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Competitive Marketing Exchange, Inc. Online Services Agreement



NOTICE. READ THIS AGREEMENT CAREFULLY, INDICATING YOUR ACCEPTANCE BELOW ON BEHALF OF YOUR COMPANY, BEFORE CONTINUING ACCESS AND USE OF THE SYSTEM. COMPETITIVE MARKETING EXCHANGE, INC. (CMX) IS WILLING TO LICENSE THE USE OF THE SYSTEM TO CLIENT ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT ON BEHALF OF CLIENT. IF YOU DO NOT AGREE TO THESE TERMS, CMX IS UNWILLING TO LICENSE AND DOES NOT LICENSE THE USE OF THE SYSTEM TO CLIENT. YOU SHOULD CLICK THE DO NOT ACCEPT BUTTON BELOW AND YOU WILL BE RETURNED TO INTERNET AND WILL BE UNABLE TO ACCESS OR UTILIZE THE SYSTEM.

1. Grant of Right to Use Service. The terms of this Online Service Agreement (this Agreement) shall govern the use of the software and data that comprise the CMX Online Competitive Marketing System (the System) by Client. The term Client means the single property on whose behalf you are indicating approval below. Subject to compliance with the terms set forth in this Agreement, Client is granted a personal, nonexclusive, nontransferable, license to use the System (including use by the authorized employees of Client), as made available and as may be modified from time to time by CMX. Title, patents and copyrights to System remain the sole property of CMX.

2. Passwords. CMX will supply Client with unique security codes that identify Client, and Client's authorized employees, when they are on the Site. Client will be responsible for: (i) any activity on the Site that originates with security codes assigned to Client by CMX and (ii) the management of all security codes including reporting stolen or lost codes or requesting that CMX delete the security code of employees who have been terminated or whose jobs no longer require their continued access to the System.

3. Prohibited Uses of System and System Software. In consideration of the right to use the System, Client and its authorized employees will not:

(a) attempt to bypass any security mechanisms in place on the System or CMX's computer network;
(b) falsify any registration information requested or simultaneously activate more than one primary user account;
(c) distribute or allow access to the System to anyone else nor allow anyone else to distribute the Software or access the System or any of its passwords;
(d) use System for any unlawful or prohibited purpose or make any use of System not explicitly authorized by CMX herein;
(e) (i) adapt, modify, translate, reverse-engineer, de-compile or disassemble the System; (ii) create derivative works based upon the System; (iii) incorporate the System, in whole or in part, into any other software or system; or (iv) make copies of the System;
(f) remove any patent, copyright, trademark or other proprietary notices in or on System. Client will not copy, use, modify or re-distribute (i) the Reports, as accessible on the System (except as permitted in the written agreement); (ii) CMX's trademarks; or any portion thereof, except as expressly permitted by CMX; or
(g) share the data contained in a specific "data set" outside of the employees of the single property that is the Client. Any other use of the data or data set must be approved in writing by CMX and may be subject to additional fees.

4. Intellectual Property Rights. The System is protected by one or more of the following: United States, and foreign patents, copyrights, trademarks, trade secret laws and international treaty provisions. CMX owns all right, title and interest in the System and in all of CMX's patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets relating to the design, manufacture, operation or service of the System. All rights not explicitly granted in this Agreement are reserved to CMX.

5. Internet Not Secure. Electronic transmissions passing through the System or over the Internet are not secure, and CMX does not warrant the security or privacy of any of any transmissions, messages, conduct or communications to or from Client. CMX may monitor and disclose any conduct, content, or communications on the System to the extent necessary to protect the System, identify or resolve service problems, protect the rights and property of CMX, or as otherwise permitted or required by law. Notwithstanding the foregoing, CMX does not have the practical ability to restrict conduct, content, or communications that might violate this Agreement before these occur on the System, nor can CMX assume any liability for any action or inaction with respect to such conduct, content, or communications.

6. Warranty and Disclaimer. THE SYSTEM IS PROVIDED TO CLIENT ON AN AS IS BASIS. ALTHOUGH CMX WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN THE AVAILABILITY OF THE SYSTEM, CLIENT ACKNOWLEDGES THAT THE SYSTEM IS OF SUCH COMPLEXITY THAT IT MAY CONTAIN INHERENT DEFECTS AND, SINCE IT IS WEB-BASED, IS SUBJECT TO THE VAGARIES OF THE OPERATION OF THE INTERNET. CMX DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS OR GUARANTEES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND ANY WARRANTY THAT THE SYSTEM WILL OPERATE UNINTERRUPTED OR ERROR-FREE. THIS MEANS THAT CLIENT ASSUMES RESPONSIBILITY FOR ANY LIABILITY ASSOCIATED WITH USE OF SYSTEM AND THE INTERNET.

7. Limitation of Liability and Damages. IN NO EVENT SHALL CMX HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, GENERAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING FROM THE USE OF OR INABILITY TO USE THE SYSTEM, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOSS OF DATA, OR OTHERWISE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT OR OTHER THEORY OF LIABILITY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR NOTICE TO CMX OF THE POSSIBILITY OF SUCH DAMAGES OR NOTWITHSTANDING WHETHER SUCH DAMAGES WERE FORESEEABLE. THIS LIMITATION SHALL NOT APPLY TO DAMAGES FOR PERSONAL INJURY OR DEATH. IN NO EVENT SHALL THE LIABILITY OF CMX FOR BREACH OF THIS AGREEMENT, OR ANY WARRANTY EXCEED THE PRICE ALLOCABLE TO THE SERVICES OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM..

8. Force Majeure. Neither party shall be liable to the other for delays or non-delivery or non-fulfillment of any orders or failure to perform any part of this Agreement for any reason or unforeseen circumstance beyond the affected party's reasonable control, including without limitation acts of God, fire, labor disputes of any nature, inevitable accident, insurrection, delays in transportation, delivery, or supply.

9. Terms and Conditions of Written Agreement. The terms of this Online Services Agreement supplement any written agreement between CMX and Client. If there is a conflict between the terms of the written agreement and this Online Services Agreement, the terms of this Online Services Agreement will prevail.



BY HAVING CLICKED ON THE ACCEPT BUTTON AT YOUR ACCOUNT INITIATION YOU ACKNOWLEDGED THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS

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Copyright 1991-2018. Competitive Marketing Exchange, Inc. All Rights Reserved.