- ACCEPTANCE OF TERMS
- FURTHER SERVICE UNDERSTANDINGS
You understand and agree that the Service is provided AS-IS and that OYM assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. OYM acknowledges that Content on this Site is based upon information obtained by OYM from from sources believed by OYM to be reliable. The accuracy, completeness, adequacy or currency of the Content is not warranted or guaranteed. You acknowledge that Content may contain some non-conformities, defects, errors and/or omissions. Your use of Content on this Site or materials linked from this Site is at your own risk.
- SERVICES PROVIDED
OYM is a unique team of digital marketing experts who specialize in creating and managing a robust marketing strategy for the local service professional industry (“Services”). Our services include, but are not limited to, architecting integrated digital marketing strategies, managing paid advertising campaigns, building your authority and reputation online, implementing and managing marketing funnel campaigns, building dashboards with core metrics and KPIs, and training your team to deliver your brand. Fuseomatic is an extension of OYM, creating apps, integrations and add-ons for Infusionsoft users. Apps include, but are not limited to, Fortapay, BridgeBuddy, AffiliateDash, 3dcartConnect, and CheckMeOut.
- YOUR REGISTRATION OBLIGATIONS
- CONTENT ON THE SERVICES
5.1. In General. Any opinions expressed by the contributors, authors and moderators who post content to OYM are the personal opinions of the authors, not of OYM, whether or not the authors are employees or contractors of OYM. The Content (as defined below) is provided for informational and entertainment purposes only and is not meant to be an endorsement or representation by OYM or any other party.
5.2. Ownership. The Content (as defined below) on the Services is intended for your personal, noncommercial use only. Commercial use of any of the Content or Services is strictly prohibited. The Services and all materials published and/or distributed on or through the Services (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips) (collectively, the “Content”) are protected by copyright pursuant to U.S. and international copyright laws, and are owned or controlled by OYM or the party credited as the provider of the Content. Except as set forth in Sections 5.3 and 6.4 of this Agreement, you may not modify, publish, transmit, adapt, participate in the transfer or sale of, reproduce, create new works from, distribute, perform, display, or in any way exploit, any of the Content in whole or in part, without the express written consent of OYM or the copyright owner identified in the copyright notice in the Content. You agree not to change or delete any proprietary notices that appear in the Content. You may not use any OYM logo or proprietary graphic or trademark without OYM’s express written permission. You shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Services. As between the parties, title, ownership rights, and intellectual property rights in the Content and Services, and any copies or portions thereof, shall remain in OYM and/or its content providers or licensors. OYM reserves any rights not expressly granted in this Agreement.
5.3. Limited License. Subject to your strict compliance with this Agreement, OYM grants you a limited, revocable, non-transferable, non-assignable and non-exclusive license to access, download (temporary storage only), display, view, use, play and/or print the Content (excluding, for purposes of this Section 5.3, Content accessed through OYM and further excluding source and object code in raw form or otherwise, other than as made available to access and use via a standard web browser to enable display) on a personal computer, mobile phone or other wireless device, or other Internet enabled device, for your personal noncommercial use only, subject to the restrictions set forth in this Agreement. The foregoing limited license (A) does not give you any ownership of, or any other intellectual property interest in, any Content, and (B) may be immediately suspended or terminated for any reason, in OYM’s sole discretion, and without advance notice or liability.
- USER-GENERATED CONTENT
6.1. Prohibited Actions. You are solely responsible for your communications on and your use of the Services. You agree not to do any of the following: (A) post or transmit any libelous, defamatory, indecent, obscene, fraudulent, deceptive, abusive or pornographic message, data, image, content or program; (B) post or transmit any message, data, image, content or program that would violate any property rights of others; (C) use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (D) upload or download files that contain software, marks, logos, data, images, content or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law, unless you own or control the rights to such files or material or have received all necessary consents; (E) upload files that contain a virus or corrupted data; (F) falsify the source or origin of software or other material contained in a file that you upload to the Services; (G) falsely purport to be an employee or agent of OYM; (H) act, in your use of the Services, in a manner that is contrary to applicable law or regulation; or (I) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Services or the Content.
6.2. OYM’s Exclusive Right to Manage the User Submissions. You acknowledge that any materials and other information (including, without limitation, ideas contained therein for new or improved products or services) you post, upload, or submit to the Services, including but not limited to comments, forum messages, reviews, text, video, audio, photographs, computer code and applications (each, a “User Submission”) may be edited, removed, deleted, modified, published, transmitted, and displayed by OYM in its sole discretion and without your permission, and you waive any rights you may have (including any moral rights) in preventing the material from being altered or changed in a manner not agreeable to you. You expressly agree that we may remove, disable or restrict access to or the availability of any User Submissions from the Services at any time, for any reason or for no reason at all. OYM reserves the right to treat User Submissions as content stored at the direction of users for which OYM will not exercise control except to block or remove content that comes to OYM’s attention and is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal, libelous, defamatory, fraudulent, deceptive, misleading or otherwise objectionable to OYM, or to enforce the rights of third parties or the content restrictions set forth below in this Agreement when notice of their violation comes to OYM’s attention. However, OYM shall not be responsible for controlling or editing any Content, and OYM has no contractual obligation to remove inappropriate or unlawful Content. Under no circumstances will we be held liable for removing, disabling or restricting access to or the availability of Content.
6.3. License to OYM of Your User Submissions. You hereby grant to OYM, and you agree to grant to OYM, a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, unconditional, unlimited, worldwide and cost-free license to use, copy, record, disclose, sell, re-sell, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, broadcast, publicly perform, display or otherwise exploit in any manner whatsoever, all or any portion of your User Submissions (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or technology whether by any means and in any media now known or hereafter developed and to sublicense such rights through multiple tiers of sublicenses, and to advertise, market and promote the same. In order to further effect the rights and license that you grant to OYM to your User Submissions, you also hereby grant to OYM, and agree to grant to OYM, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, image, photograph, and likeness that you provide in connection with any User Submission, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Submissions, even if your User Submissions are altered or changed in a manner not agreeable to you. You agree that you shall have no recourse against OYM for any alleged or actual infringement or misappropriation of any proprietary right in your User Submissions. You further acknowledge and agree that no compensation will be paid with respect to the use of your User Submissions or any of the rights granted in this Section 2.3.
6.4. Representations and Warranties Related to Your User Submissions. Each time you submit a User Submission, you represent and warrant that, as to that User Submission, (A) you are the sole author and owner of the intellectual property and other rights to the User Submission, or you have a lawful right to submit the User Submission and grant OYM the rights to it that you are granting by this Agreement, all without any OYM obligation to obtain consent of any third party and without creating any obligation or liability of OYM; (B) the User Submission is accurate; (C) the User Submission does not and, as to OYM’s permitted uses and exploitation set forth in this Agreement, will not infringe any intellectual property or other right of any third party; (D) the User Submission will not violate this Agreement, or cause injury or harm to any person; and (E) the User Submission complies with all applicable laws and regulations.
6.5. Responsibility of Users. You are entirely responsible for the content of, and any harm resulting from, your User Submissions. OYM does not assume any responsibility or liability for any User Submissions posted on the Services or any website linked to the Services and makes no express or implied warranty or guarantee about the accuracy, copyright compliance, legality, or any other aspect of the User Submissions.
6.6. Non-Confidentiality of Your User Submissions. The Services are available to the public, and your User Submissions, along with information concerning your identity that you provide to OYM (including your name, image, employer and location), may be publicly available. Do not post information you consider confidential to the Services. In addition, you agree that OYM may reveal your identity and whatever information we know about you to any law enforcement agent or official in the event of legal action or a legal request arising from any User Submission made by you.
6.7. Unsolicited Email, Spamming & Spoofing. You may not use the Services to transmit unsolicited email. You may not send unsolicited email to the Services or to anyone whose email address includes a domain name used on the Services. You may not use any domain name on our Services as a pseudonymous return email address for any communications, which you transmit from another location or through another service. You may not pretend to be someone else – or spoof their identity – when using the Services.
- REGISTRATION AND SECURITY
You agree, represent, warrant, and guarantee that all Personal Information provided by you is true, accurate, complete, up-to-date, and solely yours. You may not impersonate, imitate, or pretend to be somebody else when registering. When you login, you will be asked to choose a password. You are responsible for safeguarding and maintaining the confidentiality of your password and you agree not to disclose your password to any third party. You will be solely responsible for any activities or actions taken under your account, whether or not you have authorized such activities or actions. You must notify us immediately if you know or suspect that any unauthorized person is using your password or your account (for example, your password has been lost or stolen, someone has attempted to use the Services through your account without your consent or your account has been accessed without your permission). We strongly recommend that you do not use the Services or access Content (defined below) on public computers. We also recommend that you do not store your password through your web browser or other software.
You are solely responsible for all access or visitation to, usage of, or activity on, your account/profile including, but not limited to, use of the account/profile by any person who uses your Personal Information, with or without authorization, or who has access to any computer, mobile, or other device on which your account/profile resides or is accessible. You acknowledge and agree that we may, and you specifically authorize us to, process all transactions, including without limitation purchases and/or registration for products and/or Services, including, without limitation, Content provided by us.
You agree to pay all fees and charges, including applicable taxes and surcharges, incurred through your activity on or through the Site(s) and/or through your account/profile (such fees, charges, taxes, and surcharges shall collectively be referred to as “Fees”). Unless otherwise specified, all Fees will be quoted and charged in U.S. dollars. You must notify us about any billing problems or discrepancy within thirty (30) days after they first appear on your statement; otherwise, you waive any right to challenge or dispute such problem or discrepancy.
- FEES, PAYMENT TERMS, ACCOUNT CANCELLATION
8.1. OYM charges a subscription fee (“Fees”) for the use of some Services. By registering for such Services, you agree to pay OYM the Fees applicable to the account level chosen. Unless otherwise stated, all Fees are in U.S. Dollars. OYM expressly reserves the right to change the Fees at any time, upon notice to you. The Fees do not include any payment for telecommunications and computer hardware, software, telecommunications access charges, lines or connections or other equipment and services required to access OYM Services, which shall be your sole responsibility. All Fees will be billed to your credit card at the current international currency conversion rate. You are responsible for and shall pay OYM all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, “Taxes”) for the use of OYM Services, whether imposed now or hereinafter by any governmental entity. For any upgrade or downgrade in plan level that you elect, your credit card will automatically be charged the new rate on your next billing cycle.
8.2. All Fees are paid in advance and are non-refundable. There will be no refunds or credits for partial months of service, upgrades/downgrades, or for months when you did not use OYM Services. We reserve the right to deactivate your access to OYM Services if you fail to pay applicable fees. You must provide current, complete and accurate billing information. You must promptly update all billing information to keep your account current, complete and accurate (such as by furnishing a new billing address, card number or expiration date), and you must promptly notify OYM if your credit card is cancelled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). You authorize us to obtain updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you as a replacement. You agree to promptly pay OYM in the event of any refusal of your credit card issuer to pay any amount to OYM for any reason. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In the event you fail to pay any amount when due, OYM may immediately suspend or terminate this Agreement and your access to OYM Services.
8.3. Your subscription will renew automatically, unless we terminate it or you terminate your subscription by providing written or electronic notice through one of the following methods:
Email: service[at] onyourmarketing [dot] com
195 Timber Lakes Est
Heber City UT 84032
You must cancel your subscription before it renews in order to avoid billing of subscription fees for the renewal term to your credit card. To ensure cancellation is effective, please watch for a cancellation confirmation notice via email.
8.4. Payment must be made by a major credit card accepted by OYM (currently, VISA, MasterCard, AMEX, Discover). Cash or check will not be accepted unless prior authorization by OYM. The billing period ends each month on the monthly anniversary of your activation date (“Billing Date”). If, however, the Billing Date would be the 29th, 30th or 31st day of a month, and there is no such date for the specific month, the Billing Date will be the first day of the following month. If OYM does not receive payment from the credit card issuer or its agent, you agree to pay all amounts due upon demand by OYM. Your card issuer agreement governs your use of your designated card in connection with the Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. YOU, AND NOT OYM, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.
8.5. If OYM does not receive the full amount of your Service account balance within thirty (30) days of the Billing Date, a late payment charge of one and one-half percent (1.5%) per month (or the highest amount allowed by law, whichever is lower) may be added to your bill and immediately become due and payable. Unless you notify OYM of any discrepancies within sixty (60) days after they first appear on your account statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release OYM from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to OYM within sixty (60) days of its first appearance on an invoice or credit card statement.
8.6. You agree to pay OYM reasonable attorney’s fees and costs incurred by OYM to collect any past due amounts. Your account may be deactivated without further notice if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your Service account.
8.7. You are responsible for paying any governmental taxes imposed on your use of the Service, including, but not limited to, sales, use or value-added taxes. You are solely responsible for arranging payment for any and all additional or premium charges for your use of any third party services via the Service.
8.8. Cancelling 3rd party services does not automatically cancel your service with us. You agree that you will continue to be billed on a regular basis until you cancel your service with us.
8.9. You agree that if you dispute a charge to your credit card, you must FIRST ATTEMPT TO RESOLVE THE DISPUTE WITH US DIRECTLY by providing written or electronic notice through one of the following methods:
Email: service[at] onyourmarketing [dot] com
195 Timber Lakes Est
Heber City UT 84032
Please provide disputed amount(s), date(s) of disputed charge(s), and contact information, including your email address. Please allow three (3) business days, Monday-Friday, excluding holidays, for us to respond to your dispute. You will receive an email confirmation from us that we are working to resolve the dispute. It is your responsibility to keep us informed of your updated email address. If you do not receive an email confirmation from us, this may be proof that you have not attempted to resolve the dispute with us first. If you choose to file a dispute with your bank or credit card company before first attempting to resolve the dispute with us, you may be responsible for any fees our merchant account provider charges us to settle the dispute. You agree to pay these fees, up to $40 per disputed transaction.
8.10. OYM RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR THE WEBSITE CONTENT, OR SERVICES, EFFECTIVE THIRTY (30) DAYS AFTER AN ONLINE POSTING AT http://www.onyourmarketing.com. OYM MAY ADDITIONALLY PROVIDE NOTICE OF BILLING CHANGES VIA EMAIL. If any such change is unacceptable to you, you may terminate your subscription to the Service. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
- INFORMATION PROVIDED BY YOU AND PRIVACY
By creating an account, you expressly consent to the use of: (a) electronic means to complete these Terms and to provide you with any notices given pursuant to these Terms; and (b) electronic records to store information related to these Terms or your use of the Services. We cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- USER CONDUCT
You agree not to use the Service to: (a) upload, post, email, transmit or otherwise make available any Information that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, an OYM official, forum leader, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Information transmitted through the Service; (e) upload, post, email, transmit or otherwise make available any Information that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload, post, email, transmit or otherwise make available any Information that infringes any patent, trademark, trade secret, copyright or other proprietary rights (Rights) of any party;
(g) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except in those areas that are designated for such purpose and within the scope of such designation; (h) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; (k) stalk or otherwise harass another; (l) use the Services, Site, or Content in any way that competes with us; or
(m) encourage or instruct any other person or entity to do any of the foregoing
CAUTION: ANY ATTEMPT TO DO ANY OF THE FOREGOING PROHIBITED ACTS, OR TO OTHERWISE UNDERMINE THE OPERATION OF THE SERVICE OR SITE(S), MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAW. SHOULD SUCH AN ATTEMPT BE MADE, WE RESERVE THE RIGHT, IN ADDITION TO OUR OTHER REMEDIES, TO SEEK DAMAGES (INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES) FROM ANY SUCH INDIVIDUAL OR ENTITY TO THE FULLEST EXTENT PERMITTED BY LAW.
You acknowledge that OYM does not pre-screen any Content working in coordination with the Service, but that OYM and its designees shall have the right (but not the obligation) in their sole discretion to rescind use of the Service. You acknowledge and agree that OYM may preserve Information and may also disclose Information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Information violates the rights of third-parties; or (d) protect the rights, property, or personal safety of OYM, its users and/or the public. You understand that the technical processing and transmission of the Service, including your Information, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
- LINKS TO THIRD-PARTY WEBSITES
- COPYRIGHTS AND USE OF SITE CONTENT
The copyright in all materials provided on this Site is held by OYM or by the original creator of the material. Except as stated herein, none of the materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of OYM or the copyright owner. Permission is granted to download one copy of the materials on this Site on a single computer for your personal or internal business use only provided that you do not modify the materials and that you retain all copyright and other proprietary notices contained in the materials. This permission terminates immediately if you breach this Agreement. You may not “mirror” any material contained on this Site without OYM’s express written permission. Any unauthorized use of the materials contained on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity and/or communications regulations and statutes. All content and functionality on this Site, including text, graphics, logos, icons, and images and the selection and arrangement thereof, are the exclusive property of OYM or its licensors and is protected by U.S. and international copyright laws. All rights not expressly granted are reserved.
© 2013-2017 On Your Marketing, LLC
195 Timber Lakes Est.
Heber City UT 84032
Telephone: + 1 435 200 3407
All rights reserved.
The trademarks, service marks and logos (the “Trademarks”) used and displayed on this Site are registered and unregistered Trademarks of OYM. Other trademarks, service marks and trade names may be owned by others. Nothing on this Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark or any other OYM intellectual property displayed on this Site. OYM aggressively enforces its intellectual property rights to the fullest extent of the law. The name OYM and any other Trademarks shall not be used in any way, including in advertising or publicity pertaining to distribution of materials on this Site, without prior written permission from OYM. OYM also prohibits use of OYM and any other Trademarks as part of a link to or from any site unless establishment of such a link is approved in advance by OYM in writing.
- COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT NOTIFICATION
If you believe in good faith that material or Content available on OYM infringes a copyright or other intellectual property right that you own or for which you are a beneficial owner or exclusive licensee, you are encouraged to notify OYM in accordance with OYM’s Copyright or Intellectual Property Infringement Notification Policy, currently accessible at http://www.onyourmarketing.com/copyright/. If you believe that any material contained on this Site infringes your copyright or other intellectual property rights, you should notify OYM of your copyright infringement claim in accordance with the following procedure. OYM will process notices of alleged infringement which it receives and will take appropriate action as required by the Digital Millennium Copyright Act (“DMCA”). The DMCA requires that notifications of claimed copyright infringement should be sent to this Site’s Designated Agent who is:
Timothy Smith, Managing Member
On Your Marketing, LLC
195 Timber Lakes Est
Heber City, UT 84032
service [at] onyourmarketing [dot] com
Telephone: +1 435 200 3407
To be effective, the notification must be in writing and contain the following information (DMCA, 17 U.S.C. §512(c)(3)):
- Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- OPERATION, TERMINATION, MODIFICATION, AND SURVIVAL
We are continually evolving and innovating the Services, Content, and the Site. We may change the Services, the Site, the Content (defined below) we offer, and the products or services you may access at any time. We may discontinue offering the Services or the Site and we may suspend or terminate your right to use the Services or the Site at any time, in the event that you breach these Terms, for any reason, in our sole discretion, and without prior notice to you. After such termination, we will have no further obligation to you or to provide the Services, except to the extent we have otherwise agreed in writing.
Upon termination of your right to use the Services or the Site or our termination of the Services or the Site, all licenses and other rights granted to you by these Terms will immediately terminate.
You may terminate your account at any time and for any reason by sending us written notice requesting termination of your account. Any cancellation request will be handled within 30 days after we have received your request. No suspension, termination, or cancellation will affect your obligations to us under these Terms which by their nature are intended to survive such suspension, termination, or cancellation.
- DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
Your use of the Services and Content is at your sole discretion and risk. The Services and Content, and all materials, information, products and services included therein, are provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind.
WE AND OUR LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICES AND CONTENT, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
IN ADDITION, WE AND OUR LICENSORS AND AFFILIATES DISCLAIM ANY WARRANTIES REGARDING SECURITY, ACCURACY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED.
WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, THE ACCURACY OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY INFORMATION PROVIDED THROUGH THE SERVICES OR THEIR APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES. OUR SERVICES AND CONTENT ARE DEVELOPED FOR USE IN THE UNITED STATES AND WE AND OUR LICENSORS AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTY CONCERNING THE SERVICES OR CONTENT WHEN THEY ARE USED IN ANY OTHER COUNTRY.
SOME JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS, SO IT IS POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT, THE EXCLUSIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
You will indemnify, defend, and hold harmless us, our licensors and affiliates and our respective directors, officers, employees, contractors, agents and representatives, from and against any and all claims, causes of action, demands, liabilities, losses, costs or expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of or relating to any of the following matters:
(a) your access to or use of the Services, the Site, or the Content;
(b) your violation of any of the provisions of these Terms;
(c) any activity related to your account by you or any other person accessing the Site or Services through your account, including, without limitation, negligent or wrongful conduct; or
(d) your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
- LIMITATION OF LIABILITY
IN NO EVENT WILL WE OR ANY APPLICABLE LICENSORS OR AFFILIATES BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, THE SITE, OR THE CONTENT, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IF YOU ARE DISSATISFIED WITH THE SERVICES, THE SITE, THE CONTENT, OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS A REFUND OF THE AMOUNT PAID TO DM WORDS FOR SERVICES AND/OR CONTENT.
EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES, THE SITE, OR THE CONTENT OR OUR RELATIONSHIP WITH YOU, REGARDLESS OF THEORY, MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION OR BE FOREVER BARRED.
SOME JURISDICTIONS DO NOT PERMIT US TO LIMIT OUR LIABILITY IN THESE WAYS, SO IT IS POSSIBLE THAT THESE LIMITATIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT, THE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
- DISPUTE RESOLUTION / JURISDICTION / AGREEMENT TO ARBITRATE
19.1. In General. Certain portions of this Section 19 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and OYM agree that we intend that this Section 19 satisfies the “writing” requirement of the Federal Arbitration Act.
19.2. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Services, the Content, your User Submissions, or this Agreement (collectively, “Dispute”), or to any of OYM’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 19.5 below), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if you have failed to provide us with this information or if such information is not current or accurate, then we have no obligation under this Section 19.2. Your notice to us must be sent to:
Email: service[at] onyourmarketing [dot] com
195 Timber Lakes Est
Heber City UT 84032
For a period of 60 days from the date of receipt of notice from the other party, OYM and you will engage in a good faith dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or OYM to resolve the Dispute or Excluded Dispute on terms with respect to which you and OYM, in each party’s sole discretion, are not comfortable.
19.3. Forums for Alternative Dispute Resolution.
Arbitration. If we cannot resolve a Dispute as set forth in Section 19.2 above within 60 days of receipt of the notice (or, where no notice address exists for you, after such Dispute arises), then either you or we may submit the Dispute to formal arbitration in accordance with this Section 19.3. If we cannot resolve an Excluded Dispute as set forth in Section 19.2 above within 60 days of receipt of the notice (or, where no notice address exists for you, after such Excluded Dispute arises), then either you or we may submit the Excluded Dispute to formal arbitration only if you and OYM consent, in a writing signed by you and OYM’s General Counsel, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 19.3.
Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 10 years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if OYM elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this Agreement, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and OYM do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 19.3.A, then this paragraph and the remainder of this Section 19.3 will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and a legal officer of OYM consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (i) THERE IS NO JUDGE OR JURY, (ii) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (iii) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in Salt Lake City, UT; but if the applicable arbitration rules or laws require the arbitration to be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration, OYM shall have the right to elect to proceed to arbitration in such location. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require OYM to pay a greater portion or all of such fees and costs in order for this Section 13 to be enforceable, then OYM will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
19.4. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 19.2 ABOVE, WHERE FEASIBLE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED.
19.5. Injunctive Relief. The foregoing provisions of this Section 19 will not apply to any legal action taken by OYM to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, the Content, your User Submissions and/or OYM’s intellectual property rights (including such OYM may claim that may be in dispute), OYM’s operations, and/or OYM’s products or services.
19.6. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.
19.7. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 19.3.A above holds that this restriction is unconscionable or unenforceable, then our agreement in Section 19.3 above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 19.8 below.
19.8. Federal and State Courts in Salt Lake City. Except to the extent that arbitration is required in Section 19.3 above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Salt Lake City, UT. Accordingly, you and OYM consent to the exclusive personal jurisdiction and venue of such courts for such matters.
19.9. Applicable Law. This Agreement will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of Utah, without regard to its conflict of law provisions.
- WAIVER OF JURY TRIAL AND CLASS ACTION
- ERRORS AND INACCURACIES
The information on the Site, including, without limitation, information regarding pricing, may contain typographical errors or other errors or inaccuracies, and may not be complete or current. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice to you. We do not, however, guarantee that any such errors, inaccuracies, or omissions will be corrected.
- ENTIRE AGREEEMENT
These Terms constitute the entire agreement between you and us relating to our Services, the Site, and the Content, replacing any prior or contemporaneous agreements, whether written or oral, unless you have signed a separate written agreement with us relating to our Services, the Site, or the Content. If there is any conflict between these Terms and a separate signed written agreement between you and us relating to our Services, the Site, or the Content, the signed written agreement will control.
- THIRD PARTY BENEFICIARIES
Our licensors and affiliates may be entitled to enforce these Terms as third party beneficiaries.
The failure by us to enforce any provision of these Terms will not constitute a waiver. If any court of law, having the jurisdiction to decide the matter, rules that any provision of these Terms is invalid or unenforceable, then the invalid or unenforceable provision shall be removed from these Terms or reformed by the court and given effect so as to best accomplish the essential purpose of the invalid or unenforceable provision, and all of the other provisions of these Terms shall continue to be valid and enforceable. Nothing contained in these Terms shall limit the ability of a party to seek an injunction or other equitable relief without posting any bond.
- GOVERNING LAW, JURISDICTION AND VENUE
THESE TERMS AND OUR RELATIONSHIP WITH YOU SHALL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH, EXCLUDING ITS CHOICE OF LAWS RULES. YOU IRREVOCABLY AGREE THAT THE EXCLUSIVE VENUE FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR OUR RELATIONSHIP WITH YOU, REGARDLESS OF THEORY, SHALL BE THE FEDERAL AND STATE COURTS LOCATED IN SALT LAKE COUNTY, SALT LAKE CITY, UT. YOU IRREVOCABLY CONSENT TO THE PERSONAL JURISDICTION OF THESE COURTS AND WAIVE ANY AND ALL OBJECTIONS TO THE EXERCISE OF JURISDICTION BY THESE COURTS AND TO THIS VENUE. NOTWITHSTANDING THE FOREGOING, HOWEVER, YOU AGREE THAT WE MAY COMMENCE AND MAINTAIN AN ACTION OR PROCEEDING SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF IN ANY COURT OF COMPETENT JURISDICTION.
If any portion of this Agreement is found to be unenforceable or invalid, that portion shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
OYM may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your OYM account or by written communication delivered by first class U.S. mail to your address on record. You may give notice to OYM at any time via electronic mail to the following address: hello [at] onyourmarketing [dot] com.
These Terms are expressly made subject to any laws, regulations, orders or other restrictions on the export of data from the United States of America. You shall comply with such laws, regulations, orders or other restrictions, including but not limited to the Export Administration Regulations promulgated under the Export Administration Act of 1979, and the International Traffic in Arms Regulations administered by the US Department of State. You agree that these Terms will not be construed against DM Words by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. This Agreement is not assignable, transferable or sub-licensable by you except with OYM’s prior written consent. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind OYM in any respect whatsoever. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control of affect the meaning or construction of any provision of this Agreement.
- MODIFICATION OF TERMS
We reserve the right to change these Terms at any time. Any changes that we make will become a part of our agreement with you when they are posted to the Site. Your continued use of our Services, or the Site will constitute your agreement to the changes we have made. The last date these Terms were revised is set forth at the beginning of this document.
- CONTACT US
We encourage you to contact us at HELLO [at] ONYOURMARKETING [dot] COM if you have any questions concerning these Terms. Please note that email communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your email correspondence with us.