes thereto (e.g., change of expiration date or account number).

You acknowledge and agree that, to the extent necessary, it is your responsibility to: (1) provide all equipment, including a computer and modem, necessary for you to establish a connection to the Internet; and (2) provide for your own connection to the Internet and pay any telephone service fees associated with such connection.

You are solely responsible for ensuring the Services are renewed. MARKETECTURE SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THE RENEWAL OR ANY ATTEMPT TO RENEW THE SERVICES AS DESCRIBED HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY FAILURE OR ERRORS IN RENEWING OR ATTEMPTING TO RENEW THE SERVICES. The foregoing limitation of liability is in addition to any other limitations of liability set forth in this Agreement.

Information and Its Use

You hereby acknowledge and agree that, in connection with your use of certain of Marketecture's Services, you are required to provide certain information and to update promptly this information as needed to keep it current, complete and accurate.

In addition to such other information that Marketecture may require you to provide in order to obtain the Services, Marketecture requires that you submit the following information in connection with domain name registration, administration and renewal services.

• Your full name (or the name of the entity and authorized contact person, if registration is for an organization, corporation or association), postal address, email address, voice telephone number, and fax number, where available;
• The domain name being registered; and
• The name, postal address, email address, voice telephone number, and where available, fax number for the registrant, administrative contact, technical contact and billing contact for the domain name registration.

You acknowledge and agree that when you renew a domain name registration, the type of information you are required to provide may have changed. If you do not wish to provide the new required information, the registration may not be renewed, in Marketecture's sole discretion.

Additional Information Maintained

In addition to the information you provide, we maintain records relating to any domain name application received by Marketecture, as well as any domain name registered through, administered, or renewed by Marketecture. We also maintain records relating to other Services that we provide to you. These records may include, but are not limited to:

• The original creation date of a domain name registration, renewal, or request for Services;
• The submission date and time of a registration or renewal application, or request for Services to us and by us to the proper registry;
• Communications (electronic or paper form) constituting submissions, forwarding, modifications, or terminations of service and related correspondence between you and us;
• Records of your account, including dates and amounts of all payments and refunds;
• The IP addresses of the primary nameserver and any secondary nameservers for the domain name;
• The corresponding names of those nameservers;
• The name, postal address, email address, voice telephone number, and where available, fax number of various contacts for the Services;
• The expiration date of a domain name registration; and
• Information regarding all other activity between you and us regarding your use of the Services.

Accurate Data

In the event that (i) in applying for Service(s) or the registration of a domain name you are providing information about a third party, or (ii) you license a domain name registered in your name to a third party, you hereby represent and warrant that you have (a) provided notice to that third party of the disclosure and use of that party's information as set forth in this Agreement, and (b) obtained that third party's express consent to the disclosure and use of that party's information as set forth in this Agreement.

You acknowledge and agree that willfully providing inaccurate or unreliable information or willfully failing to update information promptly will constitute a material breach of this Agreement that will be a sufficient basis for cancellation of your domain name registration or Service(s), in our sole discretion. You further acknowledge and agree that your failure to respond for over fifteen (15) calendar days to an inquiry by Marketecture concerning the accuracy of contact details associated with your domain name registration shall constitute a material breach of this Agreement and will be a sufficient basis for cancellation of your domain name registration.

You agree that Marketecture (itself or through its third party service providers) is authorized, but not obligated, to use certain address or billing correction services to update and/or to change any address or billing information associated with your account (including, without limitation, registrant address, billing contact address, and credit card information), and you agree that Marketecture may use such changed information for all purposes in connection with your account (including the sending of renewal notices or invoices or for automatic renewal charges).

Disclosure and Use of Information

You acknowledge and agree that Marketecture may make available information you provide or that we otherwise maintain, to such public or private third parties as applicable laws require or permit, including, but not limited to, making publicly available, or directly available, some or all of such information: (i) for inspection by law enforcement officials (including in the case of potential criminal activity); (ii) to respond to criminal and civil subpoenas and court orders that reasonably appear to be valid; (iii) in connection with the sale of all or certain of our assets; (iv) to enforce or apply the terms of this Agreement; and (v) to protect the rights, property, or safety of Marketecture, our users, or others, whether during or after the term of your use of the Service.

You further acknowledge and agree that Marketecture may make publicly available, or directly available to third parties, some, or all, of the information you provide, for purposes of inspection (such as through our WHOIS service) or for targeted marketing and other purposes as required or permitted by applicable laws.

You hereby consent to any and all such disclosures, guidelines, limits and restrictions on disclosure or use of, information provided by you in connection with the registration of a domain name or use of any Services (including any updates to such information), whether during or after the term of your registration of a domain name or other Services. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of information provided by you.

We will not process data about any identified or identifiable natural person that we obtain from you in a way incompatible with the purposes and other limitations which we describe in this Agreement.

Marketecture will take reasonable precautions to protect the information it obtains from you from our loss, misuse, unauthorized access or disclosure or use, or alteration or destruction, of that information. However, Marketecture will have no liability to you or any third party provided that such reasonable precautions are taken.

System Performance Degradation

Marketecture depends upon its own and third party, computer systems to provide the Services, and to provide timely information to Marketecture's customer service team. Occasionally, these computer systems are subjected to exceptional volumes of incoming data, service requests, processes, electronic mail messages, and/or WHOIS queries that result in significant degradation of system processing and response time. Regardless of the reason, in those instances when there is system performance degradation, Marketecture reserves the right, in its sole discretion, to filter or block electronic messages, data and/or processes originating from or traveling to the identified sources of the high volume traffic. Marketecture will attempt to selectively restore service after system performance returns to normal limits, provided that such restoration does not result in an adverse impact on the system. Marketecture further reserves the right to permanently filter or block repeated sources of high volumes of electronic traffic.

Finally, you acknowledge and agree that if your server is involved in an attack on any computer system, either with or without your knowledge or complicity, your account will be shut down while the matter is investigated and resolved in Marketecture's absolute discretion.

Suspension, Cancellation, Transfer or Modification of Service(s)

You acknowledge and agree that Marketecture may suspend, cancel, transfer or modify your use of the Services at any time, for any reason, in Marketecture's sole discretion and without notice to you. You also acknowledge and agree that Marketecture shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Services. Without limiting the foregoing, Marketecture may, in its sole discretion, suspend, cancel, transfer or modify a domain name registration (a) to correct mistakes made by Marketecture, another registrar, or the applicable registry administrator, (b) to resolve a dispute related to that domain name, (c) within thirty (30) calendar days of the creation date of that domain name registration, (d) if you materially breach this Agreement (including any applicable additional rule or policy) and do not cure such breach within five (5) calendar days of notice by Marketecture, (e) if you use the domain name registered to you to send unsolicited commercial advertisements in contradiction to either applicable laws or customary acceptable usage policies of the Internet, or (f) if you use a domain name in connection with unlawful activity.

You further acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your domain name registration, including, but not limited to (i) the UDRP, (ii) any registrar (including Marketecture) or registry administrator procedures, or (iii) any other ccTLD registry administrator procedures. You also agree that Marketecture shall have the right in its sole discretion to suspend, cancel, transfer or otherwise modify your domain name registration at such time as Marketecture receives what reasonably appears to be (a) an authentic notification from a court of competent jurisdiction, or (b) an arbitration award requiring the suspension, cancellation, transfer or modification of your domain name registration.

Design and Development

Definitions

"Software"means the Marketecture eCommerce software, current release version, including any updates provided by Marketecture, and Marketecture's proprietary technology and source code.

"Custom Work Product"means all designs, discoveries, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information, and materials made, conceived, or developed by Marketecture after the Effective Date on behalf of Customer in furtherance of the Web Site or other Services provided to Customer under the terms of this Agreement, and paid for by Customer. Custom Work Product does not include any preexisting software owned by Marketecture, or any Customer Content or any third party software products incorporated into the Custom Work Product.

"Generic Modules"means discrete computer program subroutines that are not specific to the functions of the Custom Work Product but are useful generally in Marketecture's business and that are designated as "Generic Modules" in writing signed by both parties.

"Marketecture Technology"means any and all existing software, technology, know how, algorithms, procedures, techniques, and solutions associated with the use, design, development, testing, and distribution of the Custom Work Product and improvements to such existing software and related technology, which technology is owned by Marketecture or its suppliers and used by Marketecture in the development effort hereunder.

"Intellectual Property"means intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, patent rights (including patent applications and disclosures), rights of priority, mask work rights, and trade secret rights, recognized in any country or jurisdiction in the world.

Development Services

Marketecture agrees to provide web site development and related services that substantially comply with the information provided by Customer to Marketecture in responses to the Design Survey Form and agreed to by Marketecture (the "Statement of Work".) Customer understands that Marketecture's design and development obligations are limited to those expressly set forth in the Statement of Work and may be used on the designated domain name only. Any design or development work above and beyond the Statement of Work as requested by Customer is subject to Marketecture acceptance and will be charged to Customer at additional fees.

Ownership of Customer Content

Customer acknowledges and agrees that (a) unless expressly stated elsewhere, Marketecture has no proprietary, financial, or other interest in Customer's Content; (b) Marketecture does not, by virtue of offering or hosting Customer's Content, edit, distribute, market, sublicense, publish, or otherwise provide Customer's Content to end users; and (c) Customer is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its Content. Customer warrants that it owns or has the right to use and offer the Content in connection with Customer's Marks in the manner in which such Content is offered and will be offered by Customer during the term of this Agreement.

Protection of Content

Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although Marketecture may, from time to time, provide data backup services, Customer is advised that Marketecture is not an insurer and is in no way responsible for any damages resulting from the loss of Customer's Content, regardless of the reason for such loss. Customer is solely responsible for backing up/archiving Customer's Content.

Grant of License

Upon final and full payment of all fees associated with the Deliverables, Marketecture grants to Customer a limited, non exclusive, license to use, reproduce, display, and perform, works based upon the Deliverables, Marketecture Technology, the Generic Modules, and all Intellectual Property rights contained in the Custom Work Product on the designated domain. This license shall only extend to the extent necessary for the Customer to maintain a web site while hosted with Marketecture. Customer agrees to maintain a text hyperlink to "http://www.Marketecture.com" in the header or footer of the website. The link must be standard html, contain no javascript, and be approved by the Marketecture.

Marketecture's Rights

Custom Work Product, Software, Marketecture's Content, Marketecture Technology, the Generic Modules, and all Intellectual Property rights contained therein are and will remain the sole and exclusive property of Marketecture.

Marketecture's Rights to Customer Content

Customer grants to Marketecture a non exclusive, worldwide, perpetual, royalty free license to reproduce, modify, display, perform, adapt, transmit, distribute, improve, and otherwise use customer content in connection with Marketecture's performance under this Agreement.

Marketecture's Right to Re-Use Deliverables

Customer understands and specifically acknowledges that Marketecture may, in its sole discretion, use some or all of the Deliverables (excluding content provided by customer) in the future in commercial development projects for other customers. Nothing in this Agreement shall be construed to limit Marketecture's right to do so or to use any information in non-tangible form retained by Marketecture as ideas, information and understandings retained in the human memories of its employees, contractors and agents, provided that Marketecture may only use information of general applicability and not Customer's Confidential Information. This provision shall not be construed to operate to grant Marketecture any rights under Customer's patents or copyrights.

Customer to Cooperate

Customer will provide reasonable assistance and cooperation to Marketecture to acquire, transfer, maintain, perfect, and/or enforce the Intellectual Property rights in the web site (excluding content provided by Customer) and Custom Work Product, including, but not limited to, execution of a formal assignment or such other documents as may be reasonably requested by Marketecture. Customer hereby appoints the officers of Marketecture as Customer's attorneys in fact to execute such documents on Customer's behalf for this purpose.

Security Interest

To the extent that Customer has any interest or right with respect to the Deliverables, such interest or right shall be subject to (and Customer hereby grants to Marketecture) a security interest to the extent of the difference between the payments that are due and the payments that are actually made by the Customer for such Deliverables. Upon request of Marketecture, Customer shall execute any instrument required to perfect such security interest.

Fees for Design Services

The purchase of Design Services is a purchase of the time and creativity of Marketecture's Design Services team. As such, this is a limited resource and Marketecture requires that purchases be consummated within a reasonable amount of time. If You purchase Design Services, including but not limited to Custom Template designs, you must provide the required input, as required in the Welcome email sent by Marketecture, within three (3) months of your order date. Failure to timely provide the required input to initiate the design or to timely respond to additional inquiries which cause inactivity on the Services for three (3) months will result in the Services being deemed closed and delivered in full satisfaction. No further Services will be provided without the purchase of additional Services and You will not be entitled to a refund.

While the sale of most Marketecture Services are final and without a right to refund, we understand that Development Services require a longer involvement and circumstances may change. In order to provide flexibility to You, Marketecture allows the following refunds for Design Services only: If after the initial consultation with the Design Service team, Customer no longer wishes to purchase the design package, Customer may notify Marketecture within one (1) business day to obtain a full refund. Once the Design Services team has begun work on the project, full refunds are no longer available. A partial, pro-rated refund may be obtained within thirty (30) days after the first Customer input is required for the specified Service. Such refund will be pro-rated to compensate Marketecture for any expenditure in time, money or other resources already spent on the partial provision of the Services.

Disclaimer of Warranties; Limitations of Liability

IN ADDITION TO THE WARRANTY DISCLAIMERS AND LIMITS OF LIABILITY IN THE AGREEMENT ABOVE, MARKETECTURE FURTHER DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF CORRECTNESS, ACCURACY, RELIABILITY, COMPATIBILITY, COMPLETENESS, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. MARKETECTURE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OF OR THE RESULTS DERIVED FROM THE DELIVERABLES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER IN TERMS OF LEAD GENERATION, INCREASE IN BUSINESS OR OTHERWISE.

Policies

Abuse, Trademark, Copyright

Whether you are the holder of a trademark, service mark, or copyright, Marketecture is committed to helping you protect your legal rights. Therefore, we have established the following policies for considering trademark and/or copyright infringement claims.

Domain Name Dispute Claims

Please refer to the Uniform Domain Name Dispute Resolution Policy (the "UDRP") if you have a concern or dispute concerning a registered domain name. The UDRP covers domain names disputes; this policy specifically excludes domain name disputes.

Copyright and Trademark Claims

1. To notify Marketecture that there has been a copyright or trademark violation, please follow the specific instructions in (A) for filing a trademark claim, or (B) filing a copyright complaint.
2. If you are responding to a complaint of infringement, you will need to follow our Counter Notification policy in (C).

Trademark Claims

1. 1. If you (the "Complaining Party") would like to submit a trademark claim for violation of a mark on which you hold a valid, registered trademark or service mark (registered with the United States Patent and Trademark Office or, for foreign marks, registered with the appropriate intellectual property organization of your country; state registrations are not considered valid for these purposes), Marketecture requests that the Complaining Party substantiate such claim by providing the following information via email to support@marketecture.com. The words "Trademark Claim" should appear in the subject line.

To be considered effective, a notification of a claimed trademark violation must include the following information:

• The trademark, service mark, trade dress, name, or other indicia of origin ("mark") that is claimed to be infringed, including registration number.
• The jurisdiction or geographical area to which the mark applies.
• The name, post office address and telephone number of the owner of the mark identified above.
• The goods and/or services covered by or offered under the mark identified above.
• The date of first use of the mark identified above.
• The date of first use in interstate commerce of the mark identified above.
• A description of the manner in which the Complaining Party believes its mark is being infringed upon.
• Sufficient evidence that the owner of the website that is claimed to be infringing is a Marketecture customer.
• The precise location of the infringing mark, including electronic mail address, etc.
• A good faith certification, signed under penalty of perjury, stating:
• The content of the website [identify website] infringes the rights of another party,
• The name of such said party,
• The mark [identify mark] being infringed, and
• That use of the content of the website claimed to be infringing at issue is not defensible.
• Upon receipt of the appropriate information identified in Section 1 above, for trademark claims, Marketecture will initiate an investigation. While Marketecture is investigating the claim, Marketecture, at its sole discretion and without any legal obligation to do so, notify the posting party it will lock down the posting party's domain name(s), redirect the posting party's DNS, forward the Complaining Party's written notification to the posting party, and/or if it is solely stored on a Marketecture server, temporarily remove or deny access to the challenged material.
• If Marketecture concludes that the Complaining Party has raised a legitimate trademark claim, it may, at its sole discretion and without any legal obligation to do so, continue to suspend the posting party's Marketecture account and/or if it is solely stored on a Marketecture server, deny access to the challenged material. If Marketecture concludes that the Complaining Party has not raised a legitimate claim or if it is not clear whether the Complaining Party has raised a legitimate claim, Marketecture will restore access to the challenged material subject to a valid court order.
• The Complaining Party should understand that Marketecture and its customers are bound by the UDRP. Nothing in this Policy should be construed to supersede the UDRP, nor the obligation of Marketecture and its customers to abide by it in the context of domain name disputes.

Copyright Claims

1. If the Complaining Party would like to submit a copyright claim for material on which you hold a bona fide copyright, Marketecture requests that the Complaining Party substantiate such claim by providing Marketecture with the following information via email to support@Marketecture.com. The words "Copyright Claim" should appear in the subject line. A copyright claim can also be submitted by mail to: Copyright Agent, Marketecture, 710 E. Technology Way, Building E, Suite 2100, Orem, UT 84097.

To be considered effective, a notification of a claimed copyright infringement must be provided to Marketecture and must include the following information:

1. An electronic signature of the copyright owner, or a person authorized to act on behalf of the owner, of an exclusive copyright that has allegedly been infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Marketecture to locate the material.
4. iv. Information reasonably sufficient to permit Marketecture to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address at which the Complaining Party may be contacted.
5. A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is the owner, or is authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
7. For Copyright Claims, upon receipt of appropriate notification from the Complaining Party, pursuant to Section 1 of Copyright Claims above, Marketecture will remove or disable access to the material that is claimed to be infringing.
8. If the Complaining Party provides Marketecture with appropriate notification, pursuant to Section 1 of Copyright Claims above, including information reasonably sufficient to permit Marketecture to locate and remove or disable the material in question, or includes information concerning repeat infringement, then Marketecture will forward the Complaining Party's written notification to such alleged Infringer and shall take reasonable steps promptly to notify the Infringer that it has removed or disabled access to the material.

Counter Notification Policy

1. Counter Notification. If you have received a notice of copyright or trademark infringement, you may provide Counter Notification by emailing support@marketecture.com and including the following:
2. An electronic signature of the Infringer.
3. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
4. A statement under penalty of perjury that the Infringer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
5. The Infringer's name, address, and telephone number, and a statement that the Infringer consents to the jurisdiction of the Federal District Court for the judicial district of Utah, or if the Infringer's address is outside of the United States, for any judicial district in which Marketecture may be found, and that the Infringer will accept service of process from the Complaining Party or an agent of such Party.
6. Upon receipt of a Counter Notification as described in Section 1 above, Marketecture shall promptly provide the Complaining Party with a copy of the Counter Notification, and inform such Party that it will replace the removed material or cease disabling access to it in ten (10) business days. Marketecture will replace the removed material and cease disabling access to it in not less than ten (10), nor more than fourteen (14), business days following receipt of the Counter Notification, unless Marketecture first receives notice from the Complaining Party that such Complaining Party has filed an action seeking a court order to restrain the Infringer from engaging in infringing activity relating to the material on Marketecture's system or network.

Repeat Infringers

It is Marketecture's policy to provide for the termination, in appropriate circumstances, of Marketecture customers and account holders who repeatedly violate this policy or are repeat infringers of copyrighted works, trademarks or any other intellectual property.

Processing Fees

To cover the increasing cost of processing abuse claims, Marketecture reserves the right to charge Customer a processing fee for each instance of notification received from a legitimate copyright holder. Marketecture reserves the right to suspend or terminate any Services if, upon notification, Customer fails to comply with a legitimate infringement claim within the specified time.

Privacy Policy and Statement

Marketecture collects basic client information to make your support experience the very best on the Internet. We respect your privacy, and we assure you that we will maintain and use this information responsibly.

General Browsing

Marketecture gathers navigational information about where you go on our Web site. This information allows us to see which areas are most visited. This helps us improve the quality of visitors' online shopping experiences by recognizing and delivering more of the features, services and products our visitors prefer. Additional non-personally identifiable information (i.e. domain type, browser version, service provider and IP address) may be collected which will provide information regarding your use of our Web site (such as the time of your last visit to a page on our site).

Disclosure of Personal Information

Any information you provide to us at this site when you establish or update an account, purchase credits online or request information (i.e. name, address, e-mail address, telephone number and credit card information), is maintained in private files on our secure Web server and our internal systems. This information is used to enable Marketecture to deliver services to you. To ensure compliance with federal law, Marketecture does not maintain information provided by children under the age of 16.

You should be aware that we may disclose specific information about you if necessary to do so by law or based on our good faith belief that it is necessary to conform or comply with the law or is necessary to protect the users of our Web site, the site or the public.

Marketecture does not sell, rent or trade your e-mail address to third parties. We may, however, use third parties to help us provide services and marketing to you, such as fulfilling orders, processing payments, monitoring site activity, conducting surveys, and administering e-mails. If personally identifiable information (i.e. name, address, e-mail address, telephone number) is provided to any of these third parties, we will require that such information be maintained by them in strictest confidence.

Use of Cookies

Marketecture uses a browser feature known as a cookie, which assigns a unique identification to your computer. Cookies also allow Marketecture to make our sites more responsive to your needs, by delivering a better and more personalized experience to you. The cookies are typically stored on your computer's hard drive and are used by Marketecture to help track your clicks as you go through the pages within a Marketecture Web site. In addition, Marketecture uses cookies to help keep track of support requests and to tell us whether you have previously visited a Marketecture website. This allows registered users to avoid reentering information upon every new visit to our site.

Updating Personal Information

We prefer to keep your personal information accurate and up-to-date. To do this, we provide you with the opportunity to update or modify your personal information including billing and shipping information by logging into your account.

Use of Forums / Discussion Boards

None of the information contained on our Website is medical, legal, business, or other advice or opinion of Marketecture. Any opinion expressed via this service is that of its author. Users are reminded that postings are automatic, instantaneous, and are not pre-reviewed. Additional facts and information on legal or other developments may affect the subjects discussed. Confidential information should not be discussed. Marketecture assumes no responsibility for the content or consequences, direct or indirect, of communications by users.

Links

For your convenience, our Web site may contain links to other sites. Marketecture is not responsible for the privacy practices or the content of such Web sites.

Questions/Changes in Policy

If you have questions or concerns with respect to our Privacy Policy, please feel free to contact us. If elements of our Privacy Policy change, we will post the policy changes in our Privacy Policy on this Web site. If you are concerned about how your personal information is used, please visit our site often for this and other important announcements about Marketecture.

Marketecture believes in providing a safe and secure shopping experience for all of our clients. We provide stringent and effective security measures on our Web site.

It is our policy to never send private information, such as your credit card number, via e-mail. In fact, this is a practice we recommend you adopt in all of your Internet activities.

Acceptable Use Policy

In order to maintain our system integrity and resources we expect our customers to act responsibly. When you use any Marketecture services, in any form, you automatically agree to the following Conditions.

Marketecture maintains high standards and values, and expects the same from its customers. We reserve the right to suspend or cancel a customer's access to any or all Services provided when we decide, in our sole discretion, that the account has been inappropriately used. In short we may decline Services because of:

• Adult Material (as described below)
• Illegal content
• Use of the Services in a manner in which it was not intended
• Use of the Services in a manner which does not conform to Marketecture's values

Adult Material Policy

Marketecture maintains a strict "No Adult Material Policy". Any presentation of material that is sexual, pornographic or obscene in nature, as determined in Marketecture's sole discretion, will not be allowed. By way of example and not limitation, "Adult Material" includes any of the following:

1. Any photos or videos showing frontal nudity on either men or women.
2. Any photos or videos showing any sexually explicit nudity.
3. Any audio clips or text containing sexually explicit material.
4. Any explicit adult toys such as vibrators, etc.
5. Any sites with direct links to other sites containing such material.
6. Any site engaged in the sale of sexually explicit items.

If your site contains material that you are unsure about, please let us know before placing the order.

Transfer Policy

Marketecture will only provide access to an account to the designated Owner or Point of Contact of that account regardless of whether someone else maintains, pays for or otherwise administers the account. The "Owner" of the account is the person or entity whose name was used to set up the account. Only the Owner will be authorized to transfer the ownership of the Marketecture store or other Services. Marketecture is not a court of law and will not arbitrate or adjudicate disputes between potential Owners. If there is a dispute of the named Owner's right to the store or Services, Marketecture will comply with any court order or settlement agreement.

To transfer ownership of one of your Marketecture store orders, we will need a signed, notarized copy of the Transfer of Ownership form.As an alternative, you may send a faxed copy of a notarized contract or sales agreement signed by both current and new account holders as long as it specifically mentions the Marketecture account as part of the sales agreement. Once completed, please fax the form to 801-765-4705, marked to the attention of Account Services.

Please note that an existing SSL certificate cannot be transferred from the existing account to the new account. A new one will need to be added to the new order, or purchased separately later. Please be sure that the domain registration's WHOIS information matches the new order details. Note that the store will only be accessible at its new temporary address for up to 72 hours while the updated settings propagate.

Please note that once the new Owner places a store order, we recommend that you place your store in maintenance mode and refrain from any administrative updates, as new data added during or after the copying procedure may fail to appear in new owner's store, and/or may cause duplication of database record ID#s. This will also prevent customers from placing orders which might be affected by the data copying. Since PCI guidelines prevent us from copying full credit card data, any order which is not captured prior to copying cannot be captured from the new, copied Marketecture store.