Terms of Service
Welcome to Markprompt!
Last Updated: June 22, 2023.
Welcome to the Markprompt (“We”) website markprompt.com (the “Site”). Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Site and any other websites that we may later own or operate; mobile and desktop applications , application program interface(s) (“API(s)”) and our developer tool services and other products and services we may later own or operate (collectively called the “Services”).
1. Agreement to these Terms
By signing in or otherwise accessing or using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN KINDS OF DISPUTERS DESCRIBED IN SECTION 16 AND UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED THEREIN, YOU AGREE THAT DISPUTES BETWEEN YOU AND MARKPROMPT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
2. Changes to the Terms or Services
We may modify these Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. If you continue to use the Services, you are indicating that you agree to the modified Terms. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 2 these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. We may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion. Markprompt will have no liability for any change to the Service.
3. Who May Use the Services
You may use the Services only if you are 13 years or older (provided however that if you are between 13 and the age of majority in your jurisdiction, your legal guardian has reviewed and agrees to these Terms) and are not barred from using the Services under applicable law. In order to use certain features of the Services, you must create an account (“Account”) via the Site and become a registered user (“User”). By registering for an Account, you agree to provide us with accurate and complete information and keep it up-to-date. You’ll notify us immediately of any unauthorized use of your Account and you’re responsible for all activities that occur under your Account, whether or not you know about them.
4. Using the Services
The Services offer a APIs and web-based tools to build LLM-powered applications. Subject to your complete and ongoing compliance with these Terms, Markprompt grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service, including access to its proprietary APIs and tools. You may also search for and install certain Applications that are made available via the Services and which can be used in conjunction with the Services.
4.2. Projects and Teams
You can either work on a Project in your personal space (“Personal Space”) or you can create a team space (“Team Space”), both of which allow you to collaborate on one or more Projects with a group of Users of your choosing (such group, a “Team”). For example, a Project Team might consist of a group of co-workers that collaboratively work on building LLM applications. Each User that is a member of a Team is referred to as a “Member” and one designated administrator User will be referred to as an “Admin”. Any data or other content associated with a Project, including any processed content, is called “Project Content.”
An Admin or a Member marked as having editor permissions can add Members to the Team, make changes to the composition of the Team, manage editing rights of Members, and otherwise manage the Team at whatever level they are set at in the system. Each Member must sign up as a User of the Services and agree to these Terms in order to participate in any Team.
4.3. Sharing and Permissions
Any Members of a Team may freely access and view the Project and any Project Content that is saved in the Team Space. Any Members that are given editing permissions can also modify and create derivative works based upon the Project and any Project Content in the Team Space, as permitted by the functionality of the Services. You are hereby authorizing us to share all your Projects (whether completed or work in progress), Project Content and other User Content associated with a Project, with all the Team Members associated with a Project.
You acknowledge sole responsibility for and assume all risk arising from sharing your Project and Project Content. You understand that anyone who has access to your Project can copy and save their own version and edit it.
If you create a Project, you hereby grant Markprompt the rights and licenses necessary to make your Project available to you, your Team, other Users and other visitors to the Services as described above. You hereby grant and agree to grant, or permit Markprompt to grant, your Team, and other Users of the Services the right to copy, distribute, modify and create derivative works based upon your Project and the Project Content as permitted by the functionality of the Services.
Markprompt has developed and provides access to the APIs that may be used to access the Services or develop Applications in accordance with any instructions and documentation provided by Markprompt. You may only use the APIs in accordance with the documentation or as otherwise communicated to you by us. Due to the nature of the Services, we will update the APIs regularly.
5. Developing Applications for Use on the Services
5.1. Applications, General
As a User, you may develop certain types of applications that can be submitted to and made available via and published to the Services, for use by yourself in your Personal Space, your Team in your Team Space, or all other Users of the Services (the “Application(s)”). Markprompt provides access to APIs that you may use to develop the Applications, subject to the API terms set forth in Section 4.4 above and any other terms provided by Markprompt governing use of the API.
5.2. Submitting Applications
You may submit an Application to be made available via the Services by registering the Application through the User portal on the Services. At the time of submission, you may select who will have access to your Application when it is published. Applications may be used by (i) yourself only, for your own personal use; (ii) your Team on a Team Space; or (iii) all other Users of the Services, which access you can designate at the time of submission or otherwise via the functionality of the Services. At any time after publishing an Application to the Services, Markprompt reserves the right to remove the Application from the Services for any reason, at its sole discretion.
If you create an Application, subject to the sharing options selected by you, you hereby grant Markprompt the rights and licenses necessary to make your Application available to you, your Team, other Users and other visitors to the Services as described above. Subject to the sharing options selected by you in connection with each Application, You hereby grant and agree to grant, or permit Markprompt to grant, your Team, and other Users of the Services the right to copy, distribute, modify and create derivative works based upon your Application as permitted by the functionality of the Services.
5.3. Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, designs, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services (including without limitation, the Tools); and (ii) “User Content” means any text, graphics, designs, images, music, software, audio, video, works of authorship of any kind, and information or other materials that Users (including you) provide, upload or otherwise make available through the Services (including without limitation, as part of a Page, Application, Project, Project Content, or Personal Space).
5.4. Responsibility of User Content
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content, nor any use of your User Content by Markprompt or any other users on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.5. Rights in User Content Granted by You
By making any User Content, including Applications, available through our Services you hereby grant to Markprompt an irrevocable, limited, non-exclusive, worldwide, royalty-free, transferable license, with a right to sublicense, to store, access, view, use, copy, modify, publicly display, publicly perform, publish, transfer, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, to provide the Services, and when applicable as permitted by the functionality of the Service. By providing User Content to or via the Service to other Users of the Service, you grant those Users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
You understand and agree that you share your User Content and use User Content of other Users through the Services at your own risk. You are solely responsible for resolving any intellectual property or ownership disputes between Team Members or between you and anyone else that has access to your Projects and/or other User Content an account of your public posting, so you should exercise good judgment when deciding whether or not to participate in a Team or about the public posting of any of your Projects and/or other User Content.
You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Markprompt and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Markprompt, the Service, and these Terms.
5.6. Rights in Content Granted by Markprompt
If you are not a registered User, subject to your compliance with these Terms, Markprompt grants you a limited, non-exclusive, non-transferable license, to view any Content to which you are permitted access solely for your personal and non-commercial purposes.
If you are a registered User, subject to your compliance with these Terms, Markprompt grants you a limited, non-exclusive, worldwide, non-transferable, non-sublicensable license to use, access and view the Content (including any User Content as applicable) solely in connection with your permitted use of the Services.
In addition, Markprompt grants (i) your Team Members (and by adding any Team Members to your Project Team, you hereby allow Markprompt to grant to your Team Members) the right to copy, distribute, modify and create derivative works based upon your Project and the Project Content as permitted by the functionality of the Services and (ii) other Users the right to access and use the Applications that you publish and make available via the Services as permitted by and in accordance with the functionality of the Services.
Markprompt disclaims any and all liability in connection with User Content (including Projects and Applications). We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content or your use of any User Content (including Projects and Applications) made available to you via the Services. You acknowledge sole responsibility for, and assume all risk arising from, your use of or integration with any User Content (including Projects and Applications).
Markprompt may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Markprompt with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Markprompt does not permit copyright-infringing activities on the Service.
5.7. Deleting Content
You can remove certain User Content through the Services. However, some of your User Content (including, without limitation, cached data stored for performance purposes) may not be removed immediately, and may continue to exist on the Services in archive or backup form. However, we may remove or delete your User Content within a reasonable period of time after the termination or cancellation of your Account. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
6. General Prohibitions
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or dentity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Services, or any individual element within the Services, Markprompt’s name, any Markprompt trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Markprompt’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Markprompt’s computer systems, or the technical delivery systems of Markprompt’s providers;
- Attempt to probe, scan or test the vulnerability of any Markprompt system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Markprompt or any of Markprompt’s providers or any other third party (including another user) to protect the Services or Content;
- Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Markprompt or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Markprompt trademark, logo URL or product name without Markprompt’s express written consent;
- Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or the functionality of the Services;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer or in any way attempt to derive the source code of any of the software used to provide the Services or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending or uploading a virus, adware, spyware, worm, or other malicious code, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing. Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content or User Content to be objectionable, in violation of these Terms or the law. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
7. Ownership; Proprietary Rights.
The Service is owned and operated by Markprompt. The Content, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Markprompt are protected by intellectual property and other laws. All materials included in the Service, including the Content and any derivative works made from or modifications to the Content, are the property of Markprompt or its third party licensors. Except as expressly authorized by Markprompt, you may not make use of the Content. Markprompt reserves all rights to the Content and the Services not granted expressly in these Terms. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
As between you and Markprompt, you own your User Content. Markprompt does not claim any ownership rights in any User Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”) by emailing us at firstname.lastname@example.org. As we need to be able to freely work with your Feedback to improve the Services, you hereby grant Markprompt an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
8. DMCA Policy
8.1. DMCA Notification.
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Motif Land, Inc. ATTN: Legal Department (Copyright Notification) 2261 Market Street #4059, San Francisco, CA 94114 Email: email@example.com
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law;
and a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
8.2. Repeat Infringers.
Markprompt will promptly terminate the accounts of users that are determined by Markprompt to be repeat infringers.
9. Links to and Integration with Third Party Websites or Resources
The Services may contain links to third-party websites or resources and may offer integration with such third-party websites or services. We provide these links and integration functions only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. Third party services are not under Markprompt’s control, and, to the fullest extent permitted by law, Markprompt is not responsible for any third party service’s use of your exported information. You acknowledge sole responsibility for, and assume all risk arising from, your use of or integration with any third-party websites or resources. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
10. Subscriptions and Payment
Subject to these Terms, certain features within the Services are provided to you for free up to certain limits and with limited features and certain features of the Service may require you to pay fees (“Subscription”). Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Details about the different types of Subscriptions, and the limits and available features associated with the Services, are available in the Service, under the Account settings.
You may change the type of Subscription at any time by (i) emailing us at firstname.lastname@example.org and following any instructions, if any, we provide to you in response to your change request or (ii) initiating a change through your Billing settings within the Services.
10.2. Payment Terms
When you purchase a Subscription (such purchase, a “Transaction”) you expressly authorize us (or our third party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including, without limitation, your credit-card number, the expiration date of your credit card, and your address(es) for billing (such information, Payment Information). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to our third party service providers so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).
10.3. Authorization for Recurring Payments
If you purchase a Subscription, you will be charged the then-applicable Subscription fee (“Subscription Fee”) at the beginning of your Subscription and each month, quarter or year thereafter, depending on the term of your Subscription, at the then-current rate. Subscription Fees are outlined under the Billing settings in the Service. Please note that our Subscription Fees are subject to change, although we will notify you before we effect any change in Subscription Fees.
By agreeing to these Terms and purchasing a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Markprompt. We (or our third party payment processor) will automatically charge you in accordance with term of your Subscription (e.g., each month, quarter or year), on the calendar day corresponding to the commencement of your Subscription, using the Payment Information you have provided. In the event your Subscription began on a day not contained in a given month, your payment method will be charged on a day in the applicable month or such other day as we deem appropriate. For example, if you started a monthly Subscription on January 31st, your next payment date is likely to be February 28th, and your payment method would be billed on that date. We may also periodically authorize your payment method in anticipation of applicable fees or related charges. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or the Subscription in accordance with these Terms.
10.4. Cancelling Subscriptions
You may cancel your Subscription at any time but please note that such cancellation will be effective at the end of the then-current Subscription period. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can either (i) email us at email@example.com and follow any instructions, if any, we provide to you in response to your cancellation request, or (ii) initiate a cancellation through your Account settings within the Services. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then current Subscription period. If you cancel, we will allow you to access any private Projects associated with such Subscription until the most recently paid-up Subscription period ends. Cancelling your Subscription won’t cancel your Account. See Termination section below for information on terminating your Account.
Markprompt may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. We may, at our discretion, not delete your Project Content and User Content, but you and your Team Members will not be able to access it, unless and until you purchase a Subscription again or modify your Project Team such that it meets the limits of a free Project Team. Notwithstanding the foregoing, Markprompt makes no guarantees regarding the retention of your Project Content and User Content. You acknowledge sole responsibility for and assume all risk arising from cancellation of your Subscription, including, without limitation, any loss of data associated with a Project.
11. Term and Termination
These Terms are effective beginning when you accept the Terms or first access or use the Service, and ending when terminated as described in herein.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice or liability to you, provided that, if you have paid for a Subscription and the termination is not due to your breach of this Agreement, Markprompt will refund you any prepaid fees for the period of your Subscription that extends beyond the effective date of such termination. You may cancel your Account at any time via the Service settings, or by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of Services or your Account any provisions which by their nature are intended to survive will survive, including without limitation, intellectual property ownership, any licenses granted to Markprompt, your obligation to pay fees due to Markprompt, limitation of liability, disclaimers, and arbitration terms.
12. Warranty Disclaimers
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. MARKPROMPT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. MARKPROMPT DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND MARKPROMPT DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. MARKPROMPT WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF ANY SUCH DATA.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR MARKPROMPT ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE MARKPROMPT ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER OR YOUR USE OF ANY CONTENT OR USER CONTENT OR YOUR PARTICIPATION NIN ANY TEAM OR PROJECT. WE ARE NOT RESPONSIBLE FOR ANY OTHER PERSON’S USE OF YOUR USER CONTENT OR THE RESULTS OF PUBLISHING YOUR USER CONTENT TO THE PUBLIC. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Markprompt does not disclaim any warranty or other right that Markprompt is prohibited from disclaiming under applicable law.
You will defend, indemnify and hold harmless Markprompt and its officers, directors, employees and agents, affiliates and subsidiaries (the “Markprompt Entities”) from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Limitation of Liability
NEITHER MARKPROMPT NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, TOOLS, OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, TOOLS, OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MARKPROMPT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EXCEPT AS PROVIDED IN SECTION 16.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, MARKPROMPT’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ANY DISPUTE IN RELATION TO THE SERVICES IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO MARKPROMPT FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. Governing Law
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Markprompt submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Content included in the Service are appropriate or available for use in other locations.
16. Dispute Resolution for Individual Consumers
In the interest of resolving disputes between you and Markprompt in the most expedient and cost effective manner, and except as described in Section 16.2 and 16.3, you and Markprompt agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MARKPROMPT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 within 30 days after the date that you agree to these Terms by sending a letter to Motif Land, Inc., Attention: Legal Department – Arbitration Opt-Out, 2261 Market Street #4059, San Francisco, CA 94114 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Markprompt receives your Opt-Out Notice, this Section 16 will be void and any action arising out of these Terms will be resolved as set forth in Section 15. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
Any arbitration between you and Markprompt will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Markprompt. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.5. Notice of Arbitration; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Markprompt’s address for Notice is: Motif Land, Inc., 2261 Market Street #4059, San Francisco, CA 94114. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Markprompt may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Markprompt must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Markprompt in settlement of the dispute prior to the award, Markprompt will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
If you commence arbitration in accordance with these Terms, Markprompt will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in [county], [state], but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non- appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Markprompt for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.7. No Class Actions
YOU AND MARKPROMPT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Markprompt agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.8. Modifications to this Arbitration Provision
If Markprompt makes any future change to this arbitration provision, other than a change to Markprompt’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Markprompt’s address for Notice of Arbitration, in which case your account with Markprompt will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If Section 16.7 or the entirety of this Section 16 is found to be unenforceable, or if Markprompt receives an Opt- Out Notice from you, then the entirety of this Section 16 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 15 will govern any conduct the arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Unless the arbitrator finds your Claim frivolous, we’ll pay for all filing, administration and arbitrator fees if your Claim is for less than $10,000, and we won’t seek our attorneys’ fees and costs if we prevail in the arbitration. The arbitration may be conducted in writing, remotely (e.g., by videoconference) or in-person in the county where you live (or at some other location that we both agree to).
17.1. Consent to Electronic Communications
We may send you emails concerning out products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
18. General Terms
These Terms constitute the entire and exclusive understanding and agreement between Markprompt and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Markprompt and you regarding the Services and Content. If for any reason an arbitrator or court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Markprompt’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Markprompt may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Markprompt’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
You agree that Markprompt may identify you or your company and use your company’s logo and trademarks (collectively, the “Marks”) on the Site and in marketing materials to identify you or your company as a user of the Services, and you hereby grant us a non-exclusive, royalty-free license to do so on our Site or in any media now or later developed in connection with any marketing, promotion or advertising of Markprompt or the Services. If you do not want to allow us the right to use your Marks or identify you or your company you may opt out such marketing requests by emailing us at email@example.com.
21. Additional Terms
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
22. Notice to California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
23. No Support
We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
24. Contact Information
If you have any questions about these Terms or the Services please contact Markprompt at: firstname.lastname@example.org, or write to us at:
Motif Land, Inc.
2261 Market Street #4059
San Francisco, CA 94114
25. Notice Regarding Apple
This Section 25 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Markprompt only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.