Terms of Service
Please read these Terms of Service carefully as they contain important information about your legal rights, remedies and obligations relating to our Site and Services (the “Markett Platform”). By accessing or using the Markett Platform (including Kickback branded sites and services), you agree to comply with and be bound by these Terms of Service.
Please note: Section 15 of these Terms of Service contains an arbitration clause and class action waiver that applies to all Markett Users. If your Country of Residence is the United States, this provision applies to all disputes with Markett. By accepting these Terms of Service, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
Last Updated: September 18, 2020
Thank you for using Markett!
These Terms of Service (“Terms”) constitute a legally binding agreement (the “Agreement”) between you (“you,” or “your”) and Markett Technologies, Inc. (“Markett,” “we,” “us” or “our”), a California corporation, governing your use of the Markett websites and technology platform, including but not limited to markett.com, kickback.money, and the Kickback mobile applications (collectively referred to as the “Markett Platform”).
The services offered by Markett under the Terms of Service include various products and services to help you sell or promote goods and services to buyers, whether online or in person.
Table of Contents
- Scope of Markett Services
- Eligibility, Using the Markett Platform
- Modification of these Terms
- Your Information
- Markett Communications
- Restricted Activities
- Marketer Representations & Warranties
- Proprietary Rights & Trademark License
- Copyright Complaints & Copyright Agent
- Limitation of Liability
- Arbitration Clause & Class Action Waiver
- Term & Termination
- Notices & Complaints
- General Provisions
1. Scope of Markett Services
1.1 The Markett Platform provides a marketplace where persons seeking to promote a particular company’s products or services (“Marketers”) can connect with organizations or brands (“Companies”). Companies can build and manage Marketer teams and campaigns by creating unique promotional codes (“Promo Codes”) that are distributed to Marketers for the promotional purposes of acquiring new users, purchasers, or accounts (collectively, “Customers”). Any such services offered by Markett are referred to in these Terms of Services as the “Services”. Any new features or tools added to the current Services shall be also subject to the Terms of Service.
1.2 Companies and Marketers are collectively referred to herein as “Users” and each User shall create a User account that enables such User to access the Markett Platform.
1.3 Subject to section 1.2, the User signing up for the Service will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the User who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Service.
1.4 If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
1.5 Markett does not provide marketing or promotional services. It is solely up to the Company to decide whether or not to distribute a Promo Code through the Markett Platform, and it is up to the Marketer to decide whether or not to circulate a Promo Code from any Company on the Markett Platform. Any decision by a User to offer or accept services once such user receives a Promo Code through the Markett Platform is a decision made in such User’s sole discretion. Markett shall have no liability for Promo Codes that are distributed and made available through the Services.
1.6 If you choose to use the Markett Platform as a User, your relationship with Markett is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Markett for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Markett. Markett does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your provision of the Services. You acknowledge and agree that you have complete discretion whether to engage in the Services or otherwise engage in other business or employment activities.
1.7 The Markett Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Markett is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Markett of such Third-Party Services.
1.8 Due to the nature of the Internet, Markett cannot guarantee the continuous and uninterrupted availability and accessibility of the Markett Platform. Markett may restrict the availability of the Markett Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Markett Platform. Markett may improve, enhance and modify the Markett Platform and introduce new Markett Services from time to time.
2. Eligibility, Using the Markett Platform
2.1 You must be at least 18 years old and able to enter into legally binding contracts to access and use the Markett Platform or register a User Account. By accessing or using the Markett Platform you represent and warrant that you are 18 or older and have the legal capacity and authority to enter into a contract.
2.2 The access to or use of certain areas and features of the Markett Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Markett Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise.
2.3 Markett may make access to and use of the Markett Platform, or certain areas or features of the Markett Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, or a User’s activity history. The Markett Platform is not available to Users who have had their User Account temporarily or permanently deactivated for violating any of the Terms.
2.4 If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms.
2.5 You may only use the Markett Platform for your own internal, personal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all applicable laws in your jurisdiction.
3. Modification of these Terms
3.1 We reserve the right to modify the terms and conditions of this Agreement at any time, effective upon posting the amended terms on this site. If we make changes, we will notify you by, at a minimum, revising the “Last Updated” date at the top of this Agreement. You are responsible for regularly reviewing this Agreement.
3.2 If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Markett Platform will constitute acceptance of the revised Terms.
3.3 Markett shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
4. Your Information
4.2 You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current and complete information and that we and other members of the public may rely on your Information as accurate, current and complete.
4.3 You warrant and represent to us that you are the sole author of your Information. To enable the Markett Platform to use your Information, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. Markett does not assert any ownership over your Information; rather, as between us and you, subject to the rights granted to us in this Agreement, you retain full ownership of all of your Information and any intellectual property rights or other proprietary rights associated with your Information.
4.4 You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password provided by you or Markett for accessing the Markett Platform. You are solely and fully responsible for all activities that occur on your User account, and Markett expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately at: [email protected].
5. Markett Communications
5.1 By becoming a User, you expressly consent and agree to accept and receive communications from us, including via e-mail, text message, calls, and push notifications to the cellular telephone number you provided to us.
5.2 By consenting to being contacted by Markett, you understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Markett, its affiliated companies and/or Companies, including but not limited to: operational communications concerning your User account or use of the Markett Platform or Services, updates concerning new and existing features on the Markett Platform, communications concerning promotions run by us or our third party partners, and news concerning Markett and industry developments.
5.3 If you wish to opt-out of promotional emails, text messages, or other communications, you may opt-out by following the unsubscribe options provided to you, including the “end” and “stopall” options described below. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. You acknowledge that you are not required to consent to receive promotional messages as a condition of using the Markett Platform or the Services.
5.4 You may opt out of text messages by replying "STOP" to any Markett text message. You may restart text messages again by sending a "START" message to the same number.
6. Restricted Activities
6.1 With respect to your use of the Markett Platform and your participation in the Services, you agree that you will not:
- impersonate any person or entity;
- stalk, threaten, or otherwise harass any person, or carry any weapons;
- violate any law, statute, ordinance or regulation;
- interfere with or disrupt the Services or the Markett Platform or the servers or networks connected to the Markett Platform;
- post Information or interact on the Markett Platform or Services in a manner which is false, inaccurate, misleading (directly or by omission or failure to update information), defamatory, libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, or illegal;
- use the Markett Platform in any way that infringes any third party’s rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Markett Platform;
- “frame” or “mirror” any part of the Markett Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose; or
- modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Markett Platform or any software used on or for the Markett Platform;
- rent, lease, lend, sell, redistribute, license or sublicense the Markett Platform or access to any portion of the Markett Platform;
- use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Markett Platform or its contents;
- link directly or indirectly to any other web sites;
- transfer or sell your User account, password and/or identification to any other party; or
- cause any third party to engage in the restricted activities above.
6.2 We reserve the right, but we have no obligation, to suspend or deactivate your User account if you do not comply with these prohibitions.
7. Marketer Representations & Warranties
7.1 By providing Services as a Marketer on the Markett Platform, you represent, warrant, and agree that:
- You have all appropriate licenses, approvals and authority to provide Services in all jurisdictions in which you provide Services.
- You will be solely responsible for any and all liability that results from or is alleged as a result of your provision of Services, including, but not limited to personal injuries, death and property damages.
- You will comply with all applicable laws, rules and regulations while providing Services, and you will be solely responsible for any violations of such provisions.
- You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
- You will not make any misrepresentation regarding Markett, the Markett Platform, the Services or your status as a Marketer, or, while providing the Services, or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.
- You will not attempt to defraud Markett or Companies in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity, we may withhold applicable payments in question.
- You will not discriminate or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation.
- You agree that we may obtain information about you, including your criminal records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
8.1 As a Marketer, you will receive applicable payments (net of Markett’s Administrative Fee, as discussed below) associated with each Company promotion. Markett will process all payments due to you through its third-party payments processor. You acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that we are required to withhold by law.
8.2 In exchange for permitting you to offer your Services through the Markett Platform as a Marketer, you agree to permit Markett to retain a fee based on each transaction in which you provide Services (the “Administrative Fee”). Markett reserves the right to change the Administrative Fee at any time in Markett’s discretion based upon local market factors, and Markett will provide you with notice in the event of such change. Continued use of the Markett Platform after any such change in the Administrative Fee calculation shall constitute your consent to such change.
8.3 Markett, at its sole discretion, may make available promotions with different features to any Marketers or prospective Marketers. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Markett.
9.1 Companies will pay the Fees applicable to the subscription to the Services (“Subscription Fees”) and any other applicable fees, including but not limited to applicable fees related the Account Owner (“Transaction Fees”). Together, the Subscription Fees, Transaction Fees and the Additional Fees are referred to as the “Fees”.
9.2 Companies must keep a valid credit card on file with us to pay for all incurred and recurring Fees. Markett will charge applicable Fees to the credit card account that Companies authorize (“Authorized Card”), and Markett will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
9.3 Subscription Fees are paid in advance and will be billed in 30 day intervals (each such date, a “Billing Date”). Transaction Fees and Additional Fees will be charged from time to time at Markett’s discretion. Companies will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Account Owner via the email provided. Companies will have approximately two weeks to bring up and settle any issues with the billing of Subscription Fees.
9.4 Companies are responsible for all applicable Taxes that arise from or as a result of the subscription to or purchase of Markett’s products and services. These Taxes are based on the rates applicable to the billing address Companies provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to the Authorized Card. If Companies are exempt from payment of such Taxes, they must provide us with evidence of the exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status.
10. Proprietary Rights & Trademark License
10.1 All intellectual property rights in the Markett Platform shall be owned by us absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Markett Platform are the property of their respective owners.
10.2 You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Markett. Markett shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
10.3 If you provide Services as a Marketer, Markett grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use of “Markett” and other Markett logos, designs, graphics, icons, scripts and service or trade dress (collectively, the “Markett Marks”) solely in connection with providing the Services through the Markett Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Markett’s prior written permission, which it may withhold in its sole discretion. The Markett Marks may not be used in any manner that is likely to cause confusion and must be used consistent with Markett’s then current program and trademark guidelines
10.4 You acknowledge that Markett is the owner and licensor of the Markett Marks, and that your use of the Markett Marks will confer no additional interest in or ownership of the Markett Marks in you but rather inures to the benefit of Markett. You agree to use the Markett Marks strictly in accordance with Markett’s Terms of Service, as may be provided to you and revised from time to time, and to immediately cease any use that Markett determines to nonconforming or otherwise unacceptable.
10.5 You agree that you will not:
- use the Promo Code for a purpose other than of promoting the applicable Company’s website, application, and the products and services available thereon;
- create any materials that incorporate the Markett Marks or any derivatives of the Markett Marks other than as expressly approved by Markett in writing;
- use the Markett Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Markett Marks other than in accordance with the terms, conditions and restrictions herein;
- take any other action that would jeopardize or impair Markett’s rights as owner of the Markett Marks or the legality and/or enforceability of the Markett Marks, including, without limitation, challenging or opposing Markett’s ownership in the Markett Marks;
- apply for trademark registration or renewal of trademark registration of any of the Markett Marks, any derivative of the Markett Marks, any combination of the Markett Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Markett Marks;
- use the Markett Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
10.6 Violation of any provision of this License may result in immediate termination of the License, in Markett’s sole discretion. If you create any materials bearing the Markett Marks (in violation of this Agreement or otherwise), you agree that upon their creation Markett exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the Markett Marks or derivative works based on the Markett Marks. You further agree to assign any interest or right you may have in such materials to Markett, and to provide information and execute any documents as reasonably requested by Markett to enable Markett to formalize such assignment.
11. Copyright Complaints & Copyright Agent
11.1 You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like Markett, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers.
The following disclaimers are made on behalf of Markett, our affiliates, and each of our respective officers, directors, employees, agents, shareholders and suppliers.
12.1 The Markett Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Markett Platform and/or the Services, including the ability to provide or receive Services at any given location or time.
12.2 We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
12.3 We do not warrant that your use of the Markett Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet your requirements, that any defects in the Markett Platform will be corrected, or that the Markett Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Markett Platform or Services.
12.4 We have no control over the quality of the marketing that occurs as a result of the Services. We cannot ensure that a Company or Marketer will complete an arranged marketing service.
12.5 We cannot guarantee that each Marketer is who he or she claims to be. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the Markett Platform by persons under the age of 18 in violation of this Agreement.
12.6 Markett is not responsible for the conduct, whether online or offline, of any User of the Markett Platform or Services. By using the Markett Platform and participating in the Services, you agree that Markett is not responsible for the acts or omissions of Users on the Markett Platform or participating in the Services.
12.7 It may be possible for others to obtain information about you that you provide, publish or post to or through the Markett Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Markett Platform or through the Services. Please carefully select the type of information that you post on the Markett Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
12.8 Opinions, advice, statements, offers, or other information or content made available through the Markett Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted on the Markett Platform or otherwise disseminated by third parties. We reserve the right, but we have no obligation, to monitor the materials posted in the public areas of the Markett Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
12.9 The Markett Platform may contain (or you may be sent through the Markett Platform) links to other web sites owned and operated by third parties (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (“Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites or Third Party Content accessed through the Markett Platform.
12.10 Location data provided by the Markett Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Markett, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by the Markett Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Markett Platform may be accessible to Markett and certain Users of the Markett Platform.
You will defend, indemnify, and hold us and our affiliates and each of our respective officers, directors, employees, agents, shareholders and suppliers harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Markett Platform and participation in the Services, including:
- your breach of this Agreement or the documents it incorporates by reference;
- your violation of any law or the rights of a third party as a result of your own interaction with such third party;
- any allegation that any materials that you submit to us or transmit through the Markett Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party;
- any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
In the event that you have a dispute with one or more Users, you agree to release Markett (including our affiliates and each of our respective officers, directors, employees, agents, shareholders, and suppliers) from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes with other Users or to your use of the Markett Platform or participation in the Services. Furthermore, you expressly waive any rights you may have under California Civil Code Section 1542 (or analogous laws of other states), which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” We reserve the right, but have no obligation, to monitor disputes between you and other Users.
15. Limitation of Liability
In no event will we, our affiliates, or each of our respective officers, directors, employees, agents, shareholders or suppliers, be liable to you for any incidental, special, punitive, consequential, or indirect damages (including, but not limited to, damages for deletion, corruption, loss of data, loss of programs, failure to store any information or other content maintained or transmitted by the Markett Platform, service interruptions, or for the cost of procurement of substitute services) arising out of or in connection with the Markett Platform, the Services, or this Agreement, however arising including negligence, even if we or our agents or representatives know or have been advised of the possibility of such damages (provided however that this provision shall not limit the scope of Markett’s insurance policies referenced at www.markett.com/safety). We will not be liable for any damages, direct, indirect, special, punitive, incidental and/or consequential (including, but not limited to physical damages, bodily injury, death and/or emotional distress and discomfort) arising out of your communicating with or meeting other users of the Markett Platform or services, even if we or our agents or representatives know or have been advised of the possibility of such damages. Certain jurisdictions may not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have additional rights.
16. Arbitration Clause & Class Action Waiver – IMPORTANT – Please review as this affects your legal rights
16.1 You agree that all disputes between you and us (whether or not such dispute involves a third party) with regard to your relationship with us, including without limitation disputes related to these terms of service, your use of the services, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you and we hereby expressly waive trial by jury; provided, however, that to the extent that you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of California.
16.2 Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court's rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a Class Action or Class-Wide Arbitration for any claims covered by this agreement to arbitrate.
16.3 You are giving up your right to participate as a Class Representative or Class Member on any class claim you may have against us including any right to class arbitration or any consolidation of individual arbitrations.
16.4 You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction.
16.5 Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Services must be filed within one (1) year after such claim of action arose or be forfeited.
16.6 If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
17. Term & Termination
17.1 This Agreement is effective upon your creation of a User Account, as amended by any modifications made pursuant to the Terms. You may discontinue your use of the Markett Platform or participation in the Services at any time, for any reason.
17.2 We may suspend or deactivate your User account or revoke your permission to access the Markett Platform, at any time, for any reason, upon notice to you. We reserve the right to refuse access to the Markett Platform to any User for any reason not prohibited by law. Either party may terminate the Agreement for any reason upon written notice to the other party.
18.1 You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Markett’s business, operations and properties, including User information (“Confidential Information”) disclosed to you by Markett for your own use or for any purpose other than as contemplated herein.
18.2 You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Markett in order to prevent it from falling into the public domain.
18.3 Notwithstanding the above, you shall not have liability to Markett with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Markett or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Markett; becomes known to you, without restriction, from a source other than Markett without breach of this Agreement by you and otherwise not in violation of Markett’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that you provide prompt notice of such court order or requirement to Markett to enable Markett to seek a protective order or otherwise prevent or restrict such disclosure.
19. Notices & Complaints
Except as explicitly stated otherwise, any notices to Markett shall be given by certified mail, postage prepaid and return receipt requested to:
101 North Program Blvd. 11th Floor
Glendale CA 91203
Such notice shall be deemed given three days after the date of mailing. Any notices to you shall be provided to you through the Markett Platform or given to you via the email address you provide to Markett during the registration process, and such notice shall be deemed given immediately upon sending. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Markett during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
To resolve a complaint regarding the Markett Platform, please contact our Support Center at [email protected].
20. General Provisions
20.1 This Agreement shall be governed by the laws of the State of California without regard to choice of law principles. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
20.2 You agree that this Agreement and all incorporated agreements may be automatically assigned by Markett, in our sole discretion in accordance with the “Notices” section of this Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
20.3 A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Markett with respect to the subject matter hereof.