Terms & Conditions
Last Updated: January 28, 2019
The following terms and conditions govern your use of www.markate.com, the Markate mobile app, and all services related to the Site and the app (collectively, the “Site”). The operator of the Site is Markate, Inc., an Arizona corporation (“Markate,” “us,” “our,” or “we”). By using the Site or by accepting a trial subscription, you agree to be bound by these Terms of Use (the “Agreement”). If you do not agree to these Terms of Use, please do not use this Site and do not sign up for a trial subscription.
If you have any questions regarding the meaning or application of this Agreement, please direct your questions to:
Markate, Inc.
c/o Sathi Sivaram
7730 E Greenway Rd, #201
Scottsdale, AZ 85260
sathi@markate.com
TERMS OF USE FOR ALL USERS OF THE SITE
1. Who We Are and What We Do.
Markate is a platform and app that provides tools for service providers to run your business. Markate offers customer relations management tools, appointment scheduling tools, estimating tools, invoicing tools, payment processing tools, and marketing tools (collectively the “Tools”).
2. Access to the Site.
This Agreement grants you a limited, revocable, nonexclusive license to access the Site and Tools for your own business use. You may not resell or sub-license your rights to a third party, and this license does not extend to any collection, aggregation, copying, duplication, display or derivative use of the Site or Tools nor any use of data mining or similar data gathering and extraction tools for any purpose unless expressly permitted by Markate. A limited exception is provided to general purpose internet search engines and non-commercial public archives that use such tools to gather information for the sole purpose of displaying hyperlinks to this Site, provided they each do so from a stable IP address or range of IP addresses using an easily identifiable agent.
From time to time the Site and Tools may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Markate may undertake from time to time; or (iii) causes beyond the control of Markate or which are not reasonably foreseeable by Markate. Markate is no responsible for any losses, whether foreseeable or not, that result from the Site being inaccessible or inoperable.
3. Payment to Markate / No Refunds.
After the free trial period, Markate offers monthly and annual subscriptions as set forth in the “Pricing” section of the Site. The Site utilizes third-party vendors for processing payments for those services. You are subject to those third-party vendors’ terms of use when you use their service. Markate is not liable for any actions by any payment processor, or any interaction between you and any third-party vendor.
All sales are final. No portion of any amounts paid to Markate is ever refundable unless we expressly state otherwise.
4. Prices and Renewals.
Markate reserves the right to adjust the cost of any subscription at any time, which increase will go into effect on the next billing cycle after the announcement. At the time of purchase of any subscription, or renewal of any subscription, you will be subject to the current cost of subscription.
5. Subscription Cycle.
Your subscription starts on the date that you sign up for a subscription and submit payment via a valid payment method. Monthly subscriptions will automatically renew on your billing day each month. For example, if you purchase your subscription on April 5, your subscription will automatically renew on May 5 (see “Billing Cycles,” below).
You must provide us with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) to subscribe. We automatically will bill the monthly subscription fee to your Payment Method each month, or each year for an annual subscription, until you cancel your subscription.
6. Billing.
6.1 Recurring Billing. By starting your subscription, you authorize us to charge you a monthly subscription fee at the then current rate.
6.2 Billing Cycle. When you sign up and purchase your Markate Service Professionals subscription, your first subscription cycle will be billed immediately. Your subscription will auto-renew and you will be billed on the same date each month. We reserve the right to change the timing of our billing, in particular, as indicated below, if your Payment Method has not successfully settled. In the event your paying subscription began on a day not contained in a given month, we may bill your Payment Method on a day in the applicable month or such other day as we deem appropriate. For example, if you started your Markate Service Professionals subscription or became a paying member on January 31st, your next payment date is likely to be February 28th, and your Payment Method would be billed on that date. Your renewal date may change due to changes in your Subscription.
6.3 No Refunds. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period.
6.4 Payment Methods. You may edit your Payment Method information by emailing us at support@markate.com. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information or cancel your account (see, “Cancellation” below), you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates.
6.5 You may terminate your monthly subscription at any time by emailing us at support@markate.com. Unless you contact us at support@markate.com to cancel your subscription or if you do not pay for continued service, your subscription to Markate will renew automatically, regardless of whether you are on a monthly plan or a yearly plan. If you cancel within 5 days of a billing date, you will be billed for the next billing cycle and your cancellation will become effective before the billing date that is at least 5 days from the cancellation date. For example, if your next billing date is September 30th, you need to cancel by September 25th in order to avoid being charged for the next month.
7. Licenses and Insurance.
You will not use the Site or Tools to advertise, bid on, or accept any job that you do not have the proper license, bonds and insurance to perform.
8. Indemnification.
You agree to indemnify, defend and hold harmless Markate and its directors, officers, employees, agents and shareholders, and defend any action brought against us or them with respect to any claim, demand, cause of action, debt or liability, including but not limited to reasonable costs and attorneys’ fees, arising out of the use of the Site or Tools, or the violation of any of the provisions of this Agreement, by you or anyone accessing our Site or Tools under your account.
9. Payment Processing.
Markate gives you the option of paying or receiving payments through third-party payment processing companies such as Square and PayPal. When using those third-party payment processing services, you are bound by their applicable terms and legal agreements. Markate is not responsible for the actions or inactions of the third-party payment processing services.
10. Disclaimer of Liability.
This Site, its contents, and the Tools are provided "as is" without warranties of any kind, whether express or implied, including without limitation any warranty as to the accuracy, availability, completeness, reliability, title, currency or content of any information or material provided by or through this site, and the implied warranties of merchantability or fitness for a particular purpose. Your use of the Site is at your sole risk. You assume full responsibility for all costs associated with all necessary servicing or repairs of any equipment you use in connection with your use of the Site, and Markate shall not be liable for any damages of any kind related to your use of the Site or Tools.
IN NO EVENT SHALL Markate, OR ANY DIRECTOR, OFFICER, EMPLOYEE, LICENSOR, DISTRIBUTOR, SUPPLIER, AGENT, RESELLER, OR OPERATOR OF Markate, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) LOST BUSINESS OR LOST PROFITS AS A RESULT OF ANY TOOL NOT OPERATING PROPERLY, (III) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (VI) ANY VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (VII) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
11. Specific Limitations of Tools.
11.1 Markate’s Customer Finder 360 uses a third-party data lead provider which collects information from various sources that may or may not be accurate. While Markate endeavors to use providers with a track record of accurate information, it does not guarantee the accuracy of this data.
11.2 Markate’s Employee App features a time clock for employees to clock in and out. Markate is not responsible for any errors in the time clock or the GPS feature. Markate is not responsible if a user manipulates or interferes with the accuracy of these features. Markate is not responsible for maintaining historical information from this feature and you should download and store such information for your records. It is your responsibility to properly train and instruct your employees on proper use of the Employee App including instructing the employee to turn on the GPS function in order to clock in. While engaged, the GPS feature only captures the employees’ location every five minutes, so there may be up to a five minute lag time when you are checking an employee’s location. Errors, malfunctions, and inoperability of the employee’s device will affect the operability of these features. Markate is not responsible for the functionality of devices used by your employees.
11.3 Markate’s Virtual Estimator uses publicly available information such as Google Maps to determine the size, distance, and location of structures. Markate is not responsible for the accuracy of this information or any information acquired through third-party sources. You agree that the Virtual Estimator should only be used for preliminary estimates and that you should visit the job site to provide accurate estimates.
12. Eligibility and Responsibility of Account.
To use certain features of the Site, you must provide your name, email address, telephone number and zip code. When creating your account, you must provide accurate and complete information. If any of your information changes, you agree to update your registration information as soon as possible. You are solely responsible for the activity that occurs on your account, whether expressly authorized by you or not. You are responsible for keeping your account password secure. You may change your password at any time by updating your account profile. In addition, you agree to immediately notify Markate of any unauthorized use of your password or account or any other breach of security. Markate cannot and will not be liable for any loss or damage arising from your failure to comply with this Section or to secure your account and password, including but not limited to selecting a password that is easily compromised. You are not allowed to use another person’s account without that person’s permission. Unless previously notified otherwise, we will assume that anyone visiting our Site with a correct account and password combination is an authorized user of that account.
By using the services provided by the Site, you represent that you possess the capacity to enter into a binding contract, are 18 years or older, and are not a person barred by any laws from using our Site.
If we have reason to suspect that your registration information is not complete, current, or accurate, or that you have otherwise violated this Agreement, your account will be subject to suspension or termination, in our sole discretion, and you may be barred from using the Site.
13. Governing Law and Jurisdiction.
This Agreement is entered into in the State of Arizona and is governed by the laws of the State of Arizona and by the federal laws of the United States, without reference to conflict of laws principles. You agree to the exclusive jurisdiction of the state and federal courts in Arizona to adjudicate any dispute arising out of or relating to this Agreement or your use of our Site. You also expressly consent to the personal jurisdiction of the state and federal courts in Arizona for any such action.
14. General Provisions.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be stricken from this Agreement and the remaining provisions shall be enforced. Our failure to act with respect to any breach of this Agreement by you is not a waiver of our right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or your rights hereunder, and any attempt to do so is void. Markate shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond its control. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof and supersedes any prior understandings or agreements with respect to such subject matter.
15. No Agency/ No Third Party Beneficiary
There is no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship intended or created by this Agreement. Nothing in this Agreement is intended to benefit any third party.
16. Termination / Cancellation.
Markate may terminate your use of the Site, including without limitation, your account with the Site, at any time, in our sole discretion. Upon any such termination, your right to use the Site will immediately cease. You agree that any termination of your access to or use of the Site may be effected without prior notice.
17. Links to Other Sites.
For your convenience, Markate may provide links on the Site to websites that are not operated by Markate, including links to government websites, social media or websites that sell products. We do not control such web sites and are not responsible for their contents, products or operation. These links do not mean that Markate endorses, approves or sponsors the linked sites or any information, products or services contained on those sites. Markate is not liable for any damage that might result from your use of the information, products or services obtained. Your use of such websites is entirely at your own risk.
18. Modification of Terms of Use/ Modification of Website.
We reserve the right to change this Agreement at any time. We will announce any changes by posting a revised draft of this Agreement on the Site. You can determine when this Agreement was last revised by referring to the “Last Updated” information contained herein. If a change is, in our sole discretion, material, we will notify you of the change if you are an active subscriber. By continuing to use the Site following such changes, you will be deemed to have agreed to such changes. You agree to review this Agreement periodically to be aware of any such changes. Your use of certain services on the Site may be governed by additional rules, which will be available on the Site. By using any service you acknowledge that you have reviewed all rules for the service in question and agree to be bound by them.
We also reserve the right, at any time, to: change or discontinue any content or feature of the Site or any services or products made available through the Site without notice; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all users of the Site. You agree that we will not be liable for any modification, suspension or discontinuance of the Site or of any service, content, feature or product offered through the Site. Your continued use of the Site after such changes will indicate your acceptance of such changes.
19. Use of Tools.
You warrant and agree that you will not use any Tools for any unlawful purpose. You agree that all communications you send using the Tools will comply with all state and federal laws, including the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act. The Tools include Text Blast and Ringless Voicemail, both of which may only be used in compliance with the TCPA. The TCPA restricts the making of telemarketing calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages. The TCPA rules require you to obtain prior express written consent from consumers before using the Tools, even if you have an established business relationship. The TCPA also requires you to discontinue sending texts or Ringless Voicemails to consumers who opt-out or ask to be removed. The TCPA also requires you to not send automated messages or voice mails to people on the national Do-Not-Call registry.
You will only use the Tools to send communications to your existing customers, and not to solicit new customers. You warrant that you have the recipient’s permission to send any communications that you send using any Tool. When using the Collage Maker, you will only upload photographs that were taken by an employee of your company or that you have proper permission to use.
20. Site Conduct.
When using the Site, including the feature to create your own online store, you may not post or transmit any material or content on or through the Site:
(1.a) that is false;
(1.b) that violates or infringes in any way upon the rights of others;
(1.c) that discloses private personally identifying information of another person that could lead to identity theft;
(1.d) that discloses confidential, proprietary information or trade secrets;
(1.e) that solicits, encourages, or promotes the use of illegal substances or activities;
(1.f) which is unlawful, threatening, abusive, harassing, defamatory, libelous, derogatory, constitutes invasion of privacy or publicity rights, is fraudulent or tortuous, vulgar, obscene, pornographic, bigoted or hateful, intimidating, profane, scandalous, pornographic, indecent or otherwise objectionable;
(1.g) that is protected by the copyright, trademark, trade secret or any other proprietary rights of anyone other than you;
(1.h) that expresses or implies that any statements you make are endorsed by us, without our prior written consent; or
(1.i) that gives rise to civil or criminal liability, encourages conduct that constitutes a criminal offense or otherwise violates any local, state, or federal law.
When using the Site, you may not post or transmit on or through the Site:
(1.j) software or other materials that contain viruses or other programs harmful or disruptive to the Site or other websites;
(1.k) chain letters; mass mailings; spam mail;
(1.l) any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents.
You may not:
(1.m) engage in any activity on the Site that restricts or inhibits any other user from using or enjoying the Site such as “hacking,” “hijacking,” “cracking,” “spoofing,” or defacing any portion of the Site;
(1.n) harvest or collect information about Site visitors or Registered Users without their express consent;
(1.o) create a database by systematically downloading and storing Site content;
(1.p) frame or mirror any part of the Site without our prior written consent;
(1.q) interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available; or violate any requirements, procedures, policies or regulations of such networks.
21. User Comments, Feedback and other Submissions.
By submitting, disclosing, posting, transmitting or uploading any messages or data to the Site, you warrant and represent that you are the owner of those communications or that you have all rights necessary to submit, disclose, post, upload, transmit and otherwise use any such communications for your intended purpose. By posting information or content to the Site, you grant, and you represent and warrant that you have the right to grant, and that you do grant to Markate an irrevocable, perpetual, fully-paid, worldwide non-exclusive license to use, copy, perform, display and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing. If you do not agree to this license, do not post on the Site.
We may not be able to review all materials posted to the Site by users and we are not responsible for any materials posted by users. We reserve the right at all times to disclose any information necessary to satisfy any law, regulation, government request or court order to edit, refuse to post or to remove information or materials in whole or in part, that are the subject of a complaint or a report of abuse or that in our sole discretion are objectionable or in violation of this Agreement or as otherwise required by law or court order.
22. Copyrights, Trademarks and other Intellectual Property Rights.
All materials, including images, illustrations, designs, icons, photographs, text, software, graphics, videos, music and sound that are part of the Site are protected by U.S. and state copyright laws, international treaties and other intellectual property laws. All copyrighted or trademarked material or other intellectual property used on the Site is owned by us or others who have given us permission to use their protected intellectual property. The Site as a whole is also protected by copyright law and is owned by us.
The materials on the Site, and the Site as a whole, are intended solely for your personal, noncommercial use. You may not reproduce, publish, transmit, distribute, display, modify, create derivative works of, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the intellectual property on the Site, the Site as a whole, or any related software without the prior written permission of Markate or the owner of that intellectual property.
23. Third-Party Content.
The Site may contain content supplied by parties other than Markate. Any advertisements, solicitations, opinions, advice, judgments, statements or other information or content expressed or made available by such third parties, are those of the respective author(s) and not of Markate. Markate makes no guarantees as to the accuracy, completeness or usefulness of any content or service provided, nor its merchantability or fitness for a particular purpose.
Markate is not responsible for the actions or inactions of any users of the Site, including the actions or inactions of any service professional listed on the Site.
24. Digital Millennium Copyright Act Compliance Notice.
If you believe any of the content on our Site infringes your copyrights, you may send us a notice of alleged infringement that complies with the Digital Millennium Copyright Act.
Markate will process notices of alleged infringement that it receives and will take appropriate actions as required by the Digital Millennium Copyright Act (the “DMCA”) and other applicable intellectual property laws. Pursuant to the DMCA, notifications of claimed copyright infringement should be sent to Markate’s designated agent:
Maria Crimi Speth
3200 N. Central Ave, Suite 3200
Phoenix, Arizona 85012
mcs@jaburgwilk.com
To be effective, the notification must be in writing and must comply with the DMCA, 17 U.S.C. §512(c)(3). Notices which do not comply with the law will be disregarded.
25. Text and Email Messages
By providing us with your email address or your cellular telephone number, you expressly consent to receiving communications using that contact information from Markate. You acknowledge that your mobile provider’s standard rates for sending and receiving text messages will apply. If you wish to opt-out of receiving text or email messages, email us at support@markate.com.
26. Reviews
Markate may permit Customers to post reviews on the Site. Markate reserves the rights, in its sole discretion, to post or reject any review. Markate is not responsible for reviews that are posted and is not responsible for reviews that are not posted. Markate also reserves the right to remove a review that has been posted.
27. No Customization of Tools.
The Tools are not customized and may not be best suited for your industry or business needs. You should use your own discretion as to whether to use the tools provided or use your own processes. Markate’s “Disclaimer of Liability” applies to your use of these Tools.
28. Updates to Terms of Use.
Terms of Use updated as of January 28, 2019.
