Welcome to the website of Malartu, Inc.
Last Modified: August 12th, 2018
About the Service
Subject to these Terms, we hereby grant you a limited, revocable, personal, non-sublicenseable, non-transferable, and non-exclusive license to access and use this Service and the material herein for your limited and personal, access and use. Unless explicitly stated otherwise, any new features we provide that add to or enhance the current Service shall also constitute “Service” and shall be subject to these Terms.
Eligibility to Use the Service
You must be at least 18 years old and a resident of the United States in order to register for and use the Service. By using the Service, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the eligibility requirements herein. If you register and use the Service on behalf of a Client, you must have the proper authority to register, use the Service, and bind the entity for which you are using the Service. If you do not meet these requirements or, if for any reason, you do not agree with all of the terms and conditions contained in these Terms, you must stop using the Service immediately.
Registering for the Service and Creating Your User Account
It is Your Responsibility to Protect Your Account and User Information
Upon registration, you will create a personalized account that includes a unique username and password (“User Information”). It is your responsibility to protect your personal data and maintain the confidentiality of your User Information. You agree to notify us immediately if you suspect or become aware of any unauthorized use or breach of your account or password. You also agree not to allow any unauthorized person to access the Service using your User Information. We have the right to disable any username, password, or other identifier at any time in our sole discretion, for any or no reason, including if we believe you have violated any provision of these Terms.
We will not be liable for any loss that you may incur as a result of someone else using your User Information, either with or without your knowledge. To the extent allowable by law, you shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for your failure to safeguard your User Information and/or promptly notify us about unauthorized use of your account or breach of your account information or password.
We Do Not Guarantee Access to the Service at Any Given Time
We reserve the right to withdraw or amend the Service, and any feature or material we provide as part of the Service, in our sole discretion and without notice. In addition, the Service may automatically download and install upgrades and updates. We will not be liable if all or any part of the Service is unavailable for any reason at any time.
We Reserve the Right to Restrict Access to the Service
We reserve the right to refuse the use of or access to the Service to anyone for any reason at any time. From time to time, we may restrict access to the Service, or any portion thereof to Users, including registered Users. We may, in our sole discretion, terminate your right to use the Service with or without cause at any time, and may prevent your future use of the Service. You may terminate this Agreement by simply discontinuing use of the Service.
In the event of any termination of this Agreement, we may restrict your access to the Service and any content or material that you may have used in connection with the Service. The restriction of your use of the Service shall survive such termination, and you agree to be bound by those terms. We reserve all rights that are not expressly granted to you under these Terms.
Our Intellectual Property Rights and License to Use Client Data
You acknowledge and agree that the Company and its licensors retain ownership of all intellectual property rights of any kind related to the Company and the Service, including all developments, inventions, technology, materials, and other work product made or conceived or actually or constructively used by or on behalf of Malartu in the course of performing the Service, and all applicable copyrights, trademarks, and other proprietary rights associated therewith. Other product and company names that are mentioned on the Service may be trademarks of their respective owners.
Clients will be required to pay certain fees, inclusive of fees that are required to be paid with regards to the use of the Malartu API, (the “Fee” or “Fees”) in order to use the Service. The Fees will be set by the Company, in its sole and complete discretion, and shall be as set forth on the Company’s pricing page located at our pricing page, which may be amended by the Company from time to time. Should the Company elect to change the structure or amount of Fees to be charged for the Service, we will make reasonable efforts to provide notice to existing Clients of any Fee changes that affect existing Users. Client agrees to pay all applicable Fees set forth on the pricing page, and as set forth by these Terms. You acknowledge and agree that if you fail to pay the Fees when due, for any reason, you may be denied access to the Service.
Malartu may now, or in the future, integrate with other third party services in order to improve the Service. Any User who uses any other third party service, program, or application in connection with the Service, may be subject to fees charged by the third party service, program, or application. Malartu does not set or collect fees charged by any third party service, program, or application that may be integrated or used in connection with the Service, and shall not be responsible for any claims, expenses, or otherwise associated with fees charged by any such third party service, program, or application.
You May Not Use the Service for Any Improper Purpose
In addition to complying with other provisions of these Terms, you agree that you will not:
Use the Service for any unlawful purpose or for the promotion of illegal activities;
Attempt to, or harass, abuse, or harm another person or group;
Provide others with access to or use of your User Information or account, or access or use the User Information or account of any other user without permission;
Provide false or inaccurate information when registering for an account;
Use the Service for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
Use the Service to obtain, transmit, or otherwise improperly handle confidential or proprietary information of any third party;
Use the Service in any manner which may infringe upon, misappropriate, or otherwise violate the intellectual property rights or other rights of any third party, including but not limited to, trademark, copyright, and/or other privacy rights;
Make any automated use of the Service, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on the Service;
Use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without our prior written consent;
Copy, adapt, modify, create derivative works of, distribute, sell, or lease any part of the Service or materials we provide as part of the Service;
Reverse engineer or attempt to extract the source code of that software, unless applicable laws prohibit these restrictions or you have our written permission to do so;
Use any software, technology, or device to scrape, spider, or crawl the Service or harvest or manipulate data;
Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
Bypass any measures we take to restrict access to the Service; or
Otherwise interfere or attempt to interfere with the proper functioning of the Service;
Any use of the Service not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. We reserve all rights that are not expressly granted to you under these Terms
Client Representations Regarding Client Data
Client represents and warrants that it:
Owns, or possesses all legal right to provide, use, and process all Client Data, as contemplated by this Agreement;
Has obtained all necessary consents for the disclosure and use of the Client Data under this Agreement, including for use of Client Data by the Company, and
Has provided all notices to individual persons represented in the Client Data, if any, and to the appropriate officers or directors of entities represented in the Client Data as required by law or otherwise for the performance by the Parties of their obligations under this Agreement, and for the Company’s use of the Client Data both during and after termination of this Agreement.
Client acknowledges and agrees that Client is solely responsible for the accuracy, quality, integrity, reliability, appropriateness, and intellectual property ownership or right of all Client Data. The Company is under no obligation to review Client Data for accuracy, acceptability or potential liability.
Client’s External Platform Data
The primary functionality of the Service allows Clients to aggregate and analyze data from various third-party External Platforms for which Client has one or more accounts (including, for example, Salesforce, Mailchimp, or QuickBooks). Client acknowledges and agrees that (a) some third parties may not allow the Service to access certain information from such External Platforms, and (b) third parties responsible for maintaining any External Platform may make changes to their websites or services that may affect the performance of the Service.
Client acknowledges and agrees that Malartu has no control over any of the External Platforms, and will have no liability whatsoever for the External Platforms or any actions or inactions on the part of such third parties resulting in Client’s inability to use the Service to access or obtain data from any of its accounts External Platforms. Client further acknowledges and agrees that Malartu has no control over the reliability, accuracy, or completeness of any information or data submitted or obtained from an External Platform for use in connection with the Service.
In the event that Client or any User on Client’s behalf shares or provides access to Client Data, including any External Platform Data or other information stored on the Service, with any third party who is not an authorized representative or otherwise permitted to access such Client Data or information, or instructs Malartu to provide access or release such Client Data or information with such third party, Client acknowledges and agrees that the Company (and its officers, directors, agents, subsidiaries, joint ventures and employees) will not be liable or responsible for any disputes, claims, losses, damages, or liabilities that are in any way related to or arising from such third-party obtaining or gaining access to such information.
Links to Third Party Websites, Applications, Software, or Content
As part of the Service, we may provide you with convenient links to third party website(s), as well as content or items belonging to or originating from third parties (collectively, “Third Party Content”). These links are provided as a courtesy to Users. We have no control over Third Party Content or the promotions, materials, information, goods or services advertised by or available from Third Party Content. Such Third Party Content is not investigated, monitored or checked for accuracy, appropriateness, or completeness by the Company. We are not responsible for any Third Party Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Content. Our inclusion of, linking to, or permitting the use or installation of any Third Party Content does not imply approval or endorsement by Malartu. If you decide to leave the Site and access or use any Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any third party site or application to which you navigate from the Site.
We May Amend the Service and These Terms
We may update the content, materials, and features of the Service from time to time. Please be advised that any content contained on the Service may not necessarily be complete or up-to-date. Any of the material on the Service may be out of date at any given time, and we are under no obligation to update such material.
We may revise and update these Terms from time to time in our sole discretion. All changes become effectively immediately when we post them. It is your responsibility to check the Site from time to time so you are aware of any changes. If you continue to use the Service after we post revised Terms, you signify your agreement to such revised Terms. However, we will notify you of material changes to the Terms by posting a notice on the Site and sending an email to the email address you provided to us upon registration. For this additional reason, you should keep your contact and profile information current.
Email is Not Sufficient to Provide Legal Notice to the Company
Communications made through the Service’s e-mail and messaging system, if and when available, will not constitute legal notice to the Company or any of its officers, employees, agents or representatives in any situation where notice to the Company is required by contract or any law or regulation.
You Consent to Electronic Communications
You Assume Any Risk of Using the Service
The information presented on or through the Service is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
DISPUTES WILL BE RESOLVED THROUGH ARBITRATION
All claims and disputes arising from your use of the Service or these Terms will be resolved by binding arbitration, rather than in court. Arbitration will be conducted by a neutral arbitrator, in accordance with the rules of the American Arbitration Association (“AAA”). Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at Malartu’s election. The arbitrator will decide the jurisdiction and the rights and liabilities, if any, of you and Malartu. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms. The arbitrator will issue a written award and statement of a decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Both parties agree that any dispute resolution proceedings will be conducted on an individual basis, and not as a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, each party waives any right to a jury trial. Both parties also agree that either party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
This provision shall survive the termination of this Agreement or any other agreement.
The Service is Provided “As-Is” and Without Any Warranty
THE SERVICE, AND ANY CONTENT OR INFORMATION THEREIN, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS REGARDING THE SERVICE OR THE USE OR PERFORMANCE OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICE (INCLUDING ANY CONTENT AND INFORMATION THEREIN) INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
You Agree the Company Will Not Be Liable
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF ANY CLIENT DATA AND/OR EXTERNAL PLATFORM DATA; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH THE COMPANY OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.
If you have a dispute with one or more users, or a vendor or administrator of an External Platform, product or service that you access or use in connection with the Service, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §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.”
Export Restrictions and Indemnification
You may not remove or export from the United States or allow the export or re-export of the Service, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Service and all related data and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
You hereby agree to indemnify and hold harmless Malartu against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Service. Although Malartu has no obligation to monitor any Client or User’s use of the Service, Malartu may do so, and may prohibit any use of the Service that it believes may be (or alleged to be) in violation of the foregoing.
Governing Law and Jurisdiction
All matters relating to the Service, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of North Carolina or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, these Terms or the Service shall be instituted exclusively in the federal courts of the United States or the courts of the State of North Carolina in each case located in the City of Raleigh and County of Wake. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Waiver and Severability
No waiver of by the Company of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.
Limitation on Time to File Claims