Terms

This Terms of Service Agreement ("Agreement") is entered into as of the date on which the Customer first applies for and/or uses the Marketplace Earth Services (as defined below) ("Effective Date") by and between Marketplace Earth, LLC and its affiliates ("Marketplace Earth", “we”, “us” and “our”) and Customer ("Customer", “you” and “your”) individually, a “Party” and collectively the “Parties”).

R E C I T A L S
WHEREAS, Marketplace Earth is a service provider that offers access to, and use of, certain applications and design services including a fully integrated set of web-based modules and e-commerce storefront templates, design, software and shopping cart functionality ("Marketplace Earth Services") and implementation support to initiate such access and use.

WHEREAS, Customer wants to access and use the Marketplace Earth Services under the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, Customer and Marketplace Earth agree to the foregoing and as follows:

ARTICLE 1—GENERAL
1.1 Overview of Agreement. This Agreement represents the terms and conditions under which Marketplace Earth shall provide Customer access to and use of the Marketplace Earth Services package or packages subscribed to ("Marketplace Earth Services Package"), which may be amended from time to time to reflect additional or amended Marketplace Earth Services ordered by Customer. Additional services and/or deliverables may be procured consistent with the terms of this Agreement. Any attempt by the Customer to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in any other document shall be void and of no force and effect.

ARTICLE 2—ADAPTCOMMERCE SERVICES
2.1 Equipment. Customer will be responsible for procuring, at Customer's sole expense, all equipment or other software (including licenses necessary to use currently-supported versions thereof) , if any, required to use Marketplace Earth Services. For such third party hardware or software, Customer shall only receive the manufacturer's warranty, if any, and shall receive no warranties from third parties for any such third party hardware or software.

2.2 Access Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer's employees ("Authorized Users") to use the Marketplace Earth Services Package and related documentation solely for Customer's business purposes consistent with the terms and conditions of this Agreement. By purchasing or otherwise applying for Marketplace Earth service(s), you agree to establish an account with us for such services. Marketplace Earth will issue to one Authorized User ("Marketplace Earth Administrator") an individual logon identifier and password ("Administrator's Logon") for purposes of administering the Marketplace Earth Services Package. Customer acknowledges and agrees that its Marketplace Earth Administrator shall be your agent with the full authority to act on behalf of and is authorized to bind Customer in connection with any service provided to Customer under this Agreement. Using Administrator's Logon, the Marketplace Earth Administrator shall assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules that control each such Authorized User's access to the Marketplace Earth Services Package. Customer shall ensure that each Authorized User will: (a) be responsible for the security and/or use of his or her logon identifier; (b) not disclose such logon identifier to any person or entity; (c) not permit any other person or entity to use his or her logon identifier; (d) use the Marketplace Earth Services Package consistent with the assigned business rules; and (e) use the Marketplace Earth Services Package in accordance with the terms and conditions of this Agreement. Customer will be responsible for: (f) advising each Authorized User of his or her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (g) any and all costs and expenses incurred through the use of Customer's Logon. When the Customer or Marketplace Earth Administrator uses the account or permits someone besides the Customer or the Marketplace Earth Administrator to use your account to purchase or otherwise acquire access to additional Marketplace Earth service(s) or to modify or cancel your Marketplace Earth service(s) (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Marketplace Earth reserves the right to deny, suspend, terminate or revoke access to the Marketplace Earth Services, in whole or in part, if Marketplace Earth believes Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the Marketplace Earth Services inconsistent with the terms and conditions of this Agreement. Any acceptance of your application(s) or requests for Marketplace Earth Services and the performance of such services will occur at Marketplace Earth's offices in Fort Thomas, Kentucky , the location of Marketplace Earth's principal places of business.

2.3 Restrictions. The customer is expected to be familiar with and to practice good Internet etiquette (“Netiquette”). The customer will comply with the rules appropriate to any network to which Marketplace Earth may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, in violation of any law, libelous, defamatory, tortious, indecently depicts children, violates any third party's rights, including but not limited to intellectual property rights or is likely to result in retaliation against Marketplace Earth by offended users. Marketplace Earth reserves the right to refuse, suspend, revoke, or terminate service at any time for violation of this section. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group. In the event that Marketplace Earth exercises its right to revoke, suspend or terminate your Marketplace Earth Services, Customer will not receive a refund of any monies paid to Marketplace Earth.

Customer agrees that Customer and its Authorized Users will not: (a) sell, lease, transfer, license or sublicense the Marketplace Earth Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the Marketplace Earth Services in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the Marketplace Earth Services by, any third party; (d) copy or reproduce all or any part of the Marketplace Earth Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the Marketplace Earth Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the Marketplace Earth Services; (g) knowingly introduce into or transmit through the Marketplace Earth Services or any other services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Marketplace Earth Services; or (i) engage in or allow any action involving the Marketplace Earth Services that is inconsistent with the terms and conditions of this Agreement.

2.4 Non-Exclusivity. The parties acknowledge and agree that Marketplace Earth is providing access to and use of the Marketplace Earth Services to multiple customers and that such services are non-exclusive.

2.5 Availability and Software Use. Marketplace Earth shall use commercially reasonable efforts to keep the Marketplace Earth Services Package available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes, unscheduled maintenance and systems outages. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, Marketplace Earth makes no guarantees that any given user will be able to access the Marketplace Earth Services Package at any given time, and Marketplace Earth shall not be liable to Customer for failure of accessibility to the Marketplace Earth Services Package or any potential or actual losses that Customer may suffer from Customer's inability to access or use Marketplace Earth Services or your customer's inability to access any websites that may be supported by Marketplace Earth Services.

Customer agrees and acknowledges that any software or applications that are provided as a part of the Marketplace Earth Services may include errors or bugs that may result in erroneous information, including but not limited to, computations and calculations, for the Customer. Customer agrees that Marketplace Earth is not responsible or liable for any errors, bugs, malfunctions, or incomplete or erroneous information that may result from Customer's use of Marketplace Earth Services or from any related software or applications that are provided by Marketplace Earth or a third party. Customer agrees and acknowledges that any tax computation(s) that Customer generates or requests from Marketplace Earth Services may not be reliable and Customer should therefore always use a third party professional to calculate any and all taxes. Customers expressly agrees that Marketplace Earth is not responsible or liable in any way to the Customer for the accuracy of any tax computation or calculation of any kind that the Customer performs using Marketplace Earth Services, any related software or applications.

2.6 Marketplace Earth's Licensors.
2.6.1 Terms and Conditions applicable to services provided by Marketplace Earth's Licensors. Customer acknowledges and agrees that Marketplace Earth Services are provided, in some cases, by third party Licensors to Marketplace Earth (hereinafter “Third Party Licensors”). For all Marketplace Earth Services contained in the Marketplace Earth Service Package that are provided by Third Party Licensors to Marketplace Earth, Customer agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Such Third Party Licensor terms and conditions are available upon request (the “Additional Terms and Conditions”). Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Customer acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into this Agreement, to the extent those Additional Terms and Conditions do not conflict with the terms and conditions of this Agreement, as if set forth fully herein. Customer further agrees that it will be subject to all Additional Terms and Conditions where Customer elects to add services to its Marketplace Earth Services Package.

2.6.2 Changes to Marketplace Earth Licensors. Customer acknowledges that Marketplace Earth may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the Marketplace Earth Services. Marketplace Earth agrees to use reasonable efforts to prevent any service interruptions associated with Marketplace Earth's decision, if any, to change Third Party Licensors. In the event that Marketplace Earth changes Third Party Licensors, Marketplace Earth may provide Customer with notification of changes in Third Party Licensors and refer Customer to information posted on Marketplace Earth's website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement.


ARTICLE 3—FEES; PAYMENT TERMS
3.1 Application and Use Fee. As consideration for the services you purchased from Marketplace Earth, Customer shall pay any application fees, user fees, including but not limited to monthly fees and any taxes. Customer shall pay all amounts due under any invoice to Marketplace Earth within ten (10) calendar days of due date. All payment of fees for Marketplace Earth Services shall be in U.S. dollars.

3.2 Late Payments. If Customer fails to pay any fees by the applicable due date, Marketplace Earth will have the right to: (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the Marketplace Earth Services and/or performance of the services provided by Marketplace Earth hereunder and/or terminate this Agreement. Any such suspension or termination will not relieve Customer from paying any outstanding fees plus interest and late charges. Customer will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys' fees, court costs and collection agency fees.

3.3 Taxes. Customer will pay or reimburse Marketplace Earth for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Marketplace Earth under this Agreement, excluding, however, income taxes or gross receipts taxes which may be levied against Marketplace Earth. Such taxes may be reflected on Customer invoices.

ARTICLE 4—LIMITED WARRANTIES
4.1 Customer Warranty. Customer represents and warrants to Marketplace Earth that: (a) Customer has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Customer's application or actual use of any Marketplace Earth Services will not directly or indirectly violate the legal rights of any third party; (c) Customer and its Authorized Users will only use the Marketplace Earth Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; (d) Customer will use all necessary security options with any equipment or software that Customer uses in conjunction with Marketplace Earth Services; (e) Customer agrees to abide by all applicable laws and regulations and (g) Customer warrants that it is not located in a country where export or re-export of the contents of information received via the Internet is prohibited. Should Customer receive notice of any claim regarding the Marketplace Earth Services, Customer shall promptly provide Marketplace Earth with a written notice of such claim.

4.2 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, ADAPTCOMMERCE MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE SERVICES AND/OR ACCESS TO OR USE OF THE ADAPTCOMMERCE SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. YOU AGREE THAT YOUR USE OF ADAPTCOMMERCE SERVICE(S) OR OUR LICENSORS' SERVICES IS SOLELY AT CUSTOMER'S OWN RISK. CUSTOMER AGREES THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. WE AND OUR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER ADAPTCOMMERCE NOR OUR LICENSORS MAKE ANY WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE OR OUR LICENSORS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY CUSTOMER FROM A THIRD PARTY.



ARTICLE 5—LIMITATION OF LIABILITY
YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY ADAPTCOMMERCE SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL ADAPTCOMMERCE, ITS LICENSORS AND CONTRACTORS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES PROVIDING SERVICES AS PART OF THE SUBSCRIPTION SERVICE FOR WEBSITES FROM ADAPTCOMMERCE) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF ADAPTCOMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN ADAPTCOMMERCE'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES. Marketplace Earth and its licensors and contractors disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from erroneous computations, data non-delivery or mistaken delivery of the data; (3) loss or liability resulting from acts of god; (4) loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication option; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages; (7) loss or liability resulting from the development or interruption of your web site or your Marketplace Earth web site; (8) loss or liability that you may incur in connection with our processing of your application for our services, our processing of any authorized modification to your account or your agent's failure to pay any fees, including the initial fee or renewal fee; (9) loss or liability as a result of the application of our dispute policy; or (10) loss or liability relating to limitations, incompatibilities, defects, or other problems inherent in xml, php, or any other standard, software or application not under Marketplace Earth sole control. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM SHALL BE FOREVER BARRED.

ARTICLE 6—INDEMNIFICATION
You agree to release, indemnify, defend and hold harmless Marketplace Earth and any of our (or their) contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, relating to or arising out of (a) this Agreement or the breach of your warranties, representations and obligations under this Agreement, (b) the Marketplace Earth services or your use of such services, including without limitation infringement or dilution by you, or someone else using our service(s) from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our operating rules or policies relating to the service(s) provided, (e) any information or data you supplied to Marketplace Earth, including, without limitation, any misrepresentation in your application, if applicable, (f) the inclusion of meta-tags or other elements in any website created for you or by you via the Marketplace Earth services, or (g) any information, material, or services available on your web site. When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. We shall have the right to participate in any defense by you of a third-party claim related to your use of any of the Marketplace Earth services, with counsel of our choice at our own expense. We shall reasonably cooperate in the defense at your request and expense. You shall have sole responsibility to defend us against any claim, but you must receive our prior written consent regarding any related settlement. The terms of this paragraph will survive any termination or cancellation of this Agreement.

ARTICLE 7—CONFIDENTIAL INFORMATION
"Confidential Information" will include the terms of this Agreement, any software provided by Marketplace Earth under this Agreement, the logon identifiers and/or passwords provided to Customer and each Authorized User, the prices and fees charged under this Agreement, any other materials marked confidential and any other information conveyed under this Agreement that is identified in writing as confidential or that the Customer should reasonably believe to be confidential at the time of its conveyance. Customer acknowledges and agrees that: (a) the Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of Marketplace Earth to any third party without Marketplace Earth's prior written consent. Customer will take all reasonable precautions necessary to safeguard the confidentiality of Marketplace Earth's 's Confidential Information including, at a minimum, those precautions taken by Customer to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (d) publicly available; (e) already in the other party's possession and not subject to a confidentiality obligation; (f) obtained by the other party from any source without any obligation of confidentiality; (g) independently developed by the Customer without reference to the disclosing party's Confidential Information; or (h) required to be disclosed by order of a court or other governmental entity; provided no less than ten (10) days written notice is given to Marketplace Earth so that Marketplace Earth may obtain a protective order or other equitable relief.

ARTICLE 8—PROPRIETARY RIGHTS
No right (except for the license granted in Section 2.2), title or interest of intellectual property or other proprietary rights in and to the Marketplace Earth Services and/or other products or services made available under this Agreement is transferred to Customer hereunder. Marketplace Earth, its affiliates and its Third Party Licensors retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the Marketplace Earth Services and/or other products or services provided under this Agreement. Except as otherwise set forth herein, all right, title and interest in and to all: (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Marketplace Earth Services identified herein ("Marketplace Earth Intellectual Property Rights") are owned by Marketplace Earth, its affiliates or its licensors, and you agree to make no claim of interest in or ownership of any such Marketplace Earth Intellectual Property Rights. You acknowledge that no title to the Marketplace Earth Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in Marketplace Earth's, its affiliates' or its licensors' service, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted; or any work that is primarily designed and architected by Marketplace Earth) such Derivative Work shall be owned by Marketplace Earth and its affiliates and all right, title and interest in and to each such Derivative Work shall automatically vest in Marketplace Earth and its affiliates. Marketplace Earth and its affiliates shall have no obligation to grant you any right in any such Derivative Work. Customer will retain all right, title and interest to the documents created by Customer using the Marketplace Earth Services, subject to any rights of Marketplace Earth and its affiliates to any Derivative Work or underlying documents, graphics, images, data or information.

ARTICLE 9—TERM AND TERMINATION
9.1 Cancellation Procedure. Customer is responsible for all Marketplace Earth Service charges up to and including the day client cancels Marketplace Earth Services. To cancel Marketplace Earth Service the customer must call our toll free number (listed on website) and ask for our customer service department. A customer service representative will verify that the person calling is the owner of the site and will issue a cancellation verification to the customer via phone, email and/or facsimile. The cancellation verification will serve as proof that the site and service has been cancelled. The customer is responsible for all outstanding charges up to the time the cancellation number is issued.

Cancellation of store front software does not release client from any long term contracts that client might have signed with Marketplace Earth.

9.2 Term. This Agreement will commence as of the Effective Date and shall continue thereafter on a month to month basis unless terminated pursuant to Section 2.6.2, 9.2 or 9.3, OR UPON TELEPHONE NOTICE TO THE ADAPTCOMMERCE BILLING DEPARTMENT. ANY EMAIL NOTICE WILL BE DISREGARDED. WRITTEN NOTICE MAY BE MAILED DIRECTLY TO ADAPTCOMMERCE AT:

P.O. BOX 75047
Fort Thomas, KY 41075

9.3 Termination by Marketplace Earth. Marketplace Earth shall have the right, upon written notice to Customer, to terminate this Agreement if: (a) Customer fails to timely pay Marketplace Earth any amount due to Marketplace Earth under this Agreement; (b) Customer breaches any term or condition this Agreement; (c) Customer (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes (d) Customer's use of Marketplace Earth's Service results in a potential or actual third party claim against Marketplace Earth.

9.4 Termination by Customer. Customer will have the right, upon written notice to Marketplace Earth, to terminate this Agreement if Marketplace Earth is in material breach of this Agreement and Marketplace Earth fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice.

9.5 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason: (a) Customer's access to, and use of, the Marketplace Earth Services will terminate; (b) Customer will return to Marketplace Earth any and all Marketplace Earth Services, equipment, software, documentation or other deliverables provided to Customer by Marketplace Earth including any copies thereof held by Customer; (c) Marketplace Earth will deliver to Customer all Customer documents and other materials (which may be obtained using Marketplace Earth's create export file function) stored by Customer on the Marketplace Earth Network; and (d) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.

9.6 Survival. Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement, including but not limited to Section 2.4, and Articles 6, 7, and 8.

ARTICLE 10—MISCELLANEOUS
10.1 Notices and Announcements. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) if to Customer, upon transmission if sent via fax, with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier, in each case addressed, in the case of Customer, the address listed in Marketplace Earth's records, or in the case of Marketplace Earth, to P.O. Box 75047 (or to such other address as may be specified upon notice). You authorize us to contact you as our customer via telephone, at the number provided by you in your account information (as updated by you pursuant to this Agreement), which telephone number is incorporated herein by reference, e-mail or postal mail regarding information that we deem is of potential interest to you. Notices and announcements may include commercial e-mails, telephone solicitations and other notices describing changes, upgrades, new products and services or other information pertaining to Internet security or to enhance your identity on the Internet and/or other relevant matters.

10.2 Assignment and Resale. Customer will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without Marketplace Earth's prior written consent, which consent may be withheld, delayed or conditioned in Marketplace Earth's discretion. Marketplace Earth will have the right to assign this Agreement, in whole or in part, to a third party at any time. Customer agrees not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without Marketplace Earth's prior express written consent.

10.3 Force Majeure. Neither party shall be deemed in default to the other or to third parties for any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott, or power, communications, satellite or network failures provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Marketplace Earth may immediately terminate this Agreement.

10.4 Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of Marketplace Earth and Customer. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by an authorized representative of Marketplace Earth and Customer; (b) any oral modifications to this Agreement; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of Marketplace Earth to enforce, or the delay by Marketplace Earth in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by Marketplace Earth of any of its rights under this Agreement. The remedies of Marketplace Earth under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies.

10.5 Severability. You agree that the terms of this Agreement are severable . If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless Marketplace Earth in good faith deems the unenforceable provision to be essential, in which case Marketplace Earth will have the right to terminate this Agreement.

10.6 Public Announcements. Customer grants Marketplace Earth the right to use Customer's name in press releases, product brochures and financial reports indicating that Customer is a customer of Marketplace Earth.

10.7 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.

10.8 Third Party Beneficiaries. Customer acknowledges that some Marketplace Earth Services may be provided by Third Party Licensors. Third Party Licensors are third party beneficiaries to this Agreement, and there are no other third party beneficiaries to this Agreement.

10.9 Governing Law; Jurisdiction; Dispute Resolution with Third Party Licensors.

The parties acknowledge and agree that Section 10.9 is a key and necessary provision of this Agreement and the Marketplace Earth Services would not be available at this price and under these terms unless this provision is a part of this Agreement. Accordingly, You and Marketplace Earth agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the Commonwealth of Kentucky , United States of America , excluding its conflict of laws rules. You and Marketplace Earth each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the Commonwealth of Kentucky District of Campbell County for any disputes between you and Marketplace Earth under, arising out of, or related in any way to this Agreement (whether or not such disputes also involve other parties in addition to you and Marketplace Earth). The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

10.10 Non-solicitation. Customer acknowledges and agrees that the employees and consultants of Marketplace Earth are a valuable asset to Marketplace Earth and difficult to replace. Accordingly, Customer agrees that, during the term of this Agreement and for a period of twelve (12) months after the expiration and non-renewal or termination of this Agreement, Customer will not solicit or attempt to solicit any employee or consultant of Marketplace Earth.

10.11 Customer Security Responsibilities. The Customer is solely responsible for any breaches of security affecting servers under Customer is involved in an attack on another server control. If a Customer's server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the Customer is responsible for the cost to rectify any damage done both to the customer's item and any other related area affected by the security breach. The labor used to rectify any such damage is categorized as emergency security breach recovery and is currently charged at $250 USD per hour. Enquiries regarding security matters may be directed to Head of Security at support@marketplaceearth.com .

10.12 System And Network Security . Violations of system or network security are prohibited, and may result in criminal and civil liability. Marketplace Earth may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:

Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.
Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Marketplace Earth. Such labor is categorized as emergency security breach recovery and is currently charged at $250 USD per hour required. Enquiries regarding security matters may be directed to Head of Security at support@MarketplaceEarth.com .

Marketplace Earth is concerned with the privacy of online communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, Marketplace Earth urges its customers to assume that all of their online communications are unsecure. Marketplace Earth cannot take responsibility for the security of information transmitted over Marketplace Earth's facilities.

10.13 Lawful Purpose. All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or any AUP is prohibited. This includes, but is not limited to: copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fraudulent content.

Servers hosted within Marketplace Earth network are open to the public. You are solely responsible for your usage of the Marketplace Earth network and servers and any statement you make on servers hosted within the Marketplace Earth network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.

10.14 Unsolicited Commercial Email/Unsolicited Bulk Email (UCE/UBE). Unsolicited commercial email (UCE) is defined by Marketplace Earth as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc…) sent for purposes of distributing commercial information of any kind, soliciting the purchase or sale of products or services or soliciting any transfer of funds to a recipient who has not agreed to receive such communication.

Unsolicited bulk e-mail (UBE) is defined by Marketplace Earth as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc…) to multiple recipients who have not agreed to receive such communication.

Use of the Marketplace Earth network, servers or services to transmit any unsolicited commercial or unsolicited bulk-e-mail is expressly prohibited, as is hosting web sites or services on a server, which are advertised in any UCE/UBE.

Additionally, Marketplace Earth customers are expressly prohibited from sending any UCE/UBE from our network or any email from another network that in any way references a document, image, or Web site that resides on the Marketplace Earth network or in one of our data centers. Violations of this type may result in the termination of the offending Marketplace Earth account without refund. Our customers are ultimately responsible for any violations of the Marketplace Earth Acceptable Use Policy (“AUP”) by their clients, and any violation of the AUP by a client of a Marketplace Earth customer shall be deemed a violation of the AUP by such Marketplace Earth customer.

10.15 All customers of Marketplace Earth are required to have up-to-date and valid contact information on file with their registrar for any domain hosted on the Marketplace Earth network.


10.16 Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.

10.17 Privacy Statement, (a)The Privacy Policy for Marketplace Earth as it related to its Customers and the Marketplace Earth Services you have purchased is located at www.MarketplaceEarth.com and is incorporated herein by reference. The applicable privacy statement sets forth your and our rights and responsibilities with regard to your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Web site at least thirty (30) calendar days before it becomes effective. You agree that, by using our services after modifications to the privacy statement become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us. We will not process the personal data that we collect from you in a way incompatible with the purposes and other limitations described in our privacy statement. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (i) the purposes for which such third party's personal data has been collected, (ii) the intended recipients or categories of recipients of the third party's personal data, (iii) which parts of the third party's data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, rectify the data held about them. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals nor for your providing outdated, incomplete or inaccurate information.

10.18 Modifications to Agreement. Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the Services provided under this Agreement at any time. Any such revision or change will be binding and effective on you through your continued use of the Marketplace Earth Services after any such revisions. You agree to periodically review our Web sites, including the current version of this Agreement available on our Web sites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as expressly noted otherwise in one or more of the Schedules to this Agreement, but you will not incur any additional fees. By continuing to use Marketplace Earth Services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Web site of a general informational nature. No employee, contractor, agent or representative of Marketplace Earth is authorized to alter or amend the terms and conditions of this Agreement.

10.19 Agreement to be Bound. By applying for a Marketplace Earth Service(s) through our online application process or otherwise, or by using the Service(s) provided by Marketplace Earth under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and any and all documents incorporated by reference.

10.20 Independent Parties. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.

10.21 Export Restriction. Customer acknowledges and agrees that Customer shall not import, export, or re-export directly or indirectly, any commodity, including Customer's products incorporating or using any Marketplace Earth Services in violation of the laws and regulations of any applicable jurisdiction.

Trademark and Copyright Legal Notices
Marketplace Earth, the Marketplace Earth logo among others, are registered trademarks and/or registered service marks of Marketplace Earth, LLC, or one of its affiliates, in the United States and other countries.

Other brands or product names are trademarks or service marks of their respective owners, should be treated as such, and may be registered in various jurisdictions.

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