BY SELECTING THE “I ACCEPT” BOX DURING ME360 ACCOUNT SIGN UP OR BY USING THE PLATFORM (DEFINED BELOW), YOU ARE AGREEING ON BEHALF OF SUBSCRIBER THAT YOU HAVE READ, AND AGREE TO COMPLY WITH AND BE BOUND BY, THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION AS WELL AS ME360’s PAYMENT AND REFUND POLICIES AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU ARE NOT AUTHORIZED TO SO AGREE, OR IF SUBSCRIBER DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AMG PAYMENT AND REFUND POLICIES AND TO FOLLOW ALL APPLICABLE LAWS AND REGULATIONS, DO NOT ACCESS OR USE THE PLATFORM.
1. Definitions. In addition to the capitalized terms defined elsewhere in this Agreement, as used in this Agreement, the following capitalized terms have the meanings given to them in this Section 1.
1.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Data” means all data provided by Subscriber to ME360, including but not limited to Subscriber’s contact information and the contact information of any third parties affiliated with Subscriber.
1.3. “Improvements” means any improvement, refinement, enhancement, or other modification of, or any addition to, the Platform.
1.4. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.5. “Platform” or “ME360 Platform”) means the tools and features developed, operated and maintained by AMG as to which Subscriber is obtaining access hereunder via www.Gateway Marketing.com (the “Site”).
1.5. “Services” means the services provided to Subscriber in connection with its use or utilization of the Platform, including managing the Platform on Subscriber’s behalf and/or generating content to be processed via the Platform.
1.6. “Third-Party Applications” means technology, Web-based applications and offline software products that are provided by third parties, interoperate with the Platform, and are not owned or created by AMG.
1.7. “Subscriber Marks” means all proprietary marks (including, without limitation any trademarks, service marks, trade dress, or other marks or logos) of Subscriber or its Affiliates heretofore or hereinafter registered or used.
1.8. “Users” means individuals who are authorized by Subscriber to use the Platform on Subscriber’s behalf. Users may include but are not limited to Subscriber’s employees, consultants, contractors, and agents, or other third parties.
2. Use of the ME360 Platform.
2.1. Our Responsibilities. Subject to the terms and conditions of this Agreement, including without limitation Subscriber’s payment of the Fees due hereunder, AMG shall use commercially reasonable efforts to make the Platform available to Subscriber and its Users. In addition, AMG shall provide Subscriber with a reasonable amount of Platform management support Services during the Term.
2.2. Subscriber’s Responsibilities. Subscriber shall (i) be responsible for its and its Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity, and legality of Subscriber’s Data and of the means by which Subscriber acquired its Data, (iii) be responsible for preventing unauthorized access to or use of the Platform, and notify AMG promptly of any such unauthorized access or use, (iv) be responsible for reviewing and ensuring the accuracy of any content that is to be transmitted using the Platform, (v) be responsible for ensuring that sending of emails and other communications to persons or entities that are included in the Data complies with applicable laws and any applicable professional rules of conduct; and (vi) use the Platform only in accordance with this Agreement, our rules and any applicable laws and government regulations. Subscriber shall provide AMG with all information, assistance and materials as reasonably required to activate and operate the Platform for Subscriber pursuant to this Agreement, including sharing customer contact information, etc. AMG recommends setting up Subscriber’s account on the same day as Subscriber’s first subscription payment. In the event that a third party inquires about how AMG acquired his or her information (an “Inquiring Party”), upon AMG’s request, Subscriber will promptly provide all information requested by AMG concerning or related to the source of the information for such Inquiring Party and the collection of his or her consumer information. Notwithstanding anything to the contrary contained in this Agreement, AMG shall be entitled to disclose to any Inquiring Party (a) that AMG used his or her consumer information in conjunction with and as part of the provision of services to Subscriber and (b) all other information described under this Section.
2.3. Restrictions. Subscriber shall not (a) use the Platform as a service bureau or otherwise make the Platform available to anyone other than Users, (b) sell, resell, rent or lease the Platform or access thereto to any third party, (c) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights, (d) use the Platform to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or operation of the Platform or third-party data contained therein, or (f) attempt to gain unauthorized access to the Platform or its related systems or networks. Users may be required to acknowledge and agree to the pertinent provisions of this Agreement as a condition to access. Further, Subscriber may not access the AMG Platform if it is or is under the control of a direct competitor of AMG or for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes, except with AMG’s prior written consent.
2.4. Limitations. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by AMG. During such time, the Platform may be unavailable. Emergency maintenance may be required at other times in the event of system failure. AMG will use commercially reasonable efforts to promptly remedy any system failure and restore access to the Platform.
3. Support and Technical Matters.
3.1. Maintenance and Technical Support. During the Term, AMG shall provide reasonable maintenance and technical support services relating to the Platform.
3.2. Hosting. AMG shall host and serve the Platform. AMG may retain one or more third-party service providers to supply the necessary facilities, equipment, and connectivity to provide the hosting services. AMG retains sole right and control over the programming, content, and conduct on the AMG Platform. AMG shall solely be responsible for the maintenance, functionality and improvement of the AMG Platform.
4. Fees; Payment.
4.1. Fees. In exchange for the provision of the Platform, Subscriber agrees to pay AMG all fees listed on the confirmation email sent to Subscriber or otherwise agreed to by Subscriber during the subscription process (“Fees”). Subscriber agrees that (i) Fees are due and payable in United States dollars (ii) Fees are not based on actual usage, and (iii) except as set forth in Section 18, payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof (or the last day of the applicable month if a given month does not have a corresponding day).
4.2. Invoicing and Payment. Subscriber will provide AMG with valid and updated credit card information, or with an alternative payment method reasonably acceptable to AMG. If Subscriber provides credit card information to AMG, Subscriber authorizes AMG to charge such credit for all Fees due hereunder. Such charges shall be made in advance, either monthly or annually. Subscriber is responsible for maintaining complete and accurate billing and contact information in its account.
5. Suspension or Cancelation of Access to the Platform. If any amount owing by Subscriber under this or any other agreement for services is twenty-one (21) or more days past due, AMG may, without limiting its other rights and remedies, suspend or cancel Subscriber’s access to the Platform (including without limitation Subscriber’s access to all Data) until such amounts are paid in full.
6. Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Subscriber is solely responsible for paying all Taxes associated with this Agreement. If AMG has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides AMG with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. License Grant. Subscriber hereby grants to AMG, under all of its applicable intellectual property rights, a world-wide, non-exclusive, royalty-free, license to use Data and Subscriber Marks in conjunction with the provision of the Platform to Subscriber and its Users under this Agreement. Further, Subscriber grants and agrees to grant to AMG a non-exclusive, transferable license to use such Data (a) for statistical use (provided that such data is not disclosed if it is personally identifiable to Subscriber); (b) on an aggregated basis, for any lawful purpose (again, provided that such data is not disclosed if it is personally identifiable to Subscriber), and (b) as necessary to monitor and improve the Platform.
8. Intellectual Property Ownership.
8.1. Ownership of the Works. All right, title, and interest in the Platform, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, all copyrights, patents, trade secrets, trade dress, and other proprietary rights, and any derivative works thereof (including Improvements), shall belong solely and exclusively to AMG or its licensors, and Subscriber shall have no rights whatsoever in any of the foregoing except as expressly set forth herein. Subscriber acknowledges that the Platform is comprised of valuable trade secrets and is the confidential information of AMG and/or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to Subscriber or its Users an ownership interest in the Platform, in whole or in part. All content and materials included as part of the Platform, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Works”) are the property of AMG and are protected by copyrights, trademarks, trade secrets, or other proprietary rights, and these rights are valid and protected in all forms, media, and technologies existing now or hereinafter developed. All Works are copyrighted as individual works and as a collective work under the U.S. copyright laws and international treaty provisions, and AMG owns a copyright in the selection, coordination, arrangement and enhancement thereof. Subscriber may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as expressly contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Works is strictly prohibited. Subscriber understands and acknowledges that unauthorized disclosure, use or copying of the Works may cause AMG and its licensors irreparable injury, which may not be remedied at law, and agrees that AMG’s and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
8.2. Ownership and Use of Data. Subject to Section 7, as between AMG and Subscriber, Subscriber exclusively owns all rights, title, and interest in and to all of its Data. AMG will not use such Data for any purpose other than to provide the Platform to Subscriber.
8.3. Suggestions. AMG shall have and Subscriber hereby grants a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Platform and any derivatives thereof any suggestions, enhancement requests, recommendations, or other feedback provided by Subscribers (including Users), relating to the Platform.
9. Trademarks. The AMG or Gateway Marketing.com name and logo and other related names, design marks, product names, feature names, and related logos are trademarks of AMG and may not be used, copied, or imitated, in whole or in part, without the express prior written permission of AMG. In addition, except as otherwise set forth herein, the look and feel of the Platform (including all page headers, custom graphics, button icons, and scripts) constitutes the service marks, trademarks, and trade dress of AMG and may not be copied imitated or used, in whole or in part, without the express prior written permission of AMG.
11. Links to External Sites. The Site and the Platform may contain links to other web sites. AMG is not responsible for the availability of these external sites nor does it endorse the activities or services provided by these websites. Under no circumstances will AMG be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to a user in connection with the use of or reliance on any content, goods, or services available on such external websites.
12. Third-Party Service Providers. The Platform may include Third-Party Applications or may be fulfilled by third-party providers who are acting on behalf of AMG. Subscriber acknowledges and agrees that AMG may allow providers of those Third-Party Applications to access its Data as required for the interoperation of such Third-Party Applications with the Platform.
13. Warranties and Disclaimers.
13.1. Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
13.2. Subscriber Warranties. Subscriber represents and warrants that the methods and practices used to collect Data provided to AMG hereunder will at times be in compliance with U.S. or State laws, rules, and or regulations (including, without limitation, the CAN-SPAM Act (15 U.S.C. §§ 7701 – 7713), and all other applicable federal and state consumer protection laws) and any Subscriber privacy policies or statements, and that it has full right, power and authority, and all necessary consents, to provide and disclose the Data to AMG for purposes of providing the Platform and other Services under this Agreement. Subscriber further represents and warrants that it has received all necessary licenses, permits, certifications and approvals (including for attorneys any necessary state bar licenses and specialty certifications) required by any governmental or certification authority to operate its business and to advertise, offer or provide its products and services (collectively, “Regulatory Approvals”), that it is in good standing and in compliance with any professional licensing organization that governs its business, and that it is not subject to any disciplinary or other proceedings that might invalidate its Regulatory Approvals or licensing status.
13.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AMG MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND AMG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
14. Mutual Indemnification.
14.1. Indemnification by AMG. AMG shall defend, hold harmless and indemnify Subscriber against any claim, demand, suit, cost (including attorney’s fees), penalties, investigation or proceeding (collectively, a “Claim”) made or brought against Subscriber by a third party alleging that the use of the Platform as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Subscriber for any damages finally awarded against Subscriber in connection with any such Claim; provided, that Subscriber (a) promptly gives AMG written notice of the Claim; (b) gives AMG sole control of the defense and settlement of the Claim; and (c) provides AMG all reasonable assistance, at Subscriber’s expense.
14.2. Indemnification by Subscriber. Subscriber shall defend, hold harmless and indemnify AMG against any Claim made or brought against AMG by a third party (a) alleging that Subscriber’s Data, or Subscriber’s use of the Platform in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law; (b) based on Subscriber’s products and services or claims or advertising related to Subscriber’s products and services, including any material on Subscriber’s website; (c) based on any failure to Subscriber to obtain Regulatory Approvals for its business, products or services; (d) based on any breach of any representation or warranty hereunder by Subscriber; or (e) in any other way relating to or arising from Subscriber’s Data, including but not limited to violations of CAN-SPAM, or a breach of Subscriber’s Responsibilities set forth in Section 2.3, and shall indemnify AMG for any damages finally awarded against, and for reasonable attorneys fees incurred by, AMG in connection with any such Claim; provided, that AMG (i) promptly gives Subscriber written notice of the Claim; (ii) gives Subscriber sole control of the defense and settlement of the Claim (provided that Subscriber may not settle any Claim unless the settlement unconditionally release AMG of all liability); and (iii) provides to Subscriber all reasonable assistance, at AMG’s expense.
14.3. Exclusive Remedy. This Section 14 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
15. Limitation of Liability. IN NO EVENT SHALL AMG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $10,000 OR THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
16. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL AMG HAVE ANY LIABILITY TO SUBSCRIBER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
17.1. Definition of Confidential Information. As used herein, Confidential Information means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Subscriber’s Confidential Information shall include its Data; AMG’s Confidential Information shall include the Platform; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Subscriber’s Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
17.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
17.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
18. Term and Cancellation of Subscription.
18.1. Term. This Agreement will commence on the date listed on the confirmation email sent to Subscriber and, unless Subscriber is currently under a month-to-month subscription, will continue for a period of 12 months (the “Initial Term”) and will automatically renew for additional one-month terms (each, a “Renewal Term”) unless either party notifies the other party of its intent to not renew at least 30 days prior to the end of the Initial Term or the then current Renewal Term. The Initial Term and all such Renewal Terms are collectively referred to as the “Term.”
18.2. Cancellation of Subscription. If Subscriber elects to cancel its subscription to the Platform, Subscriber must call AMG at 1-877-700-0663 and speak with a qualified AMG representative, who will confirm cancellation via email. Cancellation and termination of this Agreement will be effective within 5 business days of receipt of the email, if Subscriber cancels during the Initial Term, and within 30 days if Subscriber cancels within any Renewal Term or other month-to-month subscription. AMG reserves the right to suspend Subscriber’s access to the Platform and terminate this Agreement at any time upon notice to Subscriber.
18.3. Effect of Termination. In no event shall termination relieve Subscriber of the obligation to pay any Fees payable to AMG for the period prior to the effective date of termination. If the effective date of termination is prior to the end of the subscription month, Fees for such partial month will be prorated. If Subscriber cancels its subscription prior to the expiration of the Initial Term, Subscriber agrees to pay an early termination fee of 50% of the Fees payable during the remainder of the Initial Term. If Subscriber prepaid any Fees, AMG will refund to Subscriber such prepaid Fees covering the remainder of the term of all subscriptions after the effective date of termination; provided that if Subscriber received a prepayment discount, the amount refunded will be less any applicable discount for the periods prior to the effective date of termination.
19. General Provisions.
19.1. Governing Law; Venue. This Agreement shall be governed by Ohio law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Platform shall be subject to the exclusive jurisdiction of the state and federal courts located in Cleveland, Ohio.
19.2. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
19.3. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Subscriber shall not permit Users to access or use the Platform in violation of any U.S. export embargo, prohibition or restriction.
19.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
19.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
19.6. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
19.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
19.8. Attorney Fees. Subscriber shall pay on demand all of AMG’s reasonable attorney fees and other costs incurred by AMG to collect any Fees or charges due AMG under this Agreement.
19.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
19.10. Survival. Rights and obligations under this Agreement which by their nature should survive, including, but not limited to any and all payment obligations invoiced prior to the termination or expiration hereof, will remain in effect after termination or expiration hereof.
19.11. Amendment. This Agreement will not be changed, modified, or amended except by a writing executed by both parties or if Subscriber electronically accepts a subsequent agreement or amendment delivered by AMG via the Platform.
19.12. Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.