These Terms and Conditions of Service (The "Terms") apply to you (the "Client") AND your access and use of the services (collectively referred to hereinafter as the "Services", as such Services are described in the Site from time to time) offered by Market Acumen, Inc., doing business as conversionruler.com ("CR") on the World Wide Web site (www.conversionruler.com). Client also is subject to any and all policies, practices, rules, standards and guidelines (collectively referred to as "Site Policies") related to the Site and the Services posted on the Site, as such Site Policies may change from time to time, and the Site Policies are hereby incorporated by reference into these Terms.
All information and content on the CR web site (together with the design, layout and organization and the underlying HTML files that implement the hypertext features, hereinafter referred to as the "Site") may be used solely under the following Terms. By clicking the "Submit" icon on the sign-up screen, or by accessing, browsing or using the information or the Services on the Site, Client expressly accepts and agrees to be bound by the Terms in full. If the following Terms are unacceptable in full, Client must immediately terminate its use of the Site. The Site and these Terms may be changed by CR, in its sole discretion, at any time without notice. Use of the Site subsequent to any change constitutes Client's acceptance of the change. Client is advised to read these Terms each time it accesses the Site for any changes to these Terms.
Through the Site and subject to these Terms, CR may provide Client certain services related to CR's proprietary system for measuring the results of Client's on-line promotional efforts, including but not limited to "pay-per-click" search engine advertising, e-mail promotional campaigns, newsletter or catalog requests, etc. The specific Services provided from time to time by CR are described in the Site. Subject to all of these Terms, Client may access and use one or more of the Services. Client understands and agrees that CR may change, modify, alter, suspend, remove, disable access to, terminate or discontinue all or any portion of the Site and/or the Services at any time for any reason, without notice, cost or liability.
1.2 Availability of Services.
Client understands and agrees that from time to time the Site and/or the Services may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which CR may undertake from time to time; or (iii) causes beyond the control of CR or which are not reasonably foreseeable by CR, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility to the pay-per-click search engine web sites or interfaces, network congestion, or other failures. While CR will attempt to provide the Site and the Services on a continuous basis, Client acknowledges and agrees that CR has no control of the availability of the Sites or the Services of third-party vendors or suppliers. Client, at its sole cost and expense, shall be solely responsible for providing, maintaining and ensuring that all hardware, software, electrical and other physical requirements for Client's use of the Site and the Services, including, without limitation, telecommunications and internet access connections and links, web browsers, bandwidth or other equipment, programs and services required to access and use the Site and the Services, are compatible with the Site and the Services.
1.3 General Limitations.
Client acknowledges and agrees that Client is authorized to access and use the Site and the Services solely to monitor and manage Client's account, and Client's right to access and use Client's account is personal to Client and is non-assignable. Client shall not use the Services, the Site or any CR Content (as defined in Section 2.1 hereof) for any other purpose. Further, CR may from time to time establish general practices and limits concerning access to and use of the Services, including, without limitation, the maximum duration that information will be retained or stored on the Site by CR, and the maximum number of times and duration Client may access and use the Service. CR may change such general practices and limits at any time, in its sole discretion, with or without notice to Client. Client agrees that it will not use any automated means, including, without limitation, agents, robots, scripts or spiders, to access Client's account with CR or to monitor or copy the Services, the Site or any CR Content except those automated means expressly made available by CR, if any, or authorized in advance and in writing by CR. Client agrees that it will not use any device, software or routine to interfere with the proper working of the Site or the Services. Without limitation to the foregoing, Client further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on CR's infrastructure, as determined by CR.
1.4 Termination of Services.
Client understands and agrees that CR may, in its discretion, suspend or terminate Client's access to and use of all or any portion of the Site and/or the Services if Client violates or acts inconsistently with any provision of or the spirit or intent of these Terms, or Client engages in any conduct or activities that CR determines, in its sole discretion, violate the rights of CR or any third party, or is otherwise inappropriate. Client further understands and agrees that CR may suspend, terminate or discontinue all or any portion of the Site and/or the Services at any time for any reason, without notice, cost or liability. Client may terminate service at any time and for any reason only by providing written notice of termination to CR by email. Client's termination notice shall be effective upon receipt of notice by CR. If Client terminates the Services, Client's account will be deemed terminated on the last day of Client's billing cycle during which CR receives written notice of termination from Client in accordance with the provisions of this Section 1.4, and Client's Account Charges through the end of that billing period are non-refundable. Client must remove or otherwise deactivate ConversionRuler Snippets from their website upon termination of their ConversionRuler account. Should the Client fail to remove or otherwise deactivate ConversionRuler code from the Client site within 15 days of account cancellation, CR reserves the right to take measures to deliver alternative images or HTML which may provide promotional materials for CR or third parties. In addition, CR will not be liable for content of promotional materials and any damages which may result from existence of CR Snippets on client web site. Further, upon termination of Client's use of the Services, any information or data stored by CR on the Site or otherwise on behalf of Client shall no longer be available to Client.
2. CR Content and License to Use the Service and the CR Software.
2.1 CR Content.
As between CR and Client, all right, title and interest in the Site and all information it contains, or may contain in the future, including, without limitation, any software and any updates thereof (collectively referred to as the "CR Software"), all copyrights, trademarks, service marks and other intellectual property rights (collectively referred to as the "CR Content"), is the property of CR or its licensors, and is protected by intellectual property laws and international intellectual property treaties. Except as expressly provided herein, nothing contained in these Terms shall be construed as conferring any license or right, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to use the Site or the CR Content displayed on the Site, through the use of framing or otherwise, or the CR Software, without the prior written permission of CR or any third party that may own the trademark or copyright of material displayed on the Site.
2.2 License to Use the Site, Services and CR Software.
Subject to Client's full compliance with these Terms, Client is hereby granted a non-exclusive, nontransferable, revocable, limited license to: (i) use the Site and the Services to view, download, print and use information retrieved from the Site which is generated by Client or CR as a part of the Services; and (ii) use the CR Software for the sole purpose of accessing and using the Services. Client shall not remove or obscure the copyright notice or other notices on the Site, and shall not modify any CR Content on the Site. Except as expressly provided herein, no part of the CR Software, the Services or the Site, including, but not limited to, materials retrieved therefrom and the underlying HTML code, may be used, reproduced, duplicated, republished, copied, reformatted, displayed, reverse engineered, reverse assembled, transmitted, distributed, licensed, sold, resold or exploited in any form or by any means. In no event shall materials from the Site be stored in any information storage and retrieval system without the prior written permission from CR.
CONVERSION RULER and the CONVERSION RULER logo and any future trademarks, service marks or logos on the Site are trademarks of CR (the "CR Marks") or CR's licensor's. Without the prior written consent of CR, Client shall not display or use in any manner any CR Marks or licensor's marks.
Client acknowledges that the Site may contain hyperlinks to third party web sites. Client further understands and agrees that the linked sites are not under the control of CR, and CR is not responsible for, and makes no representations or warranties with respect to, the contents or privacy policies or practices of any linked sites or any link contained therein. The inclusion of a linked site is for Client's convenience only and is not intended and should not be construed as an endorsement or recommendation by CR of the linked site or its content.
4. Client Account and Password.
CR, in its sole discretion, may accept or reject for any reason a prospective client as a customer of the Services. Client must provide all required registration information in order to create an account to access and use any of the Services. By creating an account, Client accepts and agrees to abide by and be bound by all of these Terms. Client represents and warrants to CR that Client shall: (i) provide current, true, accurate and complete information as required for registration of Client's account; and (ii) maintain and promptly update any required registration information required of Client. Upon completing the registration process, Client will be provided a password and account designation.
Client agrees not to access the Services by any means other than through the account, password and interface provided by CR for use in accessing the Services. Client is solely responsible for maintaining the confidentiality of Client's password and the account, and is fully responsible for all activities that occur under Client's password or account, including, without limitation, all charges incurred from use of the Services with Client's password and account.
If any unauthorized use of Client's account or password occurs, Client must notify CR via phone and/or email immediately, and CR will suspend use of the account and password until a new password is in place. Client agrees that any of its agents, representatives, employees, or any other person or entity acting on Client's behalf with respect to the use of the Services, shall be bound by, and shall abide by, these Terms. Client further agrees that Client is bound by these Terms whether Client is acting on its own behalf or on behalf of a third party.
CR employs reasonable security measures to protect against the loss, misuse and alteration of information under its control. Except as stated above, Client shall be solely responsible for the security, confidentiality and integrity of all messages and the content that Client receives, transmits through or stores on the Site.
7. Account Charges and Payment.
7.1 Account Charges.
Client agrees to pay CR all charges and fees for the Services incurred on or through Client's account at the rates set forth in the Site at the time Client orders the Services, and as such rates may change from time to time, plus any and all applicable taxes (the "Account Charges"). Account Charges are non-refundable except as expressly provided in Section 7.4 hereof. CR may change the rates for the Services at any time upon posting on the Site.
Unless otherwise agreed to by CR in writing, Client shall pay all applicable Account Charges in advance by a valid credit card acceptable to CR. Client expressly authorizes CR to charge Client's credit card for any and all applicable Account Charges associated with Client's account hereunder. If for any reason any Account Charges remain unpaid after they are due, such Account Charges shall bear interest at the rate of eighteen percent (18%) annually or the highest rate permitted by law, from the date due until paid in full, plus any applicable collection charges or fees. Client must submit any claims or disputes Client may have with respect to any Account Charges to Client's account in writing to CR within sixty (60) days of such charge otherwise Client waives and releases such claim or dispute and such charge will be final and not subject to challenge by Client.
7.3 Upgrading or Downgrading Services.
Client may not downgrade its level of Service more than one time in any billing cycle without the prior written consent of CR. Client may upgrade its level of Service at any time. If Client upgrades its level of Service, Client will be billed the difference in Account Charges between the level of Services for the days remaining in the billing cycle at the higher level of Service on a prorated basis, and the Account Charges at the upgraded level of Service will apply to Client's next billing cycle. If Client downgrades its level of Service, Client will continue to be billed Account Charges at the higher level of Service for the days remaining in the billing cycle, and the Account Charges at the downgraded level of Service will begin in Client's next billing cycle. There are no refunds of or credits for Account Charges when Client upgrades or downgrades its level of Service.
If CR discontinues the Services, Client will receive a prorated refund for the days remaining in the billing cycle. Client shall not be entitled to a refund for any other reason.
If Client terminates the Services and reactivates or creates a new account within 90 days of termination, Client shall be subject to CR's then-current reactivation fee.
7.6 Promotional Offers.
From time to time, CR may offer special limited promotional trial offers at no charge to Client, as set forth on the Site. In the event Client signs up for a free trail offer, Client hereby authorizes CR to begin billing Client's credit card and Client shall be obligated to pay for the Services beginning on the day after the free trial period expires, at the Account Charges applicable to the level of Services Client is using during the free trial period. Client acknowledges and agrees that it must cancel the Services by notifying CR in writing pursuant to Section 15.2 of these Terms prior to the expiration of the free trial period to avoid incurring Account Charges for a full billing cycle.
8. Client's Representations.
Client represents and warrants to CR that: (i) Client has the power and authority to enter into and perform its obligations under these Terms, and that each person in Client's organization who accesses and uses the Site is authorized by Client to use the Site and the Services for and on behalf of Client; (ii) Client shall not be in violation of any obligation, contract or agreement by entering into these Terms, by performing its obligations under these terms or by authorizing and permitting CR to perform the Services hereunder; (iii) Client shall comply with all of the terms and conditions of these Terms, as amended from time to time; (iv) all information provided by Client to CR or posted on the Site by Client is truthful, accurate and complete, and is not misleading in any way; (v) CR is hereby authorized by Client to perform all Services hereunder on Client's behalf with each applicable pay-per-click search engine or third party; (vi) upon request by CR, Client shall promptly provide a written statement in form acceptable to CR confirming CR's authority hereunder; (vii) Client shall not upload, post, email, transmit or otherwise make available any content, material, data, work, designation, trade or service mark, trade name, link, advertising or services that actually or potentially: (a) violates any applicable law or regulation, including, without limitation, false advertising or unfair competition under the law of any jurisdiction, (b) infringes or misappropriates any proprietary, intellectual property, contract or tort right of any person, or (c) to a reasonable person, may be abusive, obscene, pornographic, defamatory, invasive of privacy, harassing, grossly offensive, vulgar, threatening, malicious, otherwise objectionable or in way derogatory about CR or any other party.
9. Prohibited Conduct.
Client is solely responsible for any and all acts and omissions that occur under Client's account or password in using the Site, the Services and the CR Software, and Client agrees not to engage in any unacceptable use of the Services, which includes, without limitation, use of the Services to: (i) disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial email; (ii) disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, invasive of privacy, harassing, grossly offensive, vulgar, threatening, malicious, otherwise objectionable or in any way derogatory about CR or any other party; (iii) disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the U.S. and its agencies or authorities, or without all required approvals, licenses or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Site or any other computer network; (vii) disseminate, store or transmit viruses, trojan horses or any other malicious code or program; (viii) violate any law or regulation; (ix) engage in any activity the purpose of which is not expressly permitted under these Terms; or (x) engage in any other activity deemed by CR to be in conflict with the spirit or intent of these Terms.
The parties shall maintain the terms and conditions of this Agreement confidential. All information furnished to Client or shared by CR with Client with regard to the CR Software, the Site and the Services will be kept confidential by Client and shall not be disclosed to any third parties except: (i) at the written consent of CR; (ii) to the extent necessary to comply with any law, regulation or valid order of a court or agency of competent jurisdiction; (iii) as a part of its normal reporting requirements to its auditors and attorneys; or (iv) to the extent necessary to permit the performance of its obligations under this Agreement or to enforce its rights under this Agreement. Any information or reports collected and compiled through use of the Services by Client or CR on Client's behalf, will be treated in the same manner as stated above; provided, however, that Client acknowledges and agrees that CR may use any such information on an aggregate basis for CR's own uses.
11. Disclaimer of Warranties.
The site, the services and the CR software are provided on an "as is" and "as available" basis, and CR expressly disclaims all warranties of any kind, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Use of the services is at client's sole risk. Specifically, but without limitation, CR does not represent or warrant, and disclaims any and all responsibility for any loss, injury, claim, liability, penalty or damage of any kind whatsoever resulting from, arising out of or in any way related to: (i) any errors in or omissions from the site and its content, the services, any data, or the CR software, including, but not limited to, technical inaccuracies or typographical errors; (ii) the unavailability or uninterrupted use of the site or the services or any portion thereof or a pay-per-click search engine web site or interface; (iii) defects, viruses or other harmful components on the site or the server that maintains the site or in the CR software; (iv) any third party web sites or content therein directly or indirectly accessed through hyperlinks contained in the site, including, but not limited to, any errors or omissions therefrom; (v) client's use of the site, the services, any data, or the CR software; and (vi) client's use of any equipment or software, including the CR software, in connection with the site or the services. Further, CR does not make any representation or warranty as to any results, economic or otherwise that may be obtained by use of the site, the services, or any data.
12. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL CR BE LIABLE TO CLIENT OR ANY OTHER PERSON, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OR PROFITS, PENALTIES OR ATTORNEYS' FEES, FOR ANY MATTER ARISING FROM OR RELATING TO THE SITE, INCLUDING ITS CONTENT, THE SERVICES, ANY DATA, THE CR SOFTWARE, OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION: (i) CLIENT'S USE OR INABILITY TO USE THE SITE, THE SERVICES, ANY DATA, OR A PAY-PER-CLICK SEARCH ENGINE WEB SITE OR INTERFACE; (ii) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE, THE SERVICES, THE CR SOFTWARE, ANY DATA, OR A PAY-PER-CLICK SEARCH ENGINE WEB SITE OR INTERFACE; (iii) DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA; (iv) ANY MATERIAL OR DATA STORED, SENT OR RECEIVED OR NOT STORED, SENT OR RECEIVED; (v) ANY TRANSACTION OR AGREEMENT ENTERED INTO AS A RESULT OF CLIENT'S USE OF THE SITE OR THROUGH THE SERVICES; OR (vi) ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICES; WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, REGARDLESS OF ANY NEGLIGENCE OF CR. IF CLIENT IS DISSATISFIED WITH THE SERVICES, CLIENT'S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR CLIENT TO TERMINATE OR DISCONTINUE USE OF THE SERVICES.
Client agrees to indemnify, hold harmless and defend CR, its affiliates, and its and their shareholders, directors, officers, employees, agents, representatives, successors and assigns from and against any action, cause, claim, damage, debt, demand or liability, including, without limitation, reasonable costs and attorneys' fees, asserted by any third party, arising directly or indirectly out of or relating to: (i) a breach or alleged breach of any representation, warranty, covenant or agreement in these Terms by Client; (ii) the Site, or Client's use of the Site, the Services or the CR Software; and (iii) any unacceptable use of the Site or the Services, including, without limitation, any statement, data or content made, transmitted or republished by Client which is prohibited as unacceptable in Section 9.
14. Force Majeure.
If the performance of any part of these Terms by CR is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, fire, judicial or governmental action, labor dispute, war, insurrection, technical failure, act of God or any other causes beyond the control of CR, including, without limitation, any actions or reactions by a search engine, CR shall be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
15.1 Independent Contractors.
The relationship of the parties is and at all times shall remain one of independent contractors. Neither party is in any way a partner, joint venture member, affiliate, agent or representative of the other for any purpose whatsoever, nor has the legal right or authority to make any representation, warranty, promise, guaranty or agreement in the name of or for the account of the other under these Terms, except as otherwise expressly authorized by a party under these Terms.
Except as expressly set forth herein, any notices to be given by Client pursuant to these Terms shall be in writing, signed by Client, and sent by: (i) facsimile transmission; (ii) first class certified mail, postage prepaid; (iii) overnight courier service, charges prepaid; or (iv) email, to the party to be notified, addressed to CR at the following address, or sent by facsimile or by email to the following facsimile number or email address, or such other address, facsimile number or email address as CR may have substituted by notice given to Client as provide below in accordance with this provision. The receipt of such notice shall constitute the giving thereof:
Market Ruler, LLC
P.O. Box 1537
Media, PA 19063
Email: support -at- market ruler -dot- com
Telephone: +1 (866) 622-8636
Any notice to be given to Client pursuant to these Terms may be sent by email to Client's email address as identified in Client's account information or by posting on the Site. The sending of such notice shall constitute the giving of notice thereof.
No rights or obligations under these Terms may be assigned by Client without the prior written consent of CR. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. The parties agree and acknowledge that no third party has or shall have any rights as a third party beneficiary or otherwise arising from or relating to these Terms.
No waiver of any term, provision or condition of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
If any provision of these Terms is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
15.6 Governing Law.
These Terms shall be governed by the laws of the State of Pennsylvania, as they apply to agreements made and solely performed therein, without regard for conflicts of law. All actions, claims or disputes arising hereunder or relating to or arising out of these Terms, the Site or the Services shall be exclusively subject to the jurisdiction of the federal and state courts in the County of Addison, State of Vermont.
15.7 Attorney's Fees.
If any action in law or in equity is necessary to enforce these Terms, the prevailing party will be entitled to reasonable attorneys' fees and costs and expenses in addition to any other relief to which such party may be entitled.
All of Client's representations, warranties and indemnities in these Terms, as well as the terms and provisions of Sections 1.4, 7, 8, 10, 11, 12, 13, 15.5, 15.6, 15.7, 15.8 and 15.10 shall survive expiration or termination of Client's access and use of the Site and the Services.
CR shall have the right, in its sole discretion, at any time and without notice, to add to or modify these Terms, by updating these Terms. Client's access to and use of the Site and the Services after the date such amended terms are updated shall be deemed to constitute acceptance of such amended terms. Client is advised to review these Terms on a regular basis for changes. Continued use of the Site or the Services following any change constitutes Client's acceptance of the change.
15.10 Entire Agreement.
These Terms constitute the complete and exclusive statement of the agreement between the parties with respect to the subject matter herein and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the subject matter herein.