Date of Last Revision: 2010-05-04
Why use the Marketfish cloud-based platform?
PLEASE READ THESE SITE TERMS CAREFULLY. BY ACCESSING OR USING THIS WEB SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS, POLICIES, GUIDELINES AND DISCLOSURES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEB SITE.
These terms and conditions of use (“Site Terms”) govern your access to, and use of, the Marketfish™ Web site located at www.Marketfish.com (the “Site”), owned by Marketfish, Inc. (“Marketfish”), and the information and other online and offline services (the “Services”) provided my Marketfish™. These Site Terms do not alter in any way the terms or conditions of any written agreement you may have with Marketfish™, or its subsidiaries or affiliates, for products, services or otherwise. If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept these Site Terms on such entity’s behalf.
Marketfish™ reserves the right to change or modify any of the terms and conditions contained in these Site Terms or any policy or guideline of the Site, at any time and in its sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the Site. Your continued use of this Site following the posting of its changes or modifications will constitute your acceptance of such changes or modifications. Therefore, you should frequently review these Site Terms and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended terms, you must stop using the Site. You warrant and attest that you are at least eighteen (18) years of age.
All other questions or comments about the Site or its contents should be directed to supportfish [at] marketfish [dot] com.
1. Nature of the Service
Marketfish™ Services permit advertisers to administer email or other direct marketing campaigns using lists obtained from Licensors who have made certain representations and warranties regarding such lists. Marketfish™ is not the creator of those lists. Similarly, Marketfish™ does not create the Creative Content of emails or other marketing messages (collectively referred to as “Creative Content”), which Creative Content is authored by Marketfish’s customers. Creative Content is uploaded by Marketfish™ customers through the use of the Site and transmitted by Marketfish™. Marketfish™ is subject to the protections of Section 230 of the Communications Decency Act and the safe harbor provisions of Section 512 of the Digital Millennium Communications Act. Marketfish™ is not an owner, agent, broker or dealer of the services or products advertised by its customers and makes no endorsements or recommendations regarding the purchase of any particular service or product. Marketfish™ takes no responsibility for the content of its customers’ solicitations except that Marketfish™ does comply with the requirements of the law generally, and specifically provides guidance with regard to claims of copyright violation in Section 4 below.
Marketfish™ administers advertising and email campaigns for third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. Marketfish™ is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
In the event that you receive an email transmitted by Marketfish™ and you wish not to receive any further emails from the sender of that email, you should utilize the instructions included in that email to unsubscribe from further emails from that advertiser.
3. Copyright and Limited License
Unless otherwise indicated, the Site and all content and other materials on the Site or distributed through the Services, including, without limitation, the Marketfish™ logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “Materials”) are the property of Marketfish™, its licensors or its customers and are protected by U.S. and international copyright laws.
You are granted a limited, non-sublicensable license to access and use the Site. Such license is subject to these Site Terms and does not include or authorize: (a) any resale or commercial use of the Site or the Materials therein; (b) the distribution, public performance or public display of any Materials; (c) modifying or otherwise making any derivative uses of the Site or the Materials, or any portion thereof; (d) use of automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Site or Service; (e) downloading (other than page caching) of any portion of the Site, the Materials or any information contained therein, except as expressly permitted; (f) any attempt to gain unauthorized access to Marketfish’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or the Site; or (g) any use of the Site or the Materials other than for their intended purpose. Any use of the Site or the Materials other than as specifically authorized herein, without the prior written permission of Marketfish™, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Site Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
4. DIGITAL MILLENNIUM COPYRIGHT ACT
Marketfish™ responds to notices of alleged copyright infringement. This page describes the procedures related to allegations of infringement. The form of notice specified below is consistent with the form suggested by the United States Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Website, www.copyright.gov).
Marketfish’s response to these notices may include removing or disabling access to allegedly infringing Materials and/or terminating access. If we remove Materials or terminate access in response to such a notice, we will make a good-faith attempt to contact the party that uploaded such Materials so that they may make a counter notification.
To file a notice of infringement with us, please provide a written communication (by fax or regular mail — not by email) that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that infringe your copyrights.
To expedite Marketfish’s ability to process your request, please use the following format (including section numbers):
Identify in sufficient detail the copyrighted work that you believe has been infringed (for example, “The copyrighted work at issue is the text that appears on http://www.______.com/______.html”) or other information sufficient to specify the copyrighted work being infringed (for example, “The copyrighted work at issue is the book titled “My Summer at Camp” by Dawn Early, published by _________, ISBN #___________”).
Identify with specificity the Material that you claim infringes the copyrighted work.
Provide your contact information (email address is preferred).
Provide contact information, if possible, for the owner/administrator of the allegedly infringing Materials (email address is preferred).
Include the following statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.”
Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Sign the notice.
Send the written communication to the following address:
Attn: Marketfish Legal Support, DMCA Complaints
524 2nd Ave – Suite 200
Seattle, WA 98104
OR fax to:
(206) 694-2564, Attn: Marketfish Legal Support, DMCA Complaints
The law permits the publisher of the allegedly infringing Materials or a site administrator of an affected site to make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. When Marketfish™ receives a counter notification, we may reinstate the complained-of Materials.
To file a counter notification, please provide a written communication (by fax or regular mail — not by email) that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that Materials are not infringing the copyrights of others. A sample counter notification may be found at www.chillingeffects.org/dmca/counter512.pdf.
To expedite our ability to process your counter notification, please use the following format (including section numbers):
Identify the specific URLs or other unique identifying information of Materials that Marketfish™ has removed, to which Marketfish™ has disabled access or to which Marketfish™ referred in a communication with you.
Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or King County, WA if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that each search result, message, or other item of content identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown.”
Sign the paper.
Send the written communication to the following address:
Attn: Marketfish Legal Support, DMCA Counter Notification
524 2nd Ave – Suite 200
Seattle, WA 98104
OR fax to:
(206) 694-2564, Attn: Marketfish Legal Support, DMCA Counter Notification
“Marketfish”, the Marketfish™ logo and any other product or service name or slogan displayed on the Site or Service are trademarks of Marketfish™ and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Marketfish™ or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Marketfish” or any other name, trademark or product or service name of Marketfish™ without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Marketfish™ and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and Marketfish™ names or logos displayed on the Site or through the Service are the property of their respective owners.
6. Disclaimers and Acknowledgements Regarding Use of Site Information
THE SITE, THE MATERIALS AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. MARKETFISH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT OR MATERIALS. MARKETFISH DOES NOT REPRESENT OR WARRANT THAT MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SITE, OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. MARKETFISH DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
MARKETFISH IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED ON THE SITE OR ACCESSED THROUGH THE SERVICE. WHILE MARKETFISH ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITE SAFE, MARKETFISH CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S), OR ANY CONTENT OR MATERIALS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND NEUTRALIZE VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS FROM ANY DOWNLOAD.
Marketfish™ reserves the right to change any and all content contained on the Site and any Services offered through the Site at any time without notice.
7. Limitation of Liability
IN NO EVENT SHALL MARKETFISH OR ANY OF ITS CORPORATE AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SITE, THE SERVICES, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE OR SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM MARKETFISH, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MARKETFISH’S RECORDS, PROGRAMS OR SERVICES. THE AGGREGATE LIABILITY OF MARKETFISH, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SITE OR THE SERVICE, SHALL NOT EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO MARKETFISH FOR ACCESS TO OR USE OF THE SITE OR THE SERVICE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “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.”
You and Marketfish™ agree that except as otherwise specifically provided in this paragraph, any controversy or claim arising out of or relating in any way to these Site Terms or the Service Terms or the breach of either, or arising out of or relating to the Site and/or the Services shall be resolved exclusively by arbitration administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules and, in the case of consumer disputes, with the AAA’s Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”), and that judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, to the extent that either party has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark or trade secret rights, then the parties acknowledge that arbitration is not an adequate remedy at law and that without waiving any remedy under these Site Terms or Service Terms, injunctive or other appropriate relief may be sought from any court specified in the next Section (Applicable Law and Venue). The place of arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules. To the fullest extent permitted by applicable law, no arbitration or claim shall be joined to any other arbitration or claim, and no class arbitration proceedings shall be permitted. In no event shall any claim, action or proceeding related in any way to the Site or Service be instituted more than two (2) years after the cause of action arose. In the event that any term of this Section (Arbitration) is held by a court or arbitrator to be in conflict with a mandatory provision of applicable law, such conflicting term shall be modified to comply with such provision and the remainder of this Section shall not be affected.
10. Applicable Law and Venue
These Site Terms the Service Terms and your use of the Site shall be governed by and construed in accordance with the laws of the United States of America and the State of Washington applicable to agreements made and to be entirely performed within the State of Washington (even if your use is outside of the State of Washington), without resort to its conflict of law provisions. You agree that with respect to any disputes or claims not subject to arbitration (as set forth above), any action at law or in equity arising out of or relating to the Site, the Services or these Site Terms or Service Terms shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.
If any of these Site Terms or the Service Terms should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such term shall be enforced only to the extent it is enforceable and the remaining terms shall survive and remain in full force and effect and continue to be binding and enforceable.