1. Your Agreement with MKAdvantage, Inc.
1.1. Your use of the VirtuOps website, service or software (the website, the "Service" or the “Software”) is governed by this agreement and relevant license agreements (the "Terms"). "MKAdvantage, Inc." means MKAdvantage, Inc., and its subsidiaries or affiliates involved in providing the Service.
1.2. In order to use the Service, you must first agree to the Terms. You can agree to the Terms by actually using the Service. You understand and agree that MKAdvantage, Inc. will treat your use of the Service or Your clicking “accept” on the license agreement as acceptance of the Terms from that point onwards.
1.3. You may not use the Service if you are a person barred from receiving the Service under U.S. international law or other countries including the country in which you are resident or from which you use the Service. You affirm that you are over the age of 13, as the Service is not intended for children under 13.
2. Your Account and Use of the Service
2.1. You must provide accurate and complete registration information any time you register to use the Service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify MKAdvantage, Inc. immediately.
2.2. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software. You agree not to use the Service in the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons.
2.3. You agree not to (a) access (or attempt to access) the administrative interface of the Service by any means other than through the interface that is provided by MKAdvantage, Inc. in connection with the Service, unless you have been specifically allowed to do so in a separate agreement with MKAdvantage, Inc., or (b) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).
3. Service Policies and Privacy
3.1. You agree to comply with the VirtuOps service or software Program Policies included available at Program Policies (or such URL as MKAdvantage, Inc. may provide) (the "Program Policies") which is incorporated herein by this reference and which may be updated from time to time.
3.3. You agree that you will protect the privacy and legal rights of the users of your application. You must provide legally adequate privacy notice and protection for those users. If the users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to MKAdvantage, Inc.
4. Fees for Use of the Service
4.1. Subject to the Terms, the Service is provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services can be found here (or such URL as MKAdvantage, Inc. may provide). At its discretion, MKAdvantage, Inc. may allow a user's account to exceed the limits of their plan. Upon notification that their account is over the plan's metric limits, a user has 7 (seven) days to take actions that bring the account back within the limits of their current plan. If no action is taken, the user will be notified, and their account automatically upgraded. Charges for the new plan will be pro-rated for that month.
4.2. For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in the Fees and Payment Policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees MKAdvantage, Inc. incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on MKAdvantage, Inc.'s measurements of your use of the Service, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of MKAdvantage, Inc. and only in the form of credit for the Service. Nothing in these Terms obligates MKAdvantage, Inc. to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to MKAdvantage, Inc. may be shared by MKAdvantage, Inc. with companies who work on MKAdvantage, Inc.'s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to MKAdvantage, Inc. and servicing your account. MKAdvantage, Inc. may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. MKAdvantage, Inc. shall not be liable for any use or disclosure of such information by such third parties. MKAdvantage, Inc. reserves the right to discontinue the provision of the Service to you for any late payments.
4.3. MKAdvantage, Inc. may change its fees and payment policies for the Service by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted in the Service FAQ or the Fees and Payment Policies (or such other URL MKAdvantage, Inc. may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
4.4. You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Service in a manner intended to avoid incurring fees.
5. Content in the Service and Take Down Obligations
5.1. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Service are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content." The term Content shall specifically exclude the application that you create using the Service and any source code written by you to be used with the Service (collectively, the "Application").
5.2. MKAdvantage, Inc. reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Service. You agree to immediately take down any Content that violates the Program Policies, including pursuant to a take down request from MKAdvantage, Inc. In the event that you elect not to comply with a request from MKAdvantage, Inc. to take down certain Content, MKAdvantage, Inc. reserves the right to directly take down such Content or to disable the Application.
5.3. In the event that you become aware of any violation of the Program Policies by an end user of the Application, you shall immediately terminate such end user's account on your Application. MKAdvantage, Inc. reserves the right to terminate end user MKAdvantage, Inc. accounts or disable the Application in response to a violation or suspected violation of the Program Policies.
5.4. You agree that you are solely responsible for (and that MKAdvantage, Inc. has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Service and for the consequences of your actions (including any loss or damage which MKAdvantage, Inc. may suffer) by doing so.
5.5. You agree that MKAdvantage, Inc. has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Application and any Content.
6. Proprietary Rights
6.1. You acknowledge and agree that MKAdvantage, Inc. (or MKAdvantage, Inc.'s licensors) own all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
6.2. Unless you have agreed otherwise in writing with MKAdvantage, Inc., nothing in the Terms gives you a right to use any of MKAdvantage, Inc.'s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
6.3. Except as provided in Section 8, MKAdvantage, Inc. acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or the Application that you create, submit, post, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with MKAdvantage, Inc., you agree that you are responsible for protecting and enforcing those rights and that MKAdvantage, Inc. has no obligation to do so on your behalf.
7. License from You
7.2. You agree that MKAdvantage, Inc., in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.
8. EXCLUSION OF WARRANTIES
8.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 11 AND 12, SHALL EXCLUDE OR LIMIT MKAdvantage, Inc.'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
8.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE."
MKAdvantage, Inc., ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MKAdvantage, Inc., ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.
9. LIMITATION OF LIABILITY
9.1. SUBJECT TO SECTION 8.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT MKAdvantage, Inc., ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
9.2. THE LIMITATIONS ON MKADVANTAGE, INC.'S LIABILITY TO YOU IN PARAGRAPH 9.1 ABOVE SHALL APPLY WHETHER OR NOT MKADVANTAGE, INC. HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
10.1 You agree to hold harmless and indemnify MKAdvantage, Inc., and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively "MKAdvantage, Inc. and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Service, (c) your violation of applicable laws, rules or regulations in connection with the Service, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, MKAdvantage, Inc. will provide you with written notice of such claim, suit or action.
11. Copyright Policy
11.1. You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is MKAdvantage, Inc.'s policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice. For more information, please go to the DMCA Notice (or such URL as MKAdvantage, Inc. may provide).
12. Other Content
12.1. The Services may include hyperlinks to other web sites or content or resources or email content. MKAdvantage, Inc. may have no control over any web sites or resources which are provided by companies or persons other than MKAdvantage, Inc.
12.2 You acknowledge and agree that MKAdvantage, Inc. is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
12.3. You acknowledge and agree that MKAdvantage, Inc. is not liable for any loss or damage which may be incurred by you or users of your Application as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
13. Changes to the Terms
13.1. MKAdvantage, Inc. may make changes to the Terms from time to time. If we change the Terms in any substantive way, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account.
13.2 You understand and agree that if you use the Service after the date on which the Terms have changed, MKAdvantage, Inc. will treat your use as acceptance of the updated Terms.
14. General Legal Terms
14.1. The Terms constitute the whole legal agreement between you and MKAdvantage, Inc. and govern your use of the Service (but excluding any services which MKAdvantage, Inc. may provide to you under a separate written agreement), and completely replace any prior agreements between you and MKAdvantage, Inc. in relation to the Service.
14.2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
14.3. If MKAdvantage, Inc. provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
14.4. You agree that MKAdvantage, Inc. may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.
14.5. You agree that if MKAdvantage, Inc. does not exercise or enforce any legal right or remedy which is contained in the Terms (or which MKAdvantage, Inc. has the benefit of under any applicable law), this will not be taken to be a formal waiver of MKAdvantage, Inc.'s rights and that those rights or remedies will still be available to MKAdvantage, Inc.
14.6. MKAdvantage, Inc. shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
14.7. The Terms, and your relationship with MKAdvantage, Inc. under the Terms, shall be governed by the laws of the State of Illinois without regard to its conflict of laws provisions. You and MKAdvantage, Inc. agree to submit to the exclusive jurisdiction of the courts located within the state of Illinois to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that MKAdvantage, Inc. shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
14.8 For any claim (excluding claims for injunctive or other equitable relief) under these Terms where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
This document is an adaptation of the Google App Engine Terms of Service. The original work has been modified with permission under the Creative Commons Attribution 3.0 License. Google, Inc. is not connected with and does not sponsor or endorse MKAdvantage, Inc. or its use of the work.
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