Communicate. Coordinate. Connect. An intuitive web suite integrating email, event planning and membership activities.

Terms and Conditions for Marketingship

Please review this end user services agreement carefully, as it constitutes a legal agreement between Marketingship corporation and You, the end user.

In order to make use of the services which Marketingship provides, you must first read this agreement and indicate acceptance of all terms and conditions set forth below by checking the agreement box on the registration page. If you do not accept all terms and conditions of this agreement and check the agreement box, you will not be allowed to use Marketingship’s services. This document is an agreement for services, and in no way grants a license to any software discussed under the agreement.

1.Copyright

Copyright © 2010 Marketingship, Inc. All Rights Reserved.

This web site, and the information which it contains, is the property of Marketingship, Inc. and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "Marketingship" and the Marketingship logo are registered trademarks of Marketingship under the applicable laws of the United States and/or other countries. Other Marketingship product or service names or logos appearing in this web site are either trademarks or registered trademarks of Marketingship and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of Marketingship's trademark or other intellectual property rights concerning that name or logo.

2. Product Terms and Conditions

The Products are provided subject to these Terms and Conditions of Use, as they may be amended by Marketingship, and any guidelines, rules or operating policies that Marketingship may establish and post from time to time (collectively, the "Agreement"), including without limitation Marketingship's customer Privacy Policy, as linked from all email generated from Marketingship or otherwise furnished to you (unless otherwise stated, all references to the Agreement shall include the Privacy Policy). By posting updated versions of the Agreement on the Marketingship.com web site, or otherwise providing notice to you, Marketingship may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided in the Agreement, all changes to the agreement become effective once the revised Agreement is posted on either the Product or the web site. The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are using the Products in your capacity as an employee, you must have the ability to bind your employer by your use of the Products. You must complete the registration form on the Marketingship sign up page in order to use the Products. You shall provide true, accurate, current, and complete information about yourself as requested in the registration form. You may from time to time provide Marketingship's service personnel with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by Marketingship or its personnel.

If you are accessing or using the Products through a third party service or web site (a "Third Party Service"), you agree and acknowledge that Marketingship is not responsible or liable for any actions of such third party or for any aspect or result of such Third Party Service. You use such Third Party Service at your own risk. You further agree and acknowledge that Marketingship may terminate such Third Party Service's ability to interact with the Products at any time, with or without notice, and in Marketingship's sole discretion, with no liability to you or to the third party.

3. Customer Rights and Restrictions

  • A. During the Term of this Agreement, and upon Customer’s payment of all applicable Subscription Fees, Marketingship will enable Customer to access and utilize the Services of the Marketingship Website, pursuant to and in accordance with the fees and conditions stated on the website and this Agreement. In consideration of Customer’s payment of the Hosting Fee and subject to the terms and conditions set forth in this Agreement.

  • B. Customer shall be solely responsible for all content transferred by Customer or any other party in connection with Customer’s access and/or use of the Services, including all visual, written and/or audible communications. Customer hereby agrees not to access and/or use the Services (i) to send unsolicited commercial email in violation of applicable law; (ii) request, collect and/or store sensitive data (such as credit card numbers or social security numbers) (iii) to communicate any message or material that is deemed harassing, threatening, indecent, obscene, libelous, slanderous, or otherwise unlawful; (iv) in a manner which violates the intellectual property rights of any party; or (v) in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any applicable law or regulation. Although Marketingship is not responsible for any such content or communications, Marketingship reserves the right to take any action it deems necessary or appropriate in its sole discretion, with respect to any such content or communications of which Marketingship may become aware, at any time and without notice to Customer.

  • C. Customer may not resell, distribute, or otherwise use any of the Services on a timeshare or service bureau basis.

  • D. Customer shall not access and/or use any of the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Marketingship Web sites, Services or any networks or security systems of Marketingship.

  • E. Customer agrees to not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Products.

  • F. Customer agrees to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of the Products Customer hereby covenants that they shall not use any non Permission Based lists in connection with their use of the Products.

  • G. Customer acknowledges and agrees that not all email messages sent through use of the Products will be received by their intended recipients.

  • H. Every email message sent by the customer in connection with the Products must contain the Marketingship "unsubscribe" link that allows the recipient to remove themselves from your mailing list.

  • I. Customer acknowledges and agrees that customer is the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent using the Products.

  • J. Customer agrees that the "from" line of any email message sent using the Products will accurately and in a non-deceptive manner identify customer’s organization, product or service.

  • K. Customer agrees that the "subject" line of any email message sent using the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message.

  • L. Customer agrees to include in any email message sent using the Products their valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.

  • M. Customer agrees that any email message sent using the Products will not include any incentives (e.g., coupons, discounts, awards) that encourage a recipient to forward the email message to another recipient.

  • N. In Customer’s use of the Products is the agreement to represent them self or their organization accurately and not impersonate any other person, whether actual or fictitious.

  • O. Customer will adopt and maintain the Marketing Ship Privacy Policy, which may be modified by Marketingship from time to time.

  • P. Customer agrees to not interfere with or disrupt this web site or any related Marketingship web sites or servers or networks connected to this web site or any related Marketingship web sites.

  • Q. No other rights are granted hereunder except as expressly set forth in this Agreement

4. Services Provided by Marketingship

  • A. Marketingship will provide Customer with use of the software and services set forth above and the support services set forth in this Agreement. All other hardware and software shall be the responsibility of the Customer.

  • B. Customer acknowledges and agrees that it has independently verified that the Software is appropriate for the purposes for which the Customer intends to use it, and that Customer did not rely upon any skill or judgment of Marketingship in such selection.

Free User Account

In the event Customer elects to use the Services on a trial basis, will be allowed the use of Marketingship’s services, with a limit of 2000 contacts and 100MB of data storage with Marketingship. As a free user, Customer may use Marketingship’s Services subject to the limits posted on the Site. The subscriber limits for Free users are subject to change at any time. Free User Accounts do not Automatically expire.

5. Payment Terms

In consideration for the Services provided to Customer under this Agreement, Customer shall pay Marketingship the Subscription Fee, as set forth on the Marketingship Website, and under the following payment terms:

Payment Options

Payment for subscriptions for Marketingship sevices, including email marketing event marketing, and Member Management shall be charged a subscription fee based upon the maximum allowed number of contacts, Online data storage shall be charged a similar fee based on the maximum storage space in Gigabytes, and that these subscription fees shall be paid in monthly, quarterly, biannually, or yearly installments to Marketingship pursuant to the pricing selection made at the time of initial or renewal payment.

  • A. Payment for each pay cycle, be it a monthly, quarterly, biannual, or annual cycle, is due in advance of the term of the cycle, and represents the payment for options selected at the beginning of the cycle. Selecting additional options after payment will result in an increase in payment.

  • B. Payments under a prepayment plan are non-refundable deposits on account with Marketingship that will be used to settle future monthly invoices. Prepayment deposit amounts are based on an estimate of future monthly invoices and may not be sufficient to last the estimated time period. Actual charges and discounts will be calculated at the time of monthly invoice based on products and add-on services subscribed to as well as the maximum number of email contacts, maximum number of open events, number of total event registrants, or number of total survey responses in a given billing period.

  • C. Payment shall be made by valid credit card or by PayPal for each pay period. Registration of a credit card or PayPal account with Marketingship shall authorize Marketingship to charge the associated account each billing cycle until such a time as the account is cancelled.

Failure to Pay

  • D. All amount not paid within ten (15) days of the date on which payment is due shall be declared delinquent. If an account goes delinquent, an attempt to notify the account via email will be made and the associated account shall be suspended until such a time as a full subscription payment can be confirmed.

6. Taxes

  • A. In addition to other amounts payable under this Agreement, Customer shall pay any and all federal, state, municipal, or other taxes or fees, withholding currently or subsequently imposed on Customer’s use of the Service or the payment of the Hosting Fee to Marketingship.

  • B. Marketingship shall be entitled to collect from Customer, in addition to the other amounts payable under this Agreement, all federal, state, municipal or other taxes or fees (excluding taxes imposed on or measured by Marketingship’s net income) levied or imposed by reason of the transaction under this Agreement. Customer shall, upon demand, pay to Marketingship an amount equal to such tax(es) actually paid or required to be collected or paid by Marketingship.

7. Event and CommunityCraft Registration Fees

If you choose to collect registration fees via Marketingship’s Event Marketing or Member Management services, you are responsible for the collection and administration of such fees. You may elect to process payments through PayPal®, which Marketingship makes available for your use. Your use of the PayPal service is subject to PayPal's applicable terms and conditions of use. Marketingship is not affiliated with PayPal, is not an agent of PayPal and is not responsible for the actions or performance of PayPal. By using the PayPal Service, you expressly relieve Marketingship from any liability arising from your use of said service. Marketingship does not hold your funds or those of event registrants at any time. You are responsible for any refunds associated with your events.

8. Intellectual Property

  • A. Customer acknowledges and agrees that it obtains no ownership right in the Software under the terms of this Agreement, and that Marketingship has and retains all right, title, interest and ownership in and to the Software and other material licensed or provided to Customer under the terms of this Agreement.

  • B. Customer acknowledges that the Software, the Documentation and material under this Agreement constitutes proprietary information and trade secrets of Marketingship, whether or not any portion of the Software, the Documentation or material is or may be the subject of a valid copyright or patent.

  • C. Customer may not alter any proprietary markings on the Software, including copyright, trademark, trade secret, and patent legends.

  • D. Customer may not decompile, reverse engineer, disassemble, or make any attempt to discover the source code of the Software.

  • E. Marketingship will defend any action brought against Customer by a third party to the extent that it is based on a claim that the Software or Documentation supplied by Marketingship under this Agreement, when used by Customer as authorized under this Agreement, infringes any third party patent, copyright or  trade secret. Marketingship will pay any award against Customer, or settlement entered into on Customer's behalf, based on such alleged infringement claim, provided that Customer promptly notifies Marketingship in writing of any such claim and allows Marketingship to control, and cooperates with Marketingship in, the defense of any such claim and all related settlement negotiations.  In the event an injunction is sought or obtained against Customer's use of the Software or Documentation as a result of any such infringement claim, Marketingship may, at its sole option and expense, (a) procure for Customer the right to continue using the affected Software or Documentation, or (b) replace or modify the affected Software or Documentation so that it does not infringe provided that the functionality of the Software does not change in any material adverse way.

9. Limited Warranty

  • A. MARKETINGSHIP HEREBY WARRANTS TO CUSTOMER THE LICENSE TO USE THE SOFTWARE IN THE MANNER AND FOR THE PURPOSES SET FORTH IN THIS AGREEMENT WITHOUT VIOLATING ANY RIGHTS OF A THIRD PARTY.

  • B. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE SOFTWARE AND SERVICES UNDER THIS AGREEMENT ARE PROVIDED "AS IS," MARKETINGSHIP GRANTS NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES THAT THE SOFTWARE IS FREE OF DEFECTS OR ERRORS, VIRUS FREE, ABLE TO MEET ANY REQUIREMENTS OF CUSTOMER OR ANYONE ELSE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.

10. Limitation Of Liability

NEITHER MARKETINGSHIP NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE AND THE DOCUMENTATION SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE SUCH SOFTWARE INCLUDING BUT NOT LIMITED TO LOST PROFITS AND LOST DATA, EVEN IN THE EVENT MARKETINGSHIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, MARKETINGSHIP’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL MARKETINGSHIP HAVE ANY LIABILITY FOR ANY DAMAGES THAT EVER EXCEED THE PRICE ACTUALLY PAID BY CUSTOMER TO MARKETINGSHIP UNDER THIS AGREEMENT.

11. Indemnification

You hereby agree to defend, indemnify and hold harmless Marketingship and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that; arises from any alleged breach of this Agreement; arises from the content or effects of any messages you distribute or events you host using the Products or otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that Marketingship has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. In addition, In the event that Marketingship is required to respond to a third party or law enforcement subpoena that is related to your use of the Products, Marketingship may in its sole discretion require you to reimburse Marketingship for its reasonable expenses associated with complying with such subpoena.

12. Service Levels

Marketingship will use commercially reasonable efforts to make the Services available in accordance with prevailing hosting industry standards, taking into account the Customer's workstations and the speed of their connection to the Marketingship hardware (the "Technical Standards"). Marketingship will use commercially reasonable efforts under the circumstances to remedy any interruptions, omissions, mistakes, accidents or errors in the Services (hereinafter "Defects") and restore the Services substantially in accordance with the Technical Standards. If the Services fail to substantially conform to the Technical Standards over a continuous period of thirty (30) days after written notice to Marketingship of such nonconformity, Customer may terminate Services, provided that the Defect is not caused or contributed to, directly or indirectly, by any act or omission of Customer or its customers, affiliates, agents, representatives, invitees or licensees, other than normal use of the Services in accordance with the Policy. In the event Customer terminates Services under this section, Marketingship shall only refund payment for any full years remaining on a multi year agreement. This Section 3 sets forth Customer's sole remedies for any claim relating to the Services, including any failure to meet any guarantee set forth herein. Marketingship's records and data shall be the basis for all service level calculations and determinations.

13. Technical Support

Marketingship shall provide to Customer the following technical support during the Service term;

  • A. Marketingship shall assist Customer in diagnosing errors and malfunctions that occur when Customer uses the Software.

  • B. Marketingship shall provide support services to Customer to attempt to correct diagnosed errors and malfunctions. Marketingship is not responsible for errors or malfunctions caused by any hardware or any third party operating systems.

  • C. All technical assistance shall be performed between 8:30 a.m. and 8:30 p.m., Eastern Standard Time, Monday through Friday, holidays excluded.

  • D. Marketingship will provide technical assistance by email, telephone or Customer Web Portal.

14. Data Ownership; Loss

  • A. All data created or transmitted by Customer and stored on Marketingship servers as part of the Services ("Customer Data") shall at all times be owned by Customer. Except as instructed by Customer directly or through instructions provided to the servers through Customer's use of the Software, Marketingship shall treat Customer Data as Confidential Information.

  • B. In the interesting of Customer and Contact confidentiality, Marketingship shall keep no recording of deleted Customer data, nor will it attempt to recover such data save where it is necessary for the restoration of services.

  • C. In the event of an account termination, data in excess of Free account Limits shall be deleted from Marketingship’s servers within X days of the termination.

15. Term and Termination

  • A. The initial term of this Agreement shall commence on the Effective Date and shall continue for the period specified above as the "Initial Term."

  • B. Upon expiration of an Initial Term, this Agreement shall automatically renew for additional terms of one (1) year each (each a "Renewal Term"), at Marketingship’s option, unless Customer provides Marketingship with written notice of its intent not to renew no later than sixty (60) days prior to the end of the Initial Term or then-current Renewal Term.

  • C. Payment for the Renewal Term shall be made by Customer prior to expiration of the current agreement. Marketingship shall notify Customer in writing of any change in the fees for this agreement at least 90 days prior to expiration of the current agreement.

  • D. Either party shall have the right to terminate this Agreement in the event that the other party commits material breach of its obligations. Intent to terminate shall be made by written notice setting forth the details of the breach. Termination shall become effective thirty (30) days from the date that the notification of intent to terminate was given, unless the breaching party has cured the breach prior to the end of that thirty (30) day period.

  • E. In addition, Marketingship shall have the right to terminate this Agreement immediately, in the event that Customer ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.

  • F. Marketingship shall have the right to terminate this Agreement effective immediately if a petition of bankruptcy is filed by or against the other party or a party is unable to pay its debts as they become due. Intent to terminate shall be made by a written notice, sent by certified mail or overnight courier to the party by or against which bankruptcy is filed.

  • G. In the event of termination of this Agreement other than by Customer for Cause prior to the expiration of the applicable Initial Term set forth above, Customer shall not be entitled to a refund of any portion of the services fee(s) paid to Marketingship and shall be obligated to pay Marketingship for the remainder of any service fees that otherwise would be due from Customer for the remainder of the Initial Term.

16. Assignment and Delegation

  • A. Neither party may sell, transfer, assign, delegate, or subcontract any rights or obligations under this Agreement without the prior written consent of the other party. Consent shall not be unreasonably withheld.

  • B. Notwithstanding clause A above, if a party sells or transfers to a single entity all or substantially all of its business to which this Agreement relates, that party may, without the other party’s consent, assign or delegate its rights or obligations under this Agreement to that entity.

17. Monitoring Communications

Customer understands, agrees, and acknowledges that Marketingship may, in its discretion, monitor or record any of your telephone conversations for quality control purposes, for purposes of training its employees and for its own protection. You acknowledge and understand that not all telephone lines or calls are recorded by Marketingship, and Marketingship does not guarantee that recordings of any particular telephone calls will be retained or capable of being retrieved.

18. No Implied Endorsements

In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Marketingship Contact of that third party or of any product or service provided by a third party.

19. Notice and Take Down Procedures; Copyright Agent

If you believe any materials accessible on or from this web site or the Products infringe your copyright or other intellectual property, you may request removal of those materials (or access thereto) from this web site or the Products by contacting Marketingship's copyright agent (identified below) and providing the following information:

  • A. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.

  • B. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.

  • C. Your name, address, telephone number and (if available) email address.

  • D. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.

  • E. A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.

  • F. A signature or the electronic equivalent from the copyright holder or authorized representative.

Marketingship's agent for copyright issues relating to this web site and the products is

infro@marketingship.com

In an effort to protect the rights of copyright owners, Marketingship maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this web site who are repeat infringers.

20. Username and Password

You are responsible for maintaining the security of your account, passwords, and files. Marketingship will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password or provides other appropriate account identifying information as determined by Marketingship in its discretion, by email or by phone, or through a Third Party Service, if any, through which you access the Products. Marketingship has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. Marketingship shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account identifying information

21. Forward-Looking Statements

You acknowledge that this web site contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 regarding Marketingship. These forward-looking statements regarding Marketingship are made as of the date they were first issued and were based on current expectations, estimates, forecasts and projections as well as the beliefs and assumptions of Marketingship management. Words such as "expect," "anticipate," "should," "believe," "hope," "target," "project," "goals," "estimate," "potential," "predict," "may," "will," "might," "could," "intend," variations of these terms or the negative of these terms and similar expressions are intended to identify these forward-looking statements. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances that are beyond Marketingship's control. Marketingship's actual results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including those risk factors contained in documents that may be filed by Marketingship from time to time with the Securities and Exchange Commission, including but not limited to Marketingship's Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. Past performance is not necessarily indicative of future results. Marketingship undertakes no intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.

22. General

  • A. Applicable Law. This Agreement shall be governed by the laws of the State of North Carolina.

  • B. Modification. This Agreement may altered from time to by Marketingship and updated versions shall be considered effective from the time they are displayed on the Website or communicate to Customer.

  • C. Entire Agreement. This Agreement, including its Attachments, constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements. There are no promises, covenants or undertakings other than those expressly set forth in this Agreement.

  • D. Severability. If any provision of this Agreement is found to be invalid by any court of competent jurisdiction, that portion shall be construed to reflect the parties' original intent, and the balance of this Agreement shall remain in full force and effect.

  • E. Jurisdiction and Venue. Customer expressly agrees that jurisdiction for any suit or action brought under this Agreement resides in the federal and state courts of the State of California.

  • F. Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt, the third business day after being mailed by first class certified air mail or the first business day after being sent by a reputable overnight delivery service. Any notice may be given by facsimile, provided that a signed written original is sent by one of the foregoing methods within twenty-four (24) hours thereafter. Customer's address for notices is stated below. Marketingship's address for notices is stated below. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.

  • G. Attorney Fees. In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney’s fees and costs.

Copyright ©2010, Marketingship, Inc. All Rights Reserved.

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