Marketino Terms of Service
Thank you for choosing Marketino for your business. When you use our products and services you’re agreeing to our terms, so please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations. Certain Capitalized words are defined in Section 14 (Definitions).
Marketino provides online business management software services designed primarily for businesses in the service industry (“Software Service”). You can access our Software Service via our App and the client login page on our Website.
These Terms of Service (“Agreement”) apply to any use of and access to the Services by you and your Affiliates. By accessing or using the Services (or enabling an Affiliate to access or use the Services), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.
This Agreement is effective (“Effective Date”) on the earlier of (1) the date you accept this Agreement by clicking an “I Agree” button or otherwise indicate that you accept this Agreement (including through an Order Form), or (2) the date you (or an Affiliate) first access or use the Services.
1. General Terms
1.1 Agreement. This Agreement is a binding legal agreement between you and Marketino Inc, a Delaware Corporation (“Marketino”, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and Marketino are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
Our Privacy Policy explains how we collect and use information that’s submitted to the Services. By using the Services, you are indicating that you’ve read the Privacy Policy and agree to its terms.
This Agreement applies to any use of the Services, whether in connection with a paid subscription, free version or a free trial.
With respect to Personal Information (defined within the Privacy Annex) that is processed on behalf of you which relates to residents of the State of California, the terms of the Privacy Annex apply between the Parties.
1.2 Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to Website as may be updated by Marketino from time to time, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by submitting a Support Request. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The information at the bottom of the Agreement indicates when it was last changed.
2. Services
2.1 Software Services. Marketino will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. We reserve the right to suspend any Services in connection with a Force Majeure event (as described in Section 13.8), if we believe any malicious software is being used in connection with your account, or during planned downtime. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
2.2 Third Party Offerings. Third Party Offerings are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply Marketino’s endorsement of or affiliation with the provider. Marketino does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings. Marketino has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting Marketino to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS).
2.3 Support Services. As part of the Services you will have access to Marketino’s standard support services described at Website as may be updated by Marketino from time to time.
2.4 Payment Processing. Marketino offers the ability to process payments through the Services (“Payment Processing Services”). Payment Processing Services are provided by our third party payment processing partner as Third Party Offerings and any procurement by you or your Affiliates will be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third party processor. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services.
You represent and warrant that you are fully compliant with any applicable rules regarding differential pricing, including but not limited to Visa rules related to dual pricing, and will adhere to all consumer disclosure requirements. Marketino’s App is a merchant-facing tool designed to assist with processing payments for card-present transactions and is not a customer-facing application. Therefore, you are solely responsible for managing and implementing your pricing policies, including dual pricing or differential pricing, and ensuring these policies are clearly communicated to your customers, including displaying different prices for cash and card payments and other offered payment methods. This communication must be done verbally and, where applicable, all prices must be prominently displayed on published price lists. You further acknowledge that you are solely responsible for ensuring compliance with these requirements and any legal obligations arising from the use of differential pricing in your business. Marketino will not be held liable for any failure to comply with these rules and obligations.
You agree to provide Marketino accurate and complete information about you and your business, and you authorize Marketino to share this information, along with transaction data related to your use of the Payment Processing Services, in accordance with our Privacy Policy. You further represent and warrant that you have obtained all necessary consents from your customers to share their information with Marketino and its third-party service providers, processors, and sponsor banks, as required for the provision of the Payment Processing Services.
To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from funds payable to you arising from the settlement of card transactions through Payment Processing Services. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest. In addition to the amount due, delinquent accounts may be charged with fees that are incidental to the collection of delinquent accounts and chargebacks including, but not limited to, collection fees and convenience fees and other third parties charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to Marketino by you. Such communication may be made by Marketino or by anyone on its behalf, including but not limited to a third party collection agent.
Marketino’s Payment Processing Services support ‘Tap to Pay’ technology for card-present transactions. By using this technology, you acknowledge that you are solely responsible for ensuring that your devices are compatible with ‘Tap to Pay’ and for the proper handling and security of payment information during these transactions. Marketino is not liable for any issues arising from the use of ‘Tap to Pay’ technology, including security breaches or unauthorized transactions resulting from device malfunctions or improper use. Furthermore, you are responsible for obtaining all necessary customer consents, if applicable, in accordance with relevant laws and regulations when processing payments via ‘Tap to Pay’.
2.5 Promotional and Communication Services. As part of the Services, Marketino may send you promotional messages or partnership proposals, which may include special offers, updates, and opportunities for collaboration. By using the Services, you consent to receiving such communications from Marketino. However, you may opt out of receiving these communications at any time by notifying Marketino, in which case you will no longer receive promotional or collaboration-related messages, but the essential communication regarding the use of the Services will continue.
3. Your Responsibilities
3.1 Liability for Affiliates and End Users. You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, and acceptable use policies provided or made available by Marketino, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.
3.2 Data; Unauthorized Access; Maintaining Networks. You will: (1) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (2) prevent unauthorized access to, or use of, the Services, and notify Marketino promptly of any unauthorized access or use; and (3) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
3.3 Restrictions on Use. You and your Affiliates and End Users will not: (1) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (2) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (3) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (4) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (5) restrict or inhibit any other person or entity from using the Services; (6) remove any copyright, trademark or other proprietary rights notice from the Services; (7) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (8) systematically download and store Services content; (9) use the Services to send unsolicited electronic messages (aka spamming); or (10) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (10) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, Marketino grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Marketino reserves the right to revoke these permissions at any time and without notice.
3.4 Cardholder Data. You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.
3.5 User Names and Passwords. Marketino may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of Marketino. You, and not Marketino, are responsible for any use or misuse of user names or passwords associated with your account.
3.6 Consent. You are responsible for obtaining and ensuring that your End Users have provided the necessary consent to receive emails and SMS messages related to the Services. This includes, but is not limited to, consent for automated marketing communications.
4. Fees and Payment
4.1 Software Services Fees. Fees for the Software Services (“Subscription Fees”) are set forth on the applicable Website. Subscription Fees are subject to change and will be updated to the pricing set forth on the applicable Website.
4.2. Software Service Fees and Payment Processing Fees. You will set the prices for all your products and services for cash payments. Based on these cash prices, we will dynamically and independently determine the corresponding prices for transactions made using non-cash payment methods. When a sale is conducted using a non-cash payment method, the positive difference between the non-cash sale amount and the equivalent cash sale amount will be retained by Marketino or its payment processing partner. This retained amount covers both the payment processing fees and the Software Service Fees. As a result, you will receive the same net amount from a non-cash sale as you would from a cash sale. While you are technically responsible for the Software Service Fees and payment processing fees, the structure ensures that the financial outcome is equivalent to receiving the full cash price without any deductions.
4.3 Payment Terms. You agree to pay any applicable fees stated in this Agreement. You are responsible for all fees for the entire term, All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. You will provide Marketino with valid and updated credit card information or another form of payment acceptable to Marketino. If you provide credit card information, you represent that you are authorized to use the card and you authorize Marketino to charge the card for all payments hereunder. By submitting payment information, you authorize Marketino to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Marketino for purposes of acknowledging or completing any payment.
4.4 Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at the lesser of either (1) 1.5% of the outstanding balance per month, or (2) the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by Marketino within 30 days after the applicable due date will be deemed a material default under this Agreement, and Marketino will be entitled to either suspend the Services or terminate the Agreement in accordance with Section 8.2.
4.5 Payment Errors. If you believe a payment has been processed in error, you must provide written notice to Marketino within 30 days after the date of payment specifying the nature of the error and the amount in dispute (“Payment Error Notice”). If the Payment Error Notice is not received by Marketino within such a 30 day period, the payment will be deemed final.
4.6 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If Marketino is legally required to pay or collect any Taxes on your behalf, Marketino will invoice you and you will pay the invoiced amount. You acknowledge and agree that we or our Third Party Offerings provider of Payment Processing Services may make certain reports to tax authorities (e.g., 1099 forms) regarding transactions that we process and merchants to which Payment Processing Services are provided. For clarity, Marketino will be solely responsible for taxes assessed on Marketino based on its income.
5. Intellectual Property Rights
5.1 Marketino Intellectual Property. Marketino or its affiliates own all right, title and interest in and to the Services, the Marketino Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Marketino and its affiliates reserve all rights, title and interest in and to the Services, the Marketino Data and Aggregated Data, including, without limitation, all related intellectual property rights. As between you and Marketino, all Marketino Marks are owned by Marketino or its affiliates. You agree not to display or use any Marketino Marks in any manner without Marketino’s express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
5.2 License Grant to You. Subject to the terms and conditions of this Agreement, Marketino hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services during the Term and solely for your internal business purposes. You will not: (1) modify, copy or create any derivative works based on the Services; (2) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (3) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by Marketino in the provision of the Services; (4) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (5) copy any features, functions, integrations, interfaces or graphics of the Services; or (6) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
5.3 License Grant to Marketino. You hereby grant to Marketino and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (1) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or Marketino’s or its affiliates’ business(es); and (2) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (x) providing the Services, and (y) for marketing and promotional purposes in connection with Marketino’s business. Marketino agrees that any use by Marketino of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to Marketino or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.
5.4 Reporting Infringement. Marketino respects the intellectual property rights of others and will respond to properly submitted notices of alleged infringement. If you believe that any content within the Services infringes your intellectual property rights, please submit a written notice to Marketino, including relevant details of the alleged infringement. If applicable, Marketino complies with the Digital Millennium Copyright Act (DMCA) and will process takedown requests in accordance with its provisions.
5.5 User Content. By submitting, posting, or otherwise providing any content within the Services, you affirm that you own all necessary rights to such content or have obtained appropriate permissions. You grant Marketino a limited, non-exclusive, worldwide, royalty-free license to use, reproduce, and display such content solely for the purpose of providing the Services.
6. Data Ownership and Use
6.1 Your Data. As between you and Marketino, you own all right, title and interest in Your Data. You hereby grant to Marketino a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing Marketino’s or its affiliates’ products and services and/or complementary products and services of our partners. You represent and warrant to Marketino that you have all rights necessary to grant the licenses in this Section 6.1, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
6.2 User Brings User (UBU) Data Sharing. By participating in Marketino’s User Brings User (UBU) program, you acknowledge and agree that certain limited data related to your account may be shared with the referring user who introduced you to Marketino. Specifically, Marketino may disclose your name (or business name, as applicable) and relevant transaction volume solely for the purpose of determining eligibility for financial benefits under the UBU program. This data sharing is strictly limited to the duration necessary to assess whether the required transaction threshold has been met. Once the threshold is reached, Marketino will cease sharing any transaction volume details and will only notify the referring user that the threshold has been achieved. No further data analysis, insights, or reporting will be provided beyond what is necessary to administer the UBU program. By participating, you represent and warrant that you have the authority to permit such data sharing and that your participation in the UBU program does not violate any applicable laws or third-party rights.
6.3 Accuracy of Data and Tax Compliance. You are solely responsible for the accuracy and completeness of all system settings and data entered into the Services. Specifically, you are responsible for ensuring the correct entry of tax rates and their proper application within the system. You must accurately input all your expenses and ensure the accuracy of the data entered. It is your responsibility to maintain original receipts and documentation necessary for tax filing purposes. You are solely responsible for the timely and accurate filing of taxes, and for the management of your entire business operations in compliance with applicable laws. Marketino is not liable for any errors, omissions, or inaccuracies in the data entered by you or for any failure to comply with tax obligations.
6.4 Marketino Data. Notwithstanding Section 6.1, all right, title and interest in any data or information collected by Marketino independently and without access to, reference to or use of any of Your Data, will be solely owned by Marketino (collectively, “Marketino Data”).
6.5 Aggregated Data. You agree Marketino owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit Marketino or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
6.6 Personal Information. Our Privacy Policy governs how we collect and use personal information that is submitted through the Services. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy. Without limitation, you acknowledge and agree that Marketino may process Your Data for the purpose of providing the Services and related functions, such as billing and customer or End User support, as well as to send direct marketing communications to your representatives’ or End Users, data science and product or service improvement and reporting. You represent and warrant that You are authorized to process Your Data and make such data available to Marketino for uses as set out in the Agreement and Privacy Policy, including through appropriate notice, consent and by your referring individuals, such as End Users, to our Privacy Policy (notwithstanding Marketino’s ability and right, to which You agree, to request consent, and provide notice and its Privacy Policy separately to individuals).
6.7 Protection and Security. During the Term, Marketino will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data. Marketino implements reasonable and industry-standard measures to protect the security of the Services and any data transmitted through them. However, no system is completely secure, and Marketino cannot guarantee the absolute security of your data. You are responsible for maintaining the confidentiality of your account credentials, including any passwords, and for all activities that occur under your account. By using the Services, you agree to take appropriate steps to protect your own data and devices. Marketino is not liable for any unauthorized access or breaches of security outside of our direct control, including but not limited to, issues related to third-party services or user negligence.
6.8 Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
6.9 Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that Marketino has no obligation whatsoever to resolve or intervene in such disputes.
7. Confidential Information
7.1 A Party will not disclose or use any Confidential Information of the other Party except: (1) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (2) with the other Party’s prior written permission; or (3) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (2) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (3) was independently developed by a Party without breach of any obligation owed to the other Party; or (4) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 7 will restrict Marketino with respect to Marketino Data or Aggregated Data.
8. Term, Termination and Suspension
8.1 Term. The initial term of this Agreement is 30 days (“Initial Term”). The Initial Term begins on the Effective Date and automatically renews in successive and consecutive 30 day periods (each a “Renewal Term” and collectively with the Initial Term, the “Subscription Term”) until this Agreement is properly terminated. Either Party may terminate this Agreement for any reason or no reason, by giving the other Party at least 30 days’ notice before the end of the relevant Subscription Term.
8.2 Termination for Cause. Marketino may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe Marketino, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term.
8.3 Rights on Termination. Upon termination of this Agreement you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and except as specified in the following paragraph, Marketino will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.
For a period of no greater than 30 days following a notice of termination, Marketino will make Your Data available to you through Marketino’s standard web services. Upon request by you within 30 days following the termination date of this Agreement, and provided that you have paid Marketino all amounts owed under this Agreement, Marketino will make Your Data in its possession or control available to you through Marketino’s data export service. After such 30 day period, Marketino will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require Marketino’s assistance in retrieving Your Data, additional fees may apply.
The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.3, 3, 4 (other than Section 4.1), 5, 6, 7, 8.3, 8.4, 9.1, 9.3, 10, 11, 12, 13, and 14.
8.4 Right to Terminate or Suspend Services. We may suspend or terminate your access to and use of the Services (or any portion thereof) at any time without notice if we believe (1) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to Marketino or any third party, or (2) that we are required to do so by law.
9. Disclaimer
9.1 Accuracy of Your Account Information. You agree to provide Marketino with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by Marketino (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify Marketino in writing if any Account Information changes. You agree that Marketino has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.
9.2 DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARKETINO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. MARKETINO DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH MARKETINO AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “MARKETINO PARTIES”).
10. Indemnification
10.1 You agree to indemnify, defend, and hold harmless the Marketino Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or relating to: (1) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (2) any access to or use of the Services by you, an Affiliate or End User; (3) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (4) any dispute between you and another party regarding ownership of or access to Your Data.
11. Limitations and Exclusions of Liability
11.1 MARKETINO EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY MARKETINO OR THIRD PARTY. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MARKETINO PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR $100.00 (USD), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH MARKETINO AND THE MARKETINO PARTIES.
IN NO EVENT WILL ANY MARKETINO PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF MARKETINO, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Export Controls
12.1 You will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. You represent and warrant to Marketino that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws. If you reside outside the United States, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your local jurisdiction.
13. Miscellaneous
13.1 Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Delaware without regard to conflicts of laws principles. The U.N. Convention on the International Sale of Goods will not apply.
13.2 Mandatory Informal Dispute Resolution. If you have any dispute with Marketino arising out of or relating to this Agreement, you agree to notify Marketino in writing with a brief, written description of the dispute and your contact information, and Marketino will have 30 days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such 30 day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.
13.3 Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND MARKETINO, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 13.2 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND MARKETINO AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures (currently accessible at https://www.adr.org/sites/default/files/Commercial-Rules-Web.pdf) as amended by this Agreement. Any arbitration hearing will be held in New Castle County, Delaware. The applicable governing law will be as set forth in Section 13.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
13.4 Entire Agreement. This Agreement, together with any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and Marketino with respect to the subject matter hereof. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between Marketino, on the one hand, and you or any Affiliate, on the other hand.
13.5 Waiver and Severability. No waiver of any provision of this Agreement by Marketino will be effective unless in writing and signed by Marketino. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
13.6 Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without Marketino’s prior written consent. Marketino may assign, transfer or sublicense any or all of Marketino’s rights or obligations under this Agreement without restriction.
13.7 Notices. Any notices provided by Marketino under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from Marketino through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to Marketino under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to Marketino, Inc., Attn: Marketino Customer Support, 16192 Coastal Hwy, Lewes DE 19958.
13.8 Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Marketino’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
13.9 Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
13.10 Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Marketino.
14. Definitions
For the purposes of this Agreement, the following Capitlized terms will have the meanings set forth for each of them below:
14.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.
14.2 “Aggregated Data” means anonymized, de-identified, or aggregated data derived by or through the operation of the Services that is created by or on behalf of Marketino in compliance with applicable laws and that does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
14.3 “App” means mobile application through which Marketino makes the Software Service available.
14.4 “Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and you. Cardholder Data is a subset of End User Data.
14.5 “Confidential Information” means (1) any software utilized by Marketino in the provision of the Services and its respective source code; (2) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any special pricing or other non-standard terms agreed to by the Parties.
14.6 “Documentation” means online user guides, documentation, and help and training materials, as may be updated by Marketino from time to time, accessible at the applicable Website(s), and any other materials provided by Marketino as part of the Services.
14.7 “End User” means a business or individual that schedules or purchases products or services from you through the Services, that you market to, communicate with, or target through the Services, or that otherwise interacts with you through the Services, or that you authorize to use the Services in connection with your business.
14.8 “End User Data” means all data, information or other material about an End User that you, an Affiliate or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Your Data that relates to specific End Users.
14.9 “Marketino Marks” means all service marks, logos and product and service names used, applied for, registered, or otherwise owned by Marketino and its affiliates.
14.10 “Order Form” means a separate ordering document, invoice, online form, or other documentation that specifies the Services ordered or purchased hereunder, the applicable Software Fees (or if the Services are free), other fees, and other terms as agreed to between the Parties. If an Order Form indicates that any Affiliates or Franchisees will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.
14.11 “PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
14.12 “Privacy Policy” means the Marketino Privacy Policy accessible at Website , as may be updated by Marketino from time to time.
14.13 “Privacy Annex” means the Marketino Privacy Annex to the Marketino Privacy Policy that governs the processing of Personal Information originating from the State of California, as may be updated by Marketino from time to time.
14.14 “Services” means the Software Services, Website, App and other services. “Services” excludes Third Party Offerings.
14.15 “Software Service” means the online and mobile business management services designed primarily for businesses in the service industry.
14.16 “Third Party Offerings” means any third party products, applications, websites, implementations or services, including payment processing services and loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.
14.17 “Website” means https://www.marketino.com (or such other URLs as specified by Marketino), as may be updated by Marketino from time to time and any other websites through which Marketino makes the Software Service available.
14.18 “Your Data” means any data, information or material provided or submitted or made available by you and Affiliates to the Services. Your Data may include End User Data and Cardholder Data (and your or their representative’s data), but excludes Aggregated Data.
Last Updated: February 1, 2025
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