Products and Services
Website Design & Development.
CyberMark will use Technology to create and Host one (1) Website promoting Services during the Agreement Term. Further, Subscriber’s digital marketing strategy shall use at least one (1) call-tracking phone number and/or tracking code as determined by CyberMark, where both are essential for CyberMark’cs delivery of Subscription and if additional numbers are later determined to be necessary to achieve the objectives of Subscriber’s digital marketing strategy additional monthly charges shall apply. For CyberMark to be able to best evaluate the success of the digital marketing strategy, Subscriber directs CyberMark to initially actively record any and all of the inbound phone calls made to a CyberMark managed call-tracking phone number, which Subscriber may opt-out of call recording at anytime through the CyberMark Platform at their discretion. View our CyberMark call tracking terms of service here.
CyberMark will use Technology to create Advertising Campaign(s) for Subscriber if, and when, Advertising Package(s) is/are recited on the Order Form. An Advertising Campaign will begin after Website Launches provided CyberMark is in receipt of the respective Advertising Investment. The first Advertising Investment shall be prorated and due on Launch and then on the first day of each consecutive calendar month thereafter. Advertising Campaign(s) will be managed and use Machine Learning Advertising. Subscriber expressly acknowledges that by having CyberMark manage an Advertising Campaign using at least Advertising Success System Technology or any element thereof, the Subscriber shall never acquire any rights to nor have any direct or indirect access to any proprietary element or aspect of the Technology or the Advertising Campaign as determined by CyberMark. The Advertising Success System is confidential information which Subscriber, or anyone at Subscriber’s indirect or direct direction, shall never attempt to view directly or indirectly, acquire, transfer ownership and/or reverse engineer any element or aspect of the Advertising Success System including, but not limited to, best practices, trade secrets, technology, strategies, techniques, know-how, bid structure, placement, potential customer targeting, logic trees, keyword selection, keyword match type(s), keyword(s), advertising channel budget allocations (if any), and messaging (collectively “Campaign Elements”) and Subscriber further expressly acknowledges CyberMark shall be under no obligation to disclose any Campaign Elements. After receiving feedback from Subscriber, if any, CyberMark shall then have full discretion and authority to manage every aspect of an Advertising Campaign, including, but not limited to, selection of the targeted individual words and/or phrases (“Paid Keywords”), determination of applicable advertising channels (“Selected Advertising Channels”), determination of bids, the creation and management of any and all CyberMark Marketing Pages. In some instances, CyberMark may determine that some potential advertising channels may not be available (“Unavailable Advertising Channels”) until the Advertising Investment is increased to a sufficient monetary value to capitalize on these other available advertising channels based on the competitiveness, geographic target and practice areas. This strategy is essential to the performance of Subscriber’s Advertising Campaign as each channel has a minimum threshold budget that should be maintained. CyberMark shall have full discretion with respect to the allocation of the available Advertising Investment on the Selected Advertising Channels, and CyberMark makes no guarantees as to when or where ads will be displayed. CyberMark, either manually or through Technology, may make adjustments to an Advertising Campaign, including, but not limited to allocating the Advertising Investment spend, shifting and/or reallocating the Advertising Investment spend, advertising channels and/or partners, ad types and positioning at any time as determined by CyberMark in our sole discretion. If, for example, CyberMark determines that the best use of the Advertising Investment should be used on a modified list of advertising channels, potentially including initially unselected available advertising channels or on yet-to-be-developed advertising channels (collectively, “Advertising Campaign Channels”), CyberMark shall have full discretion to do so. Subscriber acknowledges that all statistics provided by CyberMark evidencing any portion of an Advertising Campaign shall be conclusive and binding on Subscriber for all purposes of this Agreement. CyberMark makes no guarantees as to the performance of any Advertising Campaign. Once the allocated Advertising Investment is sufficiently depleted for a calendar month for that given Products and Services, all corresponding Advertising Campaigns will cease until either (i) Subscriber increases the current month’s Advertising Investment; or (ii) next month’s Advertising Investment is funded. Any Advertising Investment increases will take effect upon receipt of the additional funds, where any decrease or pause will take effect once fully processed by the system and/or third-party processes and any decrease may invalidate any estimated goals. CyberMark makes no guarantees with respect to the time it takes to fully utilize the allocated Advertising Investment. Additionally, by electing to have CyberMark manage Subscriber’s Advertising Package, Subscriber expressly authorizes CyberMark to take Its Advertising Tracking & Technology Charge.
If Subscriber procures Professional Services from CyberMark, the specific details of the Professional Services will be described on the Sales Order on a per-project basis. Unless expressly recited, CyberMark does not provide any custom deliverables or services which would qualify as work-made-for-hire. Unless expressly recited, Professional Services are not subject to any acceptance procedure. Professional Services will be performed remotely unless otherwise specified, in which case, Subscriber will be invoiced at cost for pre-approved reasonable travel, hotel, and out-of-pocket expenses properly incurred by CyberMark in connection with the Professional Services.
Retainers – Website and Other
- Scope: CyberMark will provide ongoing website maintenance and support services to the Client as specified in the retainer agreement.
- Project Management: CyberMark will allocate a reasonable amount of time for project management activities, including but not limited to coordinating tasks, communicating with the Client, and managing project timelines.
- Quality Assurance (QA): CyberMark will conduct quality assurance tests on the website to ensure it meets the agreed-upon specifications and functions properly. This may include testing for bugs, errors, and compatibility across different browsers and devices.
- Retainer Fee and Payment Terms
- Retainer Fee: The Client agrees to pay CyberMark a monthly retainer fee as outlined in the retainer agreement.
- Invoicing: CyberMark will issue an invoice to the Client on a monthly basis for the retainer fee. Payment is due within 7 days from the date of the invoice.
- Late Payment: In the event of late payment, CyberMark reserves the right to suspend the Services until payment is received. Late payment may also incur additional charges or interest as specified in the retainer agreement.
- Termination: Either party may terminate the retainer agreement by providing written notice to the other party 30 days prior to the desired termination date. The Client will be responsible for payment for any Services provided up to the termination date.
- Client Responsibilities
- Timely Response: The Client agrees to provide timely responses to requests for information, feedback, and approvals, as necessary for CyberMark to perform the Services effectively.
- Content and Materials: The Client shall provide all necessary content, materials, and assets required for the completion of the Services. It is the Client’s responsibility to ensure that all provided materials do not infringe upon any third-party rights.
- Cooperation: The Client agrees to cooperate with CyberMark, providing all necessary access, permissions, and credentials to facilitate the provision of the Services.
- Limitations of Liability
- Warranty: CyberMark will make reasonable efforts to provide the Services in a professional and timely manner. However, the Agency does not warrant that the Services will be error-free or uninterrupted.
- Indirect Damages: CyberMark shall not be liable to the Client or any third party for any indirect, incidental, or consequential damages arising from the use of the Services, including but not limited to lost profits, loss of data, or business interruption.
- Total Liability: The total liability of CyberMark, regardless of the cause of action, shall be limited to the total amount paid by the Client for the Services during the three (3) months preceding the claim.
- Confidential Information: Both parties agree to keep confidential any proprietary or sensitive information disclosed during the provision of the Services.
- Exceptions: Confidentiality obligations shall not apply to information that (a) was already known to the receiving party, (b) is or becomes publicly available without breach of this Agreement, or (c) is rightfully obtained from a third party without any obligation of confidentiality.
- Scope: CyberMark will provide ongoing website maintenance and support services to the Client as specified in the retainer agreement.
Capitalized terms used in this Agreement have the meaning set forth herein or as set forth below:
- “Account Manager” means a designated CyberMark account manager who will be Subscriber’s singular point of contact during your Term.
- “Activation Fee” means the recited non-refundable consideration due by Subscriber at the time You sign this Agreement to activate Your Subscription.
- “Admin User” means any User for whom Subscriber is not using the Products and Services except to administer the account.
- “Advertising Campaign” means a paid advertising campaign created by CyberMark using Technology on applicable advertising channels based on Subscriber’s Advertising Investment and Subscriber’s active Subscriptions.
- “Advertising Investment” means the monthly monetary investment paid in advance by Subscriber to fund any respective Subscription’s Advertising Campaign which shall be provided to CyberMark in advance of any Advertising Campaign being active, where CyberMark shall utilize the payment method in Subscriber’s account for all Advertising Investment(s).
- “Advertising Tier” means a CyberMark proprietary advertising tier selected by You which consists of at least one (1) paid digital marketing campaign utilizing CyberMark’s Paid Advertising Platform to market You which will be managed as determined by CyberMark and/or Our Technology.
- “Advertising Tracking & Technology Charge” means the twenty percent (20%) charge from each Advertising Subscription paid to CyberMark to at least Manage Subscriber’s Advertising Tier.
- “Authorized User(s)” means any Subscriber authorized User who is using the Products and Services.
- “Claim” means a claim, demand, action, or legal proceeding filed against a Party.
- “Confidential Information” means non-public or proprietary information about the disclosing Party’s business (including copies, summaries, and extracts) which is: (i) disclosed in tangible form and is identified in writing as confidential at the time of disclosure; (ii) disclosed in non-tangible form that is unambiguously identified as confidential at the time of disclosure; or (iii) disclosed in such a manner, or of such a nature, that a reasonable person under the same circumstances would clearly understand the information to be confidential. Confidential Information does not include information that: (i) is or becomes generally publicly available through no fault of the receiving Party; (ii) was known to the receiving Party, free of any confidentiality obligations, before its disclosure by the disclosing Party; (iii) becomes known to the receiving Party, free of any confidentiality obligations, from a source other than the disclosing Party; or (iv) is independently developed by the receiving Party without use of or reference to the Confidential Information, as demonstrated by documents and other competent evidence in the receiving Party’s possession.
- “Customize” means CyberMark’s reasonably commercial efforts to have the respective asset closely resemble the look and feel of Subscriber’s logo and/or brand guidelines, if any, as determined by CyberMark.
- “Graphic Design” means the Subscriber approved graphical design utilizing up to ten (10) Professional Stock Photography images which may comprise a mockup of at least Website’s home page and up to five (5) Customized interior page Website Structural Layout(s) for a desktop, tablet and/or mobile device.
- “Host”, “Hosting” or “Hosted” means the Website created under this Agreement hosted on CyberMark’s servers which allows visitors to access it via the internet.
- “Launch” means the date Website is first publicly accessible online after CyberMark’s receipt of Subscriber’s approval thereof.
- “Location” means Subscriber’s physical business address(es).
- “Party” means either CyberMark or Subscriber, and are together referred to as the “Parties”.
- “Permitted Third Party” means an individual or entity under contract with Subscriber who needs to access the Products and Services as part of its relationship with Subscriber and who is not CyberMark’s competitor.
- “Personal Data” means any information relating to an identified or identifiable natural person (i.e., a person who can be identified, directly or indirectly, by reference to an identifier or to one or more factors specific to such person’s physical, physiological, genetic, mental, economic, cultural, or social identity).
- “Products and Services” means the recited products and services set out in the Sales Order that Subscriber will receive the benefits of during its respective term.
- “Professional Services” means any consulting, training, implementation, or technical services provided by CyberMark to Subscriber, as set out in the Sales Order.
- “Professional Stock Photography” means images from designated CyberMark licensed affiliates and categories that CyberMark will use to only Customize Graphic Design, where Subscriber is solely responsible for acquiring appropriate licenses for any and all other page specific images, layout images and/or content area images.
- “Sales Order” means the sales order form, statement of work, or other written document detailing the Products and Services being procured by Subscriber, and which references this Agreement.
- “CyberMark” means CyberMark, LLC, a Phoenix limited liability corporation with its principal office in Phoenix.
- “CyberMark Marketing Pages” means any proprietary landing page and associated content, technology, design, structure, functionality, systems and any and all associated elements used by CyberMark including, but not limited to, creating, delivering, maintaining, updating and/or analyzing any paid media campaigns under this Agreement.
- “CyberMark Platform Cost” means the recurring monthly subscription cost for the CyberMark Platform.
- “CyberMark Website Content” means the most recently saved version of all static content and imagery on Website, expressly excluding any Technology and as otherwise determined by CyberMark.
- “Services” means the recited classification of services that Subscriber provides to end-users.
- “Subscriber” means the entity identified on the Sales Order who has duly executed this Agreement.
- “Subscriber Data” means all files, content (including audio, video, text, or images), and data (including Personal Data) belonging to or controlled by the Subscriber which is uploaded into, or accessed by the Products and Services, or otherwise provided to CyberMark for processing.
- “Subscription” means all of Subscriber’s active subscriptions of applicable CyberMark offered Products and Services which may use Technology, including, but not limited to, the CyberMark Platform as recited under this Agreement, Sales Orders and/or amendments thereto.
- “Subscription Term” means the aggregate duration of all Subscriptions for Products and Services, as stated in all Sales Orders, and modified by any applicable extension or early termination.
- “Taxes” means any local, state, provincial, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from the Agreement.
- “Technology” means CyberMark’s proprietary software and/or technology, methodology, techniques, strategies and implementation related to and including, but not limited to, all created or to be created utilities, tools, programs and computer code provided or developed by CyberMark or third party licensors under this Agreement that are used to facilitate creation, maintenance, delivery, analysis, storage or transmission of the Subscriptions, CyberMark’s Logos, databases, trade secrets, trademarks, patents, purchased and/or owned domain names, call tracking telephone numbers, any and all elements of the conversion center and chat functionality, CyberMark Platform, Platform, Platform Apps, CyberMark Marketing Pages, CyberMark Advertising Success System and CyberMark’s proprietary content management system platform (“CMS”) and as otherwise determined by CyberMark.
- “Term” means the current Subscription term.
- “Third-Party Product(s)” means any product, platform, or service not developed by CyberMark which enhances, manipulates, integrates with, interacts with, interoperates with, or adds functionality to the Products and Services or Subscriber Data. Third-Party Products may include public APIs, stand-alone software, or hardware. Third-Party Products may be obtained directly from the developer or through a reseller. CyberMark may act as a reseller for some Third-Party Products.
- “Total Monthly Investment” means the monetary sum paid in advance by Subscriber to CyberMark for all Products and Services for the upcoming month.
- “User” means (i) Subscriber; (ii) authorized employee of Subscriber; or (iii) authorized third-party of Subscriber.
- “Website” means a Hosted responsive website utilizing a Website Structural Layout with linked web pages, in the English language only, under common control, developed, Customized and/or managed by CyberMark for Subscriber during the Term, which shall only have textual navigation, utilize Graphic Design, and Launch with necessary CyberMark Content where Subscriber may purchase additional content to facilitate Launch; and for the avoidance of doubt, a subdomain or any other domain shall be a considered a separate website.
- “Website Structural Layout” means pre-created layout elements which CyberMark will Customize for Subscriber to swap out logos, images, text, and colors; wherein the given structure and functional capabilities which further specifies the size and location of all website elements, graphics, navigation, textual (not graphical) navigation, and all other structural design elements will remain as-is without the possibility of modification.
Subscriber Responsibilities & Obligations
Subscriber has elected to start a Subscription which may require Subscriber’s involvement, scheduling, feedback and/or approval, where each of which is necessary for CyberMark to deliver such Subscription in a timely manner. Subscriber shall use best efforts to deliver, schedule and/or provide any asset requested by CyberMark in a commercially reasonable manner and without undue delay to allow CyberMark to timely deliver the Subscription.
Warranties, Disclaimers, and Remedies
Products and Services.
CyberMark warrants that the Products and Services as delivered to Subscriber will materially conform to the specifications set forth in the Agreement. CyberMark further warrants that CyberMark will perform Professional Services in a professional and workmanlike manner. Subscriber must notify CyberMark of a claim under this warranty within thirty (30) days of the date on which the condition giving rise to the claim first appears.
To the maximum extent permitted by law and except for the express warranties in this section, CyberMark provides the Products and Services on an “as-is” basis. CyberMark disclaims and makes no other representation or warranty of any kind, express, implied, or statutory (including claims about merchantability, title, non-infringement, accuracy, omissions, completeness, currentness, delays or fitness for a particular purpose). Subscriber acknowledges that certain software used by internet users may not be capable of supporting certain features or functionality which may be included in Subscription. Subscriber expressly acknowledges CyberMark shall have no liability whatsoever for any claim(s) relating to any internet user’s inability to access the Subscription, including, but not limited to Website, properly or completely or for any claim relating to any errors or omissions in the Subscription regardless of whether the claim is based on any policy, procedure, law, statute or otherwise. Neither CyberMark nor its affiliates or agents make any warranty as to the results that may be obtained from the Subscriptions, that access to the Subscriptions will be uninterrupted, or that the subscriptions will be error-free.
To the extent permitted by law, Subscriber’s sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to replacement of the non-conforming Products and Services or re-performance of the Professional Service, as applicable. If in CyberMark’s sole discretion replacement or re-performance is not commercially reasonable, CyberMark may terminate the applicable portion of the Sales Order and provide a refund of any prepaid unused fees for the applicable Product and Services.
Term; Subscription Cost; Termination of This Agreement
Delinquent Activation Fee.
CyberMark shall not activate Subscriptions unless and until CyberMark receives the recited Activation Fee which is due on Effective Date unless otherwise waived. Notwithstanding anything contained herein to the contrary, CyberMark may immediately terminate this Agreement if the Activation Fee is not received by CyberMark within ten (10) days of Effective Date.
This Agreement shall become effective and binding as of Effective Date of the first Sales Order. The Subscription Term shall begin on Effective Date (“Subscription Start Date”). If not canceled by either Party pursuant to the terms herein, the CyberMark Systems subscription term shall automatically renew on a 12-month basis (“Renewal Platform Term”). All other non-CyberMark Platform subscriptions, unless otherwise expressly recited, shall have an initial 1-month term and if not cancelled shall automatically renew on a month-to-month basis thereafter.
- Initial Term. The initial term of the Services purchased by you will be for the time period set forth in the registration form presented to you when you order the Services (the “Initial Term”).
- Automatic Renewal. Unless you cancel the Services or disable the automatic renewal option, following the expiration of the Initial Term the Services will automatically renew for successive periods of equal length as the Initial Term (each a “Renewal Term”). The Initial Term and any Renewal Terms shall be collectively referred to as the “Term.” For Services with Term lengths of three (3) months or longer, CyberMark shall provide notice of the upcoming charge for each renewal to Subscriber no later than thirty (30) days prior to the payment date for each Renewal Term. The payment date for Services with Term lengths of three (3) month or longer shall be fifteen (15) days prior to the end of the then current Term. For accounts with a Term of one (1) month, the payment date will occur twenty-four (24) hours prior to the expiration of Subscriber’s Services without any prior notice.
- If you do not want the Services to automatically renew, you must opt out of the automatic renewal option at least sixteen (30) calendar days before the end of your then current Term or else your payment method on file will be charged as described above.
Subscriber agrees to pay CyberMark the recited Total Monthly Investment in US$ currency outlined in the order form in advance of CyberMark’s delivery of the recited Products and Services. The first Subscription Cost shall be due on the Subscription Start Date and then on that same calendar date for each subsequent month thereafter. All invoices will only be delivered electronically using the billing and contact information provided by Subscriber. If Subscriber believes that CyberMark has billed Subscriber incorrectly, Subscriber must contact CyberMark in writing within thirty (30) days of the invoice date, specifying the error. Subscriber is not entitled to offset or deduct any amounts from CyberMark’s invoice unless: (i) Subscriber has properly notified CyberMark of the dispute; (ii) the dispute is made in good faith; and (iii) CyberMark has approved a payment limited to the undisputed amounts. If Subscriber fails to pay any amount due under the Agreement within fifteen (15) days of the due date, CyberMark may suspend or restrict the Products and Services. CyberMark may charge interest at a monthly rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law on any overdue fees.
Termination of Subscriptions.
The Agreement shall remain in effect until all Subscriptions are terminated or canceled as set forth herein. This Agreement may be terminated by providing written notice to the other Party at least thirty (30) days before the end of the respective Platform Term. Notwithstanding the foregoing, either Party will have the right to terminate this Agreement immediately if (a) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (b) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
CyberMark may immediately terminate the Agreement and/or pursue all other available remedies, including recovery from Subscriber of CyberMarks’ costs and attorneys’ fees incurred in pursuing such remedies (collectively “Termination Remedies”) if (i) a Subscription is made impracticable or is delayed for at least thirty (30) days as a result of Subscriber’s failure to (i) provide Subscriber Data; (ii) provide necessary Subscriber assets or feedback; or (iii) to redirect a domain name or provide domain register’s login credentials (each “Termination for Cause”).
Obligations Upon Termination.
Upon termination of this Agreement, CyberMark irrevocably revokes Subscriptions, and Subscriber shall immediately cease and desist from using Subscriptions, Technology and any other intellectual property of CyberMark or a third party licensor unless expressly authorized herein. Further, Subscriber shall immediately pay all due and outstanding Total Monthly Investment(s). Notwithstanding the above, if Subscriber has satisfied the terms of the Ownership section recited herein, Subscriber may have acquired additional rights to the Launched Graphical Design and CyberMark Website Content.
Dispute Resolution; Arbitration
Notice of Dispute.
Subscriber must notify CyberMark of a dispute within thirty (30) days of the date on which the condition giving rise to the claim first appears. Subscriber shall give (i) written notice to CyberMark setting forth all applicable and reasonable available details and/or proof, including, but not limited to, screenshots, emails, calculations and/or basis used to allege the dispute; and (ii) a proposed solution and/or compromise (“Dispute Documentation”). The Parties will first try to settle any dispute(s) between them amicably in good-faith negotiations within thirty (30) days of receipt of the Dispute Documentation (“Notice Period”). If after the Notice Period the dispute has not been resolved to the satisfaction of the Parties, either Party may initiate arbitration procedures as set forth below:
Choice of Law.
The Agreement and this Arbitration Agreement are governed by and construed under the laws of the state of Arizona, without regard to any conflict of law rules or principles. This choice of law provision is only intended to specify the use of Arizona law to interpret this Agreement and is not intended to create any other substantive right to non-Arizonians to assert claims under Arizona law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions of this Agreement. In that event, the Parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
Class Action Waiver.
To the fullest extent permitted by law, Subscriber and CyberMark agree to waive any and all statutory or common law right permitting or authorizing class or collective action through arbitration or otherwise. All claims, whether in arbitration or otherwise, must be asserted in individual/corporate capacity, and not as plaintiff or class member in any purported class or collection proceeding. SUBJECT TO THE ABOVE PROVISO, THE PARTIES WAIVE ANY RIGHT THEY MAY HAVE TO PURSUE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION PERTAINING TO ANY ARBITRABLE CLAIMS BETWEEN SUBSCRIBER AND CYBERMARK.
Location of Arbitration.
Unless Subscriber and CyberMark agree otherwise, any arbitration hearing between the Parties shall take place in Phoenix, AZ.
Arbitration Fees and Awards.
The arbitrator’s fees and costs of the arbitration will be borne by the Parties equally unless the arbitrator in his discretion makes a different provision in the final award. Except as provided by state or federal law, each party shall pay its own attorneys’ fees and pay any costs incurred in the litigation of claims such as costs to subpoena witnesses or take depositions. At the conclusion of the arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law.
License Grant and Reservation of Rights.
Subject to ongoing compliance with the Agreement, CyberMark grants Subscriber a non-exclusive and non-transferable license during the Subscription Term to permit Users to access, implement and use the Products and Services solely for Subscriber’s direct beneficial business purposes. Subscriber’s rights to use the Products and Services are limited to those expressly set forth in the Agreement for any active Subscription, including limitations based on license type set forth therein. CyberMark retains all rights, titles, and interests in and to the Products and Services and all related intellectual property rights, including without limitation any modifications, updates, customizations, apps, or other add-ons unless otherwise expressly recited in the Agreement. Subscriber grants CyberMark a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, adapt, modify, make improvements to, store, archive, distribute, transmit, communicate, publicly display, and publish Subscriber Data, in whole or in part, as part of the Subscriptions list, represent, register or establish accounts or Keywords in connection with providing the Subscriptions. Subscriber further agrees that CyberMark may display aspects of Subscriptions, including, but not limited to Website, in a design portfolio, in advertising and promotional materials, and for submission to third parties for special recognition, honors, or awards.
Restrictions and Acceptable Use.
Except as explicitly permitted under the Agreement, Subscriber must not do any of the following with the Products and Services: (i) use in violation of any applicable law or regulation; (ii) use in a manner that would cause a material risk to the security or operations of CyberMark or any of its other Subscribers; (iii) disassemble, decompile, or reverse engineer; (iv) redistribute, republish, sell, rent, lease, host, sub-license, or permit usage on a time-sharing basis as part of a hosted service or on behalf of any third party; (v) remove, obscure, or alter any proprietary notices; or (vi) circumvent, disable, or stress test any security or other technological features.
Subscriber acknowledges search results, search engine rankings, and advertising results are influenced by several factors, and CyberMark does not make any promise or guarantee with respect to any position, placement, rank of Website or ad in any search engine or advertising network channel, and CyberMark has made no guarantees, representations or warranties to Subscriber with respect to the results or performance of the Subscriptions, including, but not limited to, the quality or volume of Internet traffic, business or revenue the Subscriptions will generate. CyberMark may use aggregate data across all Subscriber’s to provide audience insights which may be used for general advertising and potential consumer profiling. Further, Subscriber expressly acknowledges You are not relying on anything (whether written or oral) outside the terms of this written agreement.
Relationship of Parties.
CyberMark and Subscriber are independent contractors. Neither Party is an agent, representative or partner of the other Party. Notwithstanding the foregoing, Subscriber expressly authorizes CyberMark to enter into any agreements necessary to provide Subscriptions on Subscriber’s behalf. This Agreement does not, and is not intended to, confer any rights or remedies upon any person other than Subscriber and CyberMark. Subscriber acknowledges that CyberMark provides Subscriptions to other businesses throughout the world, and Subscriber agrees that nothing herein grants Subscriber an exclusive right to receive Subscriptions from CyberMark. Subscriber agrees that CyberMark may provide Subscriptions to any and all other businesses and such provision of these Subscriptions does not give rise to a conflict of interest. This Agreement is also not intended to benefit, nor shall it be deemed to give rise to, any rights in any third-party. This Agreement and the performance of any duties hereunder may not be assigned, transferred, delegated, sold or otherwise disposed of in whole or in part by a Party other than with the prior written consent of the other Party. This Agreement will be binding upon and shall inure to the benefit of a Party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section is null and void.
Integration And Severability.
This Agreement is governed by the laws of the State of Arizona, excluding its conflict of laws principles and constitutes the entire understanding and agreement between the Parties, oral or written, with respect to the subject matter of this Agreement and supersedes any and all prior or contemporaneous representations, understandings and agreements related thereto, all of which are merged in this Agreement. If any provision of these terms or incorporated documents is found by the arbitrator or a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the arbitrator or court should endeavor to give effect to the Parties’ intentions as reflected in the respective provision(s), and the other provisions of these terms remain in full force and effect. Except for claims by CyberMark relating to Subscription Cost owed by the Subscriber, no claim, regardless of form or any statute or law to the contrary, which in any way arises out of this Agreement, may be made, nor action based upon such claim brought by either Party more than one (1) year after the Agreement terminates.
Subscriber shall pay CyberMark all amounts due under the Agreement in full on the recited due date(s), and Subscriber hereby irrevocably authorizes CyberMark to charge Subscriber’s provided credit card for any such amounts when due during the Term, and Subscriber agrees to inform CyberMark in writing if the nominated credit card account is canceled, substituted, renewed lost or stolen. Amounts due will be automatically charged, in advance, and are not refundable. CyberMark shall be under no obligation to perform any Subscriptions if the Subscriber is delinquent on any Subscription Cost on any CyberMark agreement. If CyberMark suspends any Subscriptions due to non-payment by Subscriber, Subscriber agrees that it owes all amounts that would be due for the remaining months of the Term of the suspended Subscriptions as if such Subscriptions had not been suspended. If CyberMark does not receive timely payment of any amount due under the Agreement, or in the event that the client’s credit card declines, client agrees to promptly provide a new credit card to maintain on file. All past due charges will be billed immediately to the new credit card or the existing card if it becomes operable again. Subscriber agrees to pay all amounts due pursuant to the Agreement upon demand and will reimburse CyberMark for all charges and fees CyberMark incurs in collecting the delinquent Subscription Cost(s), where Subscriber may be charged up to the maximum legal interest rate on any past due balance(s) where such interest is considered liquidated damages and is not a penalty.
CyberMark will not release FTP, C-Panel, or admin access for websites until any outstanding invoices are paid in full. NO EXCEPTIONS. In the event Client fails to make any payment required hereunder or defaults in its obligations under the terms of this agreement in any way, CyberMark shall be authorized to cause any website, website page, or advertising for which it has created, modified, revised or provided any services whatsoever to cease functioning. Client shall thereafter be responsible for payment of all amounts due under this agreement as well as all additional costs incurred to restart any such website or web page.
Client’s cancellation of orders for marketing services or other subscription-based services must be received by CyberMark in writing, (including by email) a 30 day notice prior to canceling. No refunds are provided, and ALL SALES ARE FINAL
Client shall not have any authority to make any promotional or merchandising reference to CyberMark, or any public announcement of any kind which references CyberMark International Inc., including, without limitation, press releases or company statements by Client in any medium or manner, except with the express prior written permission of CyberMark in each instance.
As a preferred vendor, CyberMark will be exempt from all convention fees. CyberMark will agree to attend conventions and participate as you see fit. CyberMark will be responsible for our own costs associated with travel/accommodations.
The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation. The word “excluding” shall mean excluding without limitation.
Subscriber agrees to indemnify, defend and hold harmless CyberMark, its successors, officers, directors, employees, designees and agents (the “Indemnified Parties”) from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) (“Claims”) relating to or arising from the Subscriber Data, Subscriber’s use of the Subscriptions, or breach (or alleged breach) of Subscriber’s representations, warranties and covenants under the Agreement. CyberMark agrees to indemnify, defend and hold harmless Subscriber from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from the CyberMark Website Content or Technology. The indemnification obligations under this article are subject to the indemnified Party: (i) promptly giving written notice of the Claim to the indemnifying Party; (ii) giving the indemnifying party sole control of the defense, negotiation, and settlement of the indemnified portion of the Claim; and (iii) providing the indemnifying Party with all reasonable assistance required to effectively defend the Claim. Neither Party will have any indemnification obligation or liability regarding a third-party data security and privacy Claim when acts or omissions of the indemnified Party impede or prevent the indemnifying Party’s ability to meet its data security and privacy obligations under the Agreement.
Neither Party will be liable for, or be considered to be in breach of, the Agreement on account of any delay or failure to perform as required by the Agreement as a result of any unforeseeable or exceptional situation beyond its reasonable control, so long as the non-performing Party: (i) did not cause such situation by its own negligent acts or omissions and (ii) exercised all due diligence and used commercially reasonable efforts to avoid such situation and mitigate the impact.
The Parties agree that, as between the Parties (i) the Technology and any improvements thereto whether or not created under this Agreement (“CyberMark Proprietary Data”) are the exclusive property of CyberMark, and Subscriber shall not and will not acquire any ownership interest by reason of this Agreement nor make any efforts to acquire any CyberMark Proprietary Data; and (ii) Subscriber Data is the exclusive property of Subscriber. For the avoidance of doubt, Subscriber shall never acquire any rights, title, viewing rights or ownership to any aspect of any Machine Learning Advertising and/or SAM. During the Term and thereafter, neither Party will use, disclose or provide to any third party the other party’s confidential information and/or property, except as expressly provided in this Agreement or as necessary for the Parties to perform their obligations or exercise or enforce their rights hereunder. Subscriber may acquire all rights, title and ownership to Website’s static files (e.g., .html, .jpg, and .gif files) reflecting the state of the Website when the files were last saved (“Website Files”) once Subscriber tenders twenty-four (24) complete (non pro-rata) Subscription Cost payments since the Launch of that Website Graphic Design design (collectively “Ownership Condition Date”). If Subscriber has failed to satisfy the Ownership Condition Date, Subscriber may elect to purchase the Website Files for a one-time fee of $10,000.00 or have their prior vendor relaunch their pre-existing website (“Website Purchase Date”). After Ownership Condition Date or Website Purchase Date, Subscriber may request CyberMark to provide an electronic copy of the Website Files no more than twice per annum. The Website Files shall NOT include working files (e.g., Photoshop, Website Structural Layouts, etc.), Technology, or search engine optimization beyond embedded keywords in the CyberMark Website Content. Modification by Subscriber may be required for the Website Files to function in a similar manner on a third party’s platform to that of CyberMark’s. This third-party shall be solely responsible, and Subscriber shall not hold CyberMark liable for any aspect of the Website Files including, but not limited to: redirects, hosting Website Files on a non-CyberMark server, and implementing a satisfactory transition of the Website Files. Notwithstanding anything to the contrary herein, CyberMark may reject Subscriber’s request if Subscriber has failed to satisfy the terms of this Agreement or is otherwise in default on any Subscription Cost and/or account.
Counterparts; Facsimiles; Electronic Record.
This Agreement may be executed in any number of textually identical counterparts, each of which when so executed and delivered will be deemed an original, and such textually identical counterparts together will constitute one and the same instrument. Each Party will receive a duplicate original of the counterpart copy or copies executed by it. For purposes hereof, a facsimile or an electronic record or copy of this Agreement, including the signature pages hereto, will be deemed to be an original. Notwithstanding the foregoing, the Parties will each deliver original execution copies of this Agreement to one another as soon as practicable following execution thereof.
Notices of Dispute or Termination.
Except as specifically provided in this Agreement, all notices, demands or other communications of Dispute or Termination required or permitted hereunder shall be in writing and shall be given as follows:
- If by You: electronic mail (notice deemed effective on date of transmission) to email address (email@example.com and firstname.lastname@example.org); and
- If by CyberMark: by electronic mail (notice deemed effective on date of transmission) to the email address listed in Subscriber’s account.
Website Credits and Links.
CyberMark may place a CyberMark.com Logo and/or text with hyperlink to cybermark.com in the footer of Website as CyberMark determines.
Pre-Existing Conflicting CyberMark Agreements.
If any portion of this Agreement directly conflicts with other pre-existing CyberMark agreements or any CyberMark partnership agreements which prevents CyberMark from providing Subscriber with Subscriptions, CyberMark shall notify Subscriber that a conflict exists and return all payments (“Return Payment”) to Subscriber within a reasonable time of such discovery. Once Subscriber has received such notification and Return Payment, the Parties shall mutually cancel this Agreement wherein the Parties shall each expressly waive any and all claims, or causes of action against the other Party and release and hold them harmless from any and all claims or causes of action they may have under this Agreement. Further, the Parties further agree not to bring or cause to be brought any suit or any such claim or cause of action and acknowledges that the releases and waivers referred to herein shall apply regardless of whether liability is asserted on the basis of contract, strict liability or ordinary or gross negligence.
The receiving Party will only use Confidential Information for the purposes of the Agreement and will not reproduce, disseminate, or disclose Confidential Information to any person, except to its employees and authorized representatives (e.g. temporary employees, consultants, and contractors) who need to know the Confidential Information for the purposes of the Agreement and are bound by confidentiality obligations at least as restrictive as those in this section. The receiving Party will treat Confidential Information with the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. No Party may disclose the terms of this Agreement (including, for purposes of clarification, the pricing terms) to a third-party without prior written consent of the other Party.
Non-CyberMark Computer Programs/Software.
CyberMark has sole discretion in determining what software to install and update on CyberMark’s servers. Any Services which conflict with this section shall be null and void as of Effective Date. Client further expressly authorizes CyberMark to not provide these null and void Services, where such non-performance is not a breach of this Agreement.
CyberMark reserves the right to refuse, modify, substitute or remove any Subscriber Content, information or other materials that may (i) be deemed to violate the privacy, personal, proprietary, or contractual rights of third parties; (ii) be contrary to CyberMark’s practices; or (iii) defame, expose to legal liability, or otherwise harm CyberMark (collectively “Disallowed Content”).
Recorded Call Terms and Conditions.
CyberMark’s recorded call terms and conditions are hereby incorporated by reference as last updated at https://www.cybermark.com/recorded-call-terms-and-conditions.
Requests Beyond Scope of Agreement.
If Subscriber ever asks for any additional services beyond the scope of this Agreement as CyberMark determines, CyberMark will provide Subscriber with an estimate which Subscriber must authorize in writing and make any recited payments before CyberMark will begin providing such additional work and/or Subscription.
CyberMark shall have sole discretion in the manner of producing and delivery of Subscriptions to Subscriber including directly or indirectly answering phone calls and/or communicating with Subscriber’s end-users at Subscriber’s direction if that is a subscribed to Subscription.
The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
This Agreement will become effective when both Parties have signed it (“Effective Date”). The date this Agreement is signed by the second Party to sign it (as indicated by the date associated with that Party’s signature) will be deemed the date of this Agreement. If a Party signs but fails to date a signature, the date that the other Party receives the signing Party’s signature will be deemed to be the date that the signing Party signed this Agreement.
Should any provision of this Agreement be held void, invalid, unenforceable, or illegal by a court of law, the remaining provisions will remain valid and enforceable. Any of the provisions of this Agreement may be waived by the Party entitled to the benefit thereof. No Party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by an authorized agent of the waiving Party (which shall only be CyberMark’s legal department in the case of CyberMark), and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to, or waiver of, any right or remedy as to a subsequent event. Any provisions of this Agreement which impose an obligation or right after the termination or expiration date shall survive the termination or expiration of this Agreement and shall be binding on the Parties, and Subscriber expressly waives any statutory or other legal protection in conflict with these provisions. The termination or expiration of the Agreement will not affect any provisions of the Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, payment obligations, confidentiality, term and termination, effect of termination, intellectual property, license compliance, limitation of liability, privacy, content monitoring, and the Miscellaneous section in this Agreement.
Subscriber expressly agrees that for the Term and for thirty-six (36) months thereafter (“Solicit Term”), Subscriber will not directly or indirectly solicit for employment, retain, employ, work with, enter into a contract or working relationship (either personally and/or with or through a third-party business) any CyberMark employee who was employed at any time during the Term (“Subscriber Solicit”). CyberMark expressly agrees that for the Solicit Term, CyberMark will not solicit for employment, retain, or employ (directly or through another source) (“CyberMark Solicit”) any employee of Subscriber who was employed at any time during the Term.
Certain Subscriptions may be added, modified, removed, upgraded or downgraded (“Subscription Modification”) at your discretion through the Client Success Platform. Upon such Subscription Modification, you authorize us to charge the new prorated amount for the current Term and to charge the new total Subscription Cost for all combined Subscriptions thereafter to the respective payment method on file for your associated account. Please note that downgrading your plan may cause the loss of data, information, features or other functionality that is associated with your account in addition to a recalibration of your estimated future growth metrics. You bear all risk from downgrading any service and release CyberMark from all liability and consequences related thereto. In some cases CyberMark may add, modify, deprecate, diminish or remove certain features and functionality, but such changes will not have a materially adverse impact on Subscriber’s use of the Products and Services. Under these circumstances, Subscriber’s only remedy shall be to provide notice of termination of that respective Subscription within thirty (30) days of notice of change.
From time-to-time CyberMark may offer features or services that may be subject to additional or different terms and fees. Subscriber may not use these additional features and services unless You agree to the applicable terms. CyberMark may also provide access to subscriptions, features or services that are identified as beta or pre-release. Subscriber understands that such services are still in development, may have bugs or errors, may have incomplete features, may materially change prior to a full commercial launch, or may never be released commercially. Despite any other provision of this Agreement, any use of or reliance on beta or pre-release subscriptions, features or services is done at Subscriber’s own risk and is provided as-is and without warranty of any kind, and the CyberMark indemnity Section herein does not extend to such beta or pre-release features or services.
Any and all promotions delaying the initial Subscription Cost will be calculated as the recited number of days from the Effective Date. For such a promotion, the Initial Commitment shall begin on the Subscription Start Date. For any and all promotions offering Advertising Subscription credits, such credits will be added to Subscriber’s Advertising Subscription in the month Subscriber matches the respective Advertising Subscription credit.
Access to the Products and Services is limited to Users. User accounts may be reassigned by the Subscriber, but accounts must not be shared among multiple individuals. Subscriber agrees to: (i) supervise and monitor Users’ use of the Products and Services; (ii) promptly report to CyberMark any violation of the Agreement by its Users; (iii) immediately disable access for anyone violating the Agreement on the Subscriber’s account; and (iv) ensure that no false or misleading personal information is used to create User accounts.
Feedback and Usage Analytics.
Subscriber may provide feedback to CyberMark about the Products and Services (e.g. technical support input, suggestions, or enhancement requests) and generate usage analytics (e.g. non-identifiable technical data and metadata from usage of the Products and Services). CyberMark may use Subscriber’s feedback and anonymous usage analytics to: (i) compile statistical and performance information related to the Products and Services; (ii) improve the Products and Services; and (iii) develop and publish benchmarks and similar informational reports.
Technical Support Services.
Access to email or in-app technical support is provided to Subscriber during normal business hours on weekdays (8AM-5PM MST Time) excluding nationally recognized holidays and/or CyberMark observed non-workdays.
The fees stated in a Sales Order do not include Taxes. Subscriber is responsible for paying all applicable Taxes. If CyberMark determines that CyberMark has a legal obligation to pay or collect Taxes, CyberMark will add such Taxes to the applicable invoice and Subscriber will be obligated to pay such Taxes, unless Subscriber provides CyberMark with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues CyberMark for unpaid Taxes for which Subscriber is responsible under the Agreement and which Subscriber did not pay to CyberMark, CyberMark may invoice Subscriber, and Subscriber will be obligated to pay such Taxes to CyberMark or directly to the taxing authority, plus all applicable interest, penalties, and fees.
Where relevant, a reference in the Agreement to Subscriber should be construed as equally including a reference to Subscriber’s affiliates and Users. Similarly, a reference in the Agreement to CyberMark should be construed as equally including a reference to CyberMark’s affiliates. Any obligation in the Agreement not to do something includes an obligation not to support or allow that thing to be done.
CyberMark will establish and maintain appropriate administrative, technical, and physical safeguards and controls to: (i) ensure the ongoing confidentiality, integrity, availability, and resilience of the Products and Services and Subscriber Data; (ii) restore the availability and access to Subscriber Data in a timely manner in the event of a physical or technical incident; and (iii) have in place a process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing through the Products and Services.
CyberMark will comply with applicable privacy and data protection laws governing its processing and storage of Personal Data in connection with its role as described in the Agreement.
Independent Allocations of Risk.
Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of the Agreement between the Parties. This allocation is reflected in the pricing offered by CyberMark to Subscriber and is an essential element of the basis of the bargain between the Parties.
No Third Party Beneficiaries.
There are no third-party beneficiaries to the Agreement, including, without limitation, permitted Third Parties or Users.
Google Maps may be presented to Subscriber through the Products and Services and is powered by Google. Subscriber’s use of Google Maps is subject to the Google Maps Terms of Service, available online at https://www.google.com/intl/en-US_US/help/terms_maps.html, and https://www.google.com/intl/ALL/policies/privacy/index.html, and by using the respective Products and Services, Subscriber agrees to be bound by such terms.
The Agreement contains the entire understanding of the Parties relating to the subject matter and supersedes all earlier agreements, understandings, proposals, discussions, negotiations, representations, and warranties, both written and oral, regarding the subject matter.