Dated: January 22, 2018
THIS IS A BINDING LEGAL AGREEMENT. READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE AND PRINT A COPY FOR YOUR RECORDS.
This Agreement is between Resmark Systems, Inc., a Utah Corporation also dba as “WaiverSign” (also referred to as “Resmark,” “we,” “our” or “us”), and you and any and all entities you represent in using our Service. By accessing our website or using our Service, you are agreeing to be bound by these terms and conditions (“Terms” or “Terms of Service”), which include all updates, supplements, fee agreements, additional terms and any of Resmark’s rules and policies (collectively, the “Agreement”). These Terms of Service govern your access to and use of Resmark’s online Platform, Resmark’s “WaiverSign” electronic signature service (“WaiverSign”), Resmark Content, Resmark intellectual property, including Resmark’s trademarks, Resmark owned and operated websites located at https://www.resmarksystems.com and https://www.waiversign.com (“Site” or “Sites”), Resmark’s application program interfaces (“API”) and any other product, service, and feature provided by us under this Agreement (collectively referred to as “Service”), however accessed or used, that are operated by us, made available by us, or produced and maintained by us. You can review the most current version of the Terms of Service at any time at https://www.resmarksystems.com/terms.
These Terms are effective as of the date you click the “I Accept” button below or checkbox presented with these terms, whichever is applicable, or when you use any part of the Service, whichever date is earlier (“Effective Date”). Please read these Terms carefully and keep a copy for your records.
Any new features or tools which are added to the current Service shall be subject to these Terms of Service. This Agreement is applicable to any individuals and entities that use our Service, including but not limited to entities that list Products through the Service (“Supplier(s)”), third parties that offer to sell and sell Products through the Service (“Seller(s)”), and individual consumers that use the Service, directly or indirectly, in any manner, including to purchase a product (“Customer(s)”) (collectively and individually, “you” or “your”).
These definitions are in addition to those that appear elsewhere in this Agreement.
“Content” means software (excluding Resmark’s API), data, text, audio, video, graphics, photographs, music, images, information and other content.
“Customer” means a person or entity that requests to purchase or purchases a Product from a Seller and all persons or entities listed in a booking, transaction or purchase made through the Service. Customer also includes any persons or entities who are requested to submit an Electronic Contract through WaiverSign. Additional terms that apply to Customers appear towards the end of this Agreement.
“Electronic Contract” means any contract or document submitted for electronic signature through Resmark’s WaiverSign electronic signature service for the signing of documents.
“Platform” means Resmark’s online platform that allows Suppliers and Sellers to connect for the purpose of viewing and accessing Product offerings, taking Customer orders, facilitating purchases of Product by Customers, and conducting related transactions.
“Product” means tours and trips, transportation, accommodations, tickets to events, lessons,>
“Your Content” means Content you 1) submit or upload to the Service under your account, including Electronic Contracts that you originate; or 2) otherwise transfer, publish, post, process, transmit, generate, display, use or store through the Service or in connection with your account, excluding Resmark Content and Third Party Content.
“Resmark Content” means Content we make available to you in connection with the Service to allow access to and use of the Service and Platform, including any Content licensed from a third party, but excluding Your Content.
“Supplier” means a third party that supplies Product to Sellers and Customers and accepts Product orders from Sellers. A Supplier can also be a Seller. Additional terms that apply to Suppliers and Sellers appear at the end of this Agreement.
“Seller” means a third party that offers to sell and sells Product(s) through the Service, including but not limited to, travel agencies, tour operators, event and activity reservation desks, and online travel agencies and booking sites that are connected to Resmark’s Platform through its API. A Seller can also be a Supplier. Additional terms that apply to Suppliers and Sellers appear at the end of this Agreement.
“Third Party Content” means Content made available to you by any third party, on the Site or otherwise, or in connection with the Service.
2. Description of Certain Features of the Service
Online Platform. Resmark provides an online platform that allows Suppliers and Sellers to connect online in order to facilitate Customer purchases of Product. Suppliers can list their Product offerings and invite Sellers to sell their Product. Sellers can view, search and customize Product offerings. Customers can purchase Product directly through a Seller’s Resmark powered website, a Resmark shopping cart on a Seller’s website, or through a third-party API that is connected to Resmark’s API. Seller or Supplier may also create an order for the Customer in the Platform.
Resmark does not own, operate, control or manage any Supplier or Seller. Nor does Resmark provide, own, rent, sell, furnish, manage or control any Product offered through the Service. Resmark’s responsibility is limited to providing a means for Suppliers and Sellers to connect and facilitate Customer orders and purchases of Product.
WaiverSign Electronic Signature Service. The WaiverSign electronic signature service is owned and operated by Resmark Systems. WaiverSign is described more fully at https://www.waiversign.com. WaiverSign is an integrated feature of the Resmark Platform, the availability of which depends on your subscription plan.
3. Minors and Legal Authority. You must be 18 years of age or older to use this Service. The Site is not directed to children under 18 (“Minors”), and it does not offer products or services for use by Minors. You represent that you have the legal authority to enter into binding contracts for yourself and any entity that you represent in accessing and using the Service. We reserve the right to refuse access to anyone for any reason at any time.
4. Website Terms and Conditions. Your use of the Sites is governed by the Website Terms and Conditions (“Site Terms and Conditions”) located at www.resmarksystems.com and www.waiversign.com. By using the Site and Service, you agree to the Site Terms and Conditions.
5. Changes to Terms of Service. Resmark has the right to modify these Terms at any time by posting an updated Terms on the Site. You are responsible for periodically checking the Terms for updates. The latest Terms can be found at www.resmarksystems.com/terms/ or www.waiversign.com/terms/. Your continued use of the Service after the Terms have changed means you agree to and accept the revised Terms. We may also require that you accept the updated Terms in order to log into your account. Without limiting the foregoing, if we make a material change to the Terms, we will post a notice of the change on the Site. We may also email a notice of the change to the email address you provided to us. Material changes to these Terms will become effective 60 days after such notice is posted, unless the changes apply to new functionality in which case they will be effective immediately. Resmark shall not be liable to you or to any third party for any changes to these Terms. If the modified Terms are not acceptable to you, your only recourse is to discontinue using the Service and terminate your account, at which point you will no longer have access to the Service. In this event, you will continue to be responsible for any payments that are due under the Service.
6. Free Products. Sellers and Suppliers may provide Products free of charge. Any terms and conditions that apply to Product purchases will apply to free Products.
New Features and Functionality. Resmark may update the Service with new applications, tools, features or functionality from time to time. We will inform you of any material changes to the Service by posting a notice on the Site, by email if you have subscribed to our notices, or at login. Any material update may be contingent upon your acceptance of updated Terms.
Changes and Discontinuation. Subject to these Terms, Resmark may at any time change, modify, eliminate, or reduce the features, functionality and any other aspect of the Service, including the Service as a whole. We will notify you of any material change to or discontinuation of the Service by posting a notice on the Site, sending notice to the email address you have provided to us, or at login. We may at any time also change, modify, eliminate, discontinue or reduce any application program interface for the Service but will use commercially reasonable efforts to continue supporting the previous version of the affected API for 12 months after the change, modification, elimination or reduction except if doing so a) would pose a security or intellectual property issue, b) would be economically or technically burdensome, or c) would violate the law or requests of governmental entities (e.g., a court order or a subpoena). Any material change may be contingent upon your acceptance of updated Terms.
System Requirements. The Service may be accessed from a variety of platforms, including desktops, smartphones and tablets. You do not have to download or install any software to use it. All that is required is an Internet connection and a web-browser that supports HTTPS protocol, HTML, and accepts cookies.
Availability. To provide the level of service our users expect, we must from time to time take down the Service to perform maintenance or make upgrades. This downtime will usually take no more than an hour. To minimize disruption, we will try to bring the System down at non-peak times. Resmark has no control over and shall not be responsible for any interruptions or problems with the Service due to circumstances beyond our control, e.g., third party service issues, power outages, weather, natural disasters.
Third-Party Services, including Cloud Storage. The Service’s functionality relies in part on certain third-party services such as Amazon Web Services. Further, the administrator of a Resmark account may authorize an electronic waiver system such as WaiverSign, which we own, or a third party service using an API provided by Resmark. These third-party or other services may have separate terms and conditions, license or software agreements that govern any of the features they provide. Resmark is not an agent or representative of any of these third-party services. Resmark shall not be liable for any data or other damage or losses that you suffer as a result of any problems with any third-party services such as Google Cloud Storage, Amazon Web Services or any other service providers used by Resmark.
Customer Support. Resmark provides customer support for the Service as set forth on the Site at www.resmarksystems.com.
Jurisdiction. Resmark makes no representation that the Service is suitable or available for use in all locations. You are prohibited from accessing the Service from a jurisdiction where the Service does not comply with all laws of that jurisdiction. Anyone who accesses the Service does so on their own accord and is responsible for complying with all applicable laws and regulations.
8. Privacy and Security
Security and Data Storage. Resmark has implemented commercially reasonable steps to maintain the security of the Service. The Service adheres to national and international security standards that are designed to protect customer data, including SSL and OAuth 2.0. Storage of customer data is provided through third-party services such as Amazon Web Services. Your data may be processed and stored in the United States or any other country in which these third parties and their agents maintain facilities. By using the Service, you consent to this processing and storing of your data. We also use the HTTPS security protocol to protect information that is transmitted to your web browser. In the event of any data breach, Resmark will promptly respond and notify customers.
9. Changes to Content. You acknowledge that in order to provide and make Your Content available on the Service, we may transmit your content across various public networks, in various media, and modify or change Your Content to comply with technical requirements of connecting networks or devices. You agree that Resmark has the right to take any such action.
10. Information You Supply. You agree that all information that you provide to Resmark, including account, verification, and billing information, is true, accurate, complete and current, and that you have the legal authority to use any email address and any credit or debit card or ACH account information you provide. Resmark may immediately suspend, terminate and/or permanently delete accounts and/or content that contains false or incomplete information.
11. Payments for Products. Resmark does not accept or process payments for Product purchases made through the Service. Rather, we make available various third party payment gateway services and merchant services (collectively, “Payment Services”) for Sellers, Suppliers and Customers to conduct Product purchases. We also use Payment Services to collect Service Fees from Sellers and Suppliers. Resmark is not affiliated with these Payment Services and does not own, operate or manage any of these Payment Services. You must abide by the relevant terms and conditions that govern your use of any given Payment Service. We may add and remove any Payment Service at our sole discretion and without notice to you. You are solely responsible for all amounts payable associated with any purchases you make or receive through the Service.
12. Responsibility and Cooperation. You acknowledge and agree that you are responsible for your own acts and omissions, as well as the acts and omissions of any person or entity under your care, custody and control. You agree to fully cooperate with and assist us in good faith in connection with any disputes or investigation undertaken by us or our representative regarding any violation of this Agreement.
13. Resmark: Non-Party to Agreements Between Sellers, Suppliers and Customers, as well as Electronic Contracts. You acknowledge and agree that Resmark is not a party to any agreements entered into between users of the Service, including but not limited to agreements between Sellers and Suppliers, Sellers and Customers, Suppliers and Customers, has no control over the conduct of Suppliers, Sellers, and Customers or Product offered for sale or sold through the Service. We provide the Service as a convenient way for sellers and suppliers to connect and offer Product to consumers and for consumers to purchase Product. We disclaim any and all liability associated with the use of our Service. You acknowledge that Resmark does not control the content contained in any Product listings and makes no representations or guarantees about the condition, legality or suitability of any Product. We are not responsible for and disclaim any and all liability related to any and all Product listings and Product Purchases. You are responsible for determining the appropriateness and suitability of any prospective Customer, Seller, Supplier or any Product made available or purchased through the Service. The use or consumption of a Product is at the Customer’s own risk.
Regarding WaiverSign, we provide the WaiverSign electronic signature service as a convenient and paperless way for contracts to be signed. Unless we are named as a party to an Electronic Contract, we does not have any relationship to any documents transmitted through the Service and are not a party to any Electronic Contracts. We do not review or control the quality of the Electronic Contracts. A user who submits an Electronic Contract for processing through the Service is responsible for the content, execution (including the recognition of all parties in interest) and legality of the Electronic Contract. As such, we disclaim any representations of any kind regarding the Electronic Contracts and any other transactions that are transmitted or conducted through the Service. You agree that we shall not be responsible or liable with respect to the validity or enforceability of any Electronic Contracts, the breach of any party in the performance of its obligations under the contracts, or the results of any such contract. We shall not be responsible if a party fails or is unable to electronically sign a contract. If any dispute arises between or among any parties to an Electronic Contract, we shall not be responsible or liable with respect to that dispute. Further, we will have no obligation to help mediate any such dispute, to locate any other party to the contract, or to otherwise help resolve a dispute.
14. Right to Cancel, Errors, Mistakes. The Service may contain technical inaccuracies and typographical or other similar errors in connection with information that is made available by Resmark and third parties through the Service. We assume no responsibility or liability for such errors, inaccuracies, or omissions. We have the right in our sole discretion to make changes, corrections or cancellations to any information that we provide at any time. Users of our Service are responsible for correcting any errors, inaccuracies or omissions in their Content. We are not responsible for communication failures, errors or other malfunctions or lost, stolen or misdirected transactions, transmissions, messages or entries on or in connection with the Service.
15. Lawful and Proper Use/License Restrictions
You agree to use the Service in compliance with all applicable laws, rules and regulations. You agree that you and any third parties under your control will not use the Service
a) for illegal or unauthorized purposes,
b) to modify, alter, tamper with, damage, disrupt, or impair the Service, including Resmark’s API and any Resmark powered websites
c) to infringe upon or misappropriate Resmark’s and any third party’s intellectual property, including trademark, copyright, patents and trade secrets,
d) to breach any obligations owed to a third party or any other rights of a third party, including publicity and privacy,
e) to send unsolicited mass mailings outside your organization,
f) to create or improve (directly or indirectly) a substantially similar product or service or to create a derivative work,
g) to directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Service;
h) to reproduce, copy, distribute, duplicate, resell, sublicense, rent, trade or exploit any portion of the Service, use of the Service, or access to the Service;
i) to attempt to gain unauthorized access to the Service, other accounts, computer systems or networks under the control or responsibility of Resmark through hacking, cracking, password mining or any unauthorized means;
j) use any automated means to access the Service or collect any information from the Service (including without limitation, robots, spiders or scripts), frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages;
k) transmit any worms or viruses or any code of a destructive nature;
l) for purposes that Resmark reasonably determines to be unlawful, obscene, pornographic, harassing, threatening, defamatory, fraudulent, abusive or otherwise objectionable; and
m) access or attempt to access content on the Service through any interface except for the websites, applications, platforms or any other authorized interface provided by Resmark.
Prohibited activities include “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information.
Resmark does not pre-screen or edit your content and it is in our sole discretion to refuse or remove any content that is available on the Service.
Resmark, in its sole discretion, may immediately suspend your access to the Service or terminate your account if you violate this provision.
You may revoke this license to Your Content and terminate our rights at any time by removing Your Content from the Service and deactivating your account, subject to any continuing obligations under this Agreement. We may also retain your account information unless you contact us and request that that information be removed. Note that some copies of Your Content may be retained as part of our routine backups.
17. Links to Third Party Sites. Our Site and Services contains links to third-party websites that are not owned by or affiliated with us. These links are provided solely as a convenience to you and so not constitute an endorsement of the linked websites or the products and/or services offered on those websites. We encourage our users to contact those sites directly about policies and practices.
18. Third Party Requests. Resmark may receive third party requests or demands relating to your use of the Service, including any content you provided on the Service (“third party request”). A third party request includes a lawful search warrant, court or government order, and subpoena. Such request may require the disclosure or production of information you provided to us or on the Service, including Your Content and account information. Resmark will, unless prohibited by law or the third party request, a) notify you of any third party request, b) provide you, to the extent legally permissible, a reasonable opportunity to protect your interest in any appropriate court or in such other appropriate manner, and c) if the information is in the sole possession of and reasonably accessible by Resmark, provide you with the information required for you to respond to the third party request. Nothing in these Terms shall require Resmark to go into contempt of court for violating a court order or other lawful third party request.
19. Use of Service and Account Registration. To use the Service, you must register for an account by submitting information about yourself and any entities you represent. The account that is created is called the “Business Account” and you as the creator automatically become the “Business Owner” of the Business Account. A Business Owner is able to add and terminate or archive “Users” and “User Accounts” under the Business Account, or designate another person as the Business Owner of the Business Account. Users within each Business Account may be given specific permissions, including but not limited to the adding and archiving other users and inviting third parties to accept a Business Account.
When you designate another person as a Business Owner of your Business Account, they will have the same ability to remove and add other Business Owners, including you, from the Business Account. A Business Owner can also give users various permissions, including the right to manage other Users except for the Business Owner. Users that are added will be given a “User Account” under the Business Account. Users must affirmatively accept the Business Owner’s invitation to use the User Account.
You must keep your account (whether an owner or user) current by updating all information associated with it. You are responsible for the information you provide to create your account, the security of your account and for any use of your account by you, your employees or a third party (including your contractors and agents).
You may not attempt to gain unauthorized access to the Site or Service using someone else’s account. If you suspect or learn that someone is using your account without your permission, you must promptly notify us. If you violate these Terms by allowing someone who does not have an account to use your account (excluding authorized employees), Resmark may terminate or suspend your account for violating the Terms. We may also suspend your access to the Service and, in our sole discretion, immediately terminate your account, if you a) breach this Agreement; b) we are unable to verify or confirm any information you provide to us; or c) we believe that your actions may cause financial loss or legal liability for us, you, Customers, Sellers, Suppliers, or any third party. We may immediately suspend or terminate your access to the Service or your account and permanently delete your account and all contents as otherwise permitted under this Agreement. You may terminate your account and these Terms at any time in accordance with this Agreement.
20. Subscription Plans, Fees, Payment and Financial Terms. We provide the Service for a Monthly Subscription Fee or custom pricing, with all amounts payable in US dollars. In addition to the Subscription Fee, your account may also incur a service charge based on the total transaction cost of each order, a cost per signed document, costs per email and text message sent, as well as any other fees as specified in your subscription settings within your account. Fees depend on the subscription plan that you select and the fee-based features that you chose to activate in your account. Current advertised service fees are available at http://www.resmarksystems.com and http://www.waiversign.com. Note that these may not be the fees applicable to your account. To view the current service fee associated with your account, refer to the details stored in your account’s subscription settings.
You agree to pay Resmark the subscription and any related service fees associated with your account using the forms of payment approved by Resmark and that you have selected under your account. Approved forms of payment include credit card and ACH through third party Payment Services. All Service Fees are retained by Resmark. All commissions, net discount rates and any other payments agreed upon by Seller and Supplier are the Sellers’ and Suppliers’ responsibility. In the event Resmark imposes additional fees in the future, e.g., listing fees, Resmark will provide notice to you prior to implementing such a fee.
Payment for all charges is due and will be charged to your preferred method of payment upon your recurring billing date, the timing of which depends on your specific subscription. Billing cycle end dates may vary. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or pro-rations. A detailed billing summary containing all charges is available within your account.
By creating your account and providing your credit/debit card or ACH information, you authorize Resmark to charge and automatically continue charging your credit/debit card or ACH account any and all Service Fees that are due, any and all applicable taxes, any late fees, and any other charges you incur during your use of the Service until such amounts are paid in full. Timing of charges can be found under your Subscription Settings within the Platform. If you wish to change your payment method or change your Subscription Plan, please contact us.
Resmark may at any time change the price of the Service (in its entirety or in part). Resmark may increase or add new charges or fees for the Service (in its entirety or in part) by giving you 30 days’ advance notice. If you do not agree to any such price changes, then you must cancel your account and stop using the Service. All fees and charges through the end of the billing cycle in which termination occurs will be immediately due and you will be responsible for paying those fees and charges Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change.
Unless we agree otherwise in writing, all payments we receive and shall be in US dollars. You are responsible for any conversion, including any service or other charges, into a currency other than US dollars. If we convert any payment into a foreign currency, we may deduct any processing expenses.
We may charge you interest at the rate of 1.5% per month or, if less, the highest rate permitted by law, on all late payments.
Resmark may, with at least 30 days’ advance notice to you, increase the Service Fee. You agree to allow us to assess the fees with such notice, even if those fees are higher than those you agreed when you registered your account. If you do not agree to any such price changes, then you must cancel your account and stop using the Service. All fees and charges through the end of the billing cycle in which termination occurs will be immediately due and you will be responsible for paying those fees and charges. Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change. If you believe there has been a billing error, please notify us within 45 days of the billing date by contacting us through the information provided on our Site. You may also contact us about any other billing and account questions.
21. Refunds. No refunds or credits will be issued for partial months of service, unused service due to upgrades or downgrades in subscription plans, or for months unused with an active account. Refunds, if any, are within the sole discretion of Resmark. Nothing in these Terms obligates Resmark to provide any refund or credit to a party. Applicable local law may vary this policy.
22. Upgrades and Downgrades to Subscription Plan. You may change your subscription plan at any time by updating your subscription yourself or by contacting us a) using a method provided on the “contact us” page of the Site or by calling us at 877-741-7705 (toll-free) or 801-733-5362. The amount charged on the next billing cycle will be automatically updated to reflect any changes to your Subscription Plan, including upgrades or downgrades.
23. Free Trial and Automatic Billing. If you register on our Site for a free trial, which we may offer in our sole discretion, we will make one or more of the monthly Subscription Plans available to you on a free trial basis until the earlier of a) the end of the free trial period for which you registered, or b) the activation date of any paid Subscription Plan that you purchase. The free trial version of our Subscription Plans may not have the same features as a paid Subscription Plan and may be subject to certain limitations. Additional terms for the free trial period may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms and are legally binding. If you register for a free trial by providing your credit or debit card or ACH bank account information, you acknowledge that you must cancel your account before the end of the free trial to avoid being charged automatically each month for the applicable paid Subscription Plan after the free trial. If you register for a free trial without providing your credit or debit card or ACH bank account information, you agree that you must provide that information and purchase a paid Subscription Plan before the end of the free trial or your account will be terminated at the end of the free trial period.
Further, we will delete Your Content as soon as your free trial period expires if you have not purchased a paid Subscription Plan. You must export Your Content before the end of your trial period or Your Content will be permanently deleted.
24. Insurance. You acknowledge and agree that Resmark does not act as an insurer or as a contracting agent for you. Resmark recommends that you obtain appropriate insurance for your business. Review any insurance policies that you have in order to understand what they will and will not cover, including with respect to your Customers.
Suspension Generally. We may suspend your right to access or use any portion of or the entire Service immediately if we determine that
a) your use of the Service violates these Terms, pose a security risk to the Service or any third party, may adversely impact the Service, may subject us, our affiliates or any other third party to liability, or may be fraudulent;
b) you have violated these Terms, including if your account is past due for more than 30 days; or
c) you have been declared insolvent or bankrupt, have been acquired by a third party, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any reorganization, liquidation, dissolution or similar proceeding.
Resmark will make a reasonable effort to notify you before or promptly after any suspension or disablement takes place. Our right to suspend your right to access or use the Service is in addition to our right to terminate these Terms pursuant to this Agreement.
Your Obligations During Suspension. If you are suspended from the Service, a) you continue to be responsible for all fees and charges you have incurred through the date of suspension, b) you continue to be responsible for any applicable fees and charges for any portion of the Service to which you continue to have access, and c) we will not delete Your Content excepted as specified in these Terms.
26. Term and Termination
Term. These Terms will remain in effect until one of us terminates them pursuant to these Terms.
Resmark may in its sole discretion give a party in breach 30 days from the date written notice is provided to cure such breach. If Resmark provides a cure period, it will do so in writing.
Effects of Termination. If these Terms expire or are terminated, then a) the rights granted by one party to the other party will immediately cease; b) all fees and charges through the end of the billing cycle in which termination occurs will be immediately due and you will be responsible for paying those fees and charges. In the event of termination, you will not be entitled to any refund of any prepaid fees or amounts. Termination of these Terms shall be without prejudice to any other rights or remedies that either party may have at law or in equity.
Account Content. Once your account is terminated, you may no longer have access to Your Content. We may also, in our sole discretion, deny access to Your Content and/or delete all or a portion of it if we determine in our sole discretion that you have violated these Terms. As such, we encourage you to copy or save Your Content, including any Electronic Contracts, because once your account is terminated, you may no longer have access to your account, including Your Content.
27. Intellectual Property and Other Proprietary Rights
Your Content. You represent that you or your licensors own all right, title and interest in Your Content and that you have obtained all consents or the necessary licenses to grant us the license referred to under this Agreement. You are completely responsible for Your Content. Except as provided under this Agreement, Resmark has no ownership interest in the materials and/or content you or your licensors submit or make available on the Service. You are also solely responsible for ensuring your Content complies with these Terms and the law and for any claims relating to Your Content and the proper handling and processing of notices sent to you by any person claiming that your content violates their rights. We may disclose Your Content to (a) provide the Service to you, (b) to comply with a third party request, (c) enforce these Terms, including investigation of any potential violation thereof; (d) detect, prevent or otherwise address security, fraud or technical issues; (e) protect the rights, property or safety of Resmark, its users or the public as required or permitted by law; and (f) otherwise in accordance with these Terms.
Our Intellectual Property. You agree that Resmark owns all right, title and interest in and to the Service and Site, including but not limited to the Resmark Content. All information, text, logos, trademarks, service marks, images, graphics, software, services and other content that make up the Site and Service are the property of Resmark, its licensors, partners or third-party providers and are protected by copyright, trademark, patent, trade secrets, unfair competition, and other U.S. and international laws, through the application of local laws or other treaties. Any unauthorized use, reproduction or modification of the Service (or any part thereof) may violate such laws. Nothing in these Terms shall be construed to convey to you rights, implied or otherwise, to Resmark’s Content or intellectual property. You may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or material contained on the Service. You may not use Resmark’s name, the WaiverSign mark, or any language, pictures or symbols which could, in our judgment, imply Resmark’s endorsement in any written or oral advertising, presentation, brochure, newsletter, book or other written material of any kind, without prior written consent from us unless expressly permitted under these Terms. The Service, its content and all related rights is the exclusive property of Resmark unless otherwise expressly agreed. You may not remove any copyright, trademark or other proprietary notices from material found on the Service.
Suggestions. If you submit any suggested improvements to the Service to us, we will own all right, title and interest in and to the suggestions. We will have the unrestricted right to use the suggestions. You hereby irrevocably assign to us all right, title, and interest in and to the suggestions and agree to provide any assistance we may require to document, perfect and maintain our rights in the suggestions.
28. Copyright Protection. Resmark will promptly take down materials from the Service if properly notified that the materials infringe a third party’s copyright pursuant to the Digital Millennium Copyright Act (“DMCA”). Further, Resmark may, as appropriate, immediately cancel the accounts of repeat copyright infringers.
If you have a good faith belief that your copyright or other intellectual property rights have been violated, please contact our Copyright Agent with the following information:
1) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property right;
2) a description of the copyrighted work or other intellectual property that you believe has been infringed;
3) a description of the allegedly infringing material together with enough information for us to locate the material;
4) a statement that you have a good faith belief that the use of the material complained of is not authorized by the copyright owner, its agent or the law; and
5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner’s behalf.
You may submit this information or any questions related to intellectual property to Resmark’s Copyright Agent by mail or email using the following contact information:
Resmark Systems, Inc.
7258 Racquet Club Dr
Salt Lake City, UT 84121
Attention: Copyright Agent
29. Indemnification and Release
Indemnification by You. You will defend, indemnify and hold harmless Resmark and its affiliates, subsidiaries, officers, directors, employees, consultants, agents, licensors, assigns, and successors from and against any claim, cause of action or demand, including reasonable legal and accounting fees, in any action filed or commenced by a third party arising out of or related to a) your breach of these Terms or any other Resmark agreements made part of these Terms by reference, b) your violation of any law or intellectual property or other rights of a third party, c) your use of the Service, including any information that you provide to Resmark; d)Your Content; and e) any other party’s access and use of the Service with your username and password.
Procedure. We will promptly notify you of any claim, cause of action or demand subject to this section. Any failure to promptly notify you will only affect your obligations under this section to the extent that your ability to defend the claim is prejudiced. You may a) select counsel to defend against any claim; and b) settle the claim as you deem appropriate but if any such settlement requires us to admit liability or to pay any money, you must obtain our prior written consent before entering into any settlement.
Release. In the event of a dispute with other users of the Service, including but not limited to a Seller, Supplier, or Customer, you release Resmark and its affiliates, subsidiaries, officers, directors, employees, consultants, agents, licensors, assigns and successors from and against any claim, cause of action or demand of every kind and nature, known and unknown, disclosed and undisclosed, arising out of or related to such dispute, including without limitation any dispute over the payment to the Seller or Supplier or the Product that is provided (or not provided). This release does not apply to Resmark’s gross negligence or intentional misconduct.
30. Additional Representations and Warranties by You
In addition to the representations and warranties contained elsewhere in this Agreement, you further represent, warrant and covenant that a) you are solely responsible for any and all content that you provide or otherwise make available in using the Service, b) you will not solicit or collect any personal information from Minors under the age of 13 unless such information is voluntarily provided by their parent, legal guardian or authorized caretaker to make a Purchase; c) you are responsible for maintaining any Product you are responsible for providing or delivering in a safe and reliable manner and are responsible for any resulting harm, damage and/or losses; d) you will not breach any agreements that you have entered into with any other party using this Service; and e) your Product offerings will include any applicable government-imposed tax or fee and that you will be solely responsible for the collection and payment of any required taxes and fees to the appropriate government authorities.
No Warranties. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” RESMARK DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE (UNLESS SUCH WARRANTIES ARE INCAPABLE OF EXCLUSION UNDER APPLICABLE LAW), INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND, FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT WARRANT THAT ANY CONTENT MADE AVAILABLE THROUGH OUR SERVICE IS ACCURATE, COMPLETE, CURRENT OR RELIABLE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. ALTHOUGH WE MAKE REASONABLE ATTEMPTS TO BLOCK VIRUSES FROM THE SERVICE, WE DO NOT WARRANT THAT THE INFORMATION OR MATERIAL ACCESSIBLE THROUGH THE SERVICE IS FREE OF VIRUSES, TROJAN HORSES OR OTHER HARMFUL CONTENTS OR COMPONENTS. WE ALSO DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE YOU SUSTAIN FROM THE USE OF THE SERVICE AND ANY DAMAGES TO THIRD PARTIES RESULTING FROM YOUR USE OF THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN.
PERSONS AND ENTITITES USING THIS SERVICE ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF RESMARK. RESMARK IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH SELLERS AND SUPPLIERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. RESMARK HAS NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OVERBOOKING, STRIKE, FORCE MAJEURE OR OTHER CIRCUMSTANCES BEYOND ITS CONTROL, AND RESMARK HAS NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, SCHEDULE CHANGES, OR ACTS OF ANY GOVERNMENT OR AUTHORITY. RESMARK MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC PRODUCTS AND SERVICES.
No Legal Advice. The information provided on the Site and by the Service is intended for informational purposes only. Such information is not intended to be, nor should it be interpreted as, legal advice or opinion. If you require legal advice, consult an attorney licensed or authorized to practice in your area. Your use of the Service cannot replace the advice of an attorney or create an attorney-client relationship between you and Resmark.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT RESMARK SHALL NOT BE LIABLE FOR ANY INJURY, LOSS, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM (i) ANY MISUSE, ERRORS, DELAYS, OR OMISSIONS RELATING TO THE SERVICE, (ii) THE UNAVAILABILITY, INTERRUPTION, TERMINATION OR SUSPENSION OF THE SERVICE, (iii) ANY ACTS OF THIRD PARTIES, (iv) ANY DOCUMENT, TRANSACTION OR CONTENT TRANSMITTED THROUGH THE SERVICE WHERE RESMARK WAS NOT A DIRECT PARTY; (iv) UNAUTHORIZED ACCESS TO, ALTERATIONS, DELETION, DAMAGE, DESTRUCTION, OR LOSS OF YOUR DOCUMENTS, TRANSACTIONS OR CONTENT; (v) OR ANY OTHER MATTER RELATING TO THE SERVICE WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. RESMARK SHALL NOT BE LIABLE UNDER THESE TERMS FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, DATA, GOODWILL OR OTHER INTANGIBLE LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, THE AGGREGATE LIABILITY OF RESMARK ARISING OUT OF A CLAIM RELATED TO THESE TERMS OR THE SERVICE SHALL NOT EXCEED THE AGGREGATE AMOUNT OF ANY SERVICE AND BOOKING FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE ACTION OR CLAIM. THIS PROVISIONS DOES NOT APPLY TO RESMARK’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
IN THE EVENT OF ANY PROBLEM WITH THE SERVICE, YOU AGREE THAT YOUR SOLE REMEDY IS TO STOP USING THE SERVICE. IN THE EVENT OF ANY PROBLEM WITH THE SELLER, THE SUPPLIER OR THE PRODUCT, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THAT SELLER OR SUPPLIER DIRECTLY AND THAT RESMARK IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES INCURRED BY YOU AS A RESULT OF ANY DEALINGS WITH THE SELLER OR PROVIDER.
a) To You. We may provide notice to you under these Terms in English by i) posting the notice on the Site, ii) sending the notice to the email address associated with your account. Except as otherwise provided in these Terms, notices we provide by posting on the Site will be effective upon posting, or iii. Notices provided by email will be deemed received and effective when we send the email, whether or not you actually receive or open the email.
b) To Us. Except as otherwise provided in these Terms, you must provide notice to us in English by i) personal delivery, overnight mail or registered or certified mail to Resmark Systems, Inc. at 7258 Racquet Club Drive, Salt Lake City, UT 84121; or (ii) by facsimile transmission to 801-942-8514. We may update this contact information by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight mail will be effective one (1) business day after they are sent provided that we actually receive the notice. Notices provided by registered or certified mail will be effective three (3) business days after they are sent provided we actually receive the notice.
Import and Export Compliance and HIPPA. Use of the Service may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. You also acknowledge and agree that you are solely responsible for compliance with the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued thereunder (“HIPPA”), if applicable.
No Waiver. Neither party’s failure to enforce any provision of these Terms will be treated as a present or future waiver of such provision or a waiver to enforce such provision in the future.
Force Majeure. Resmark will not be deemed in breach of these Terms or otherwise liable to you, by reason of delay in performance or nonperformance of any of its obligations under these Terms to the extent that any such delay or nonperformance is due to any Force Majeure. “Force Majeure” means any circumstances beyond the reasonable control of Resmark including, without limitation, acts of nature, terrorist activities, insurrection, explosion, flood, tempest, forceful wind, fire or accident, war or threat of war declared or undeclared, sabotage, civil disturbance, labor strikes, requisition, sickness, quarantine, government intervention, weather conditions, and unforeseen circumstances.
Relationship. You agree that no joint venture, partnership, employment or agency relationship exists between you and Resmark in the performance of these Terms and that no such relationship is created between you and Resmark as a result of your use of the Service.
Violations and Non-Waiver. Resmark reserves the right to seek all remedies available at law and in equity for violation of this agreement, including the right to block access from a particular Internet address to the Site. Nothing in this Agreement reduces either party’s ability to seek equitable relief. In no event shall any delay, neglect or forbearance on the part of any party in enforcing (in whole or in part) any provision of this Agreement be or be deemed to be a waiver of any other provision or shall in any way prejudice the right of that party under this Agreement.
Fictitious Names. Fictitious names of companies, products, individuals, or characters mentioned on the Service may not necessarily represent any real individual, company or product or correspond to formal legal names.
Headings. Headings are for reference only and in no way define, limit, construe or describe the scope or extent of such section.
Assignment and Binding Effect. Unless you have prior consent from us, you will not assign these Terms, or delegate or sublicense any of your rights under these Terms. You agree that Resmark may assign this Agreement in its sole discretion. Subject to the foregoing, these Terms shall be binding upon and shall inure to the benefit of the parties, their respective successors-in-interest, legal representatives, heirs and assigns.
Severability. In the event that any provision of these Terms shall be unenforceable or invalid under any applicable law, the remaining portions of these Terms will remain in full force and effect. Further, if possible, such unenforceable provision will be replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the original provision.
Survival. All provisions that logically ought to survive termination or expiration of this Agreement shall survive, including but not limited to those involving intellectual property and other proprietary information, effects of termination, limitation of liability, indemnification, payment, and applicable law and forum.
33. Applicable Law and Choice of Forum
These Terms are governed by the laws of the State of Utah, USA. All matters arising out of these Terms shall be resolved exclusively by the state and federal courts located in Salt Lake City, Utah. For this purpose, each party consents to personal jurisdiction in such state or federal court and waives any right to dismiss or transfer such action or proceeding because of the inconvenience of the forum. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a>
34. Entire Agreement
These Terms, including all agreements incorporated by reference, constitute the entire agreement between you and Resmark. These Terms supersede and cancel all prior discussions, proposals, agreements and understandings between you and Resmark, whether written or verbal. If these Terms are inconsistent with any of the agreements incorporated by reference, the terms contained in this document will control.
ADDITIONAL TERMS AND CONDITIONS REGARDING THE WAIVERSIGN SERVICE
35. WaiverSign Electronic Contract Storage. We will store Electronic Contracts under the terms of your subscription plan, which is incorporated by reference. Information on your current subscription plan can be found under your account’s subscription settings. The number of stored Electronic Contracts must be reasonable and not unduly burdensome, as determined by WaiverSign in its sole discretion. In storing Electronic Contracts, we use third party storage services such as Amazon Web Services. You may access and copy, save and print Your Content, including Electronic Contracts, a) at any time while your account is active and in good standing (i.e., it has not been suspended or terminated by us for cause), and b) within 30 days after your account is terminated, provided your account is in good standing and granting access will not violate a court or other legal order or the law. Once your account is terminated, Your Content, including Electronic Contracts, will be automatically purged thirty days after the date of termination, subject to these Terms. We will retain the audit log for each Electronic Contract indefinitely. The audit log contains the following information: 1) IP address of the signatory, 2) a date and time stamp of when the electronic signature was created, 3) a unique document identification number, and 4) name of the electronic signatory.
36. Non-Account Holders: View, Sign or Retrieve Electronic Contracts. If you are using the Service to review, sign or retrieve an Electronic Contract that was made available to you by an account holder, we grant you a limited license to use the Service to review, sign, retrieve, or submit an Electronic Contract that was sent to you through the WaiverSign Service. Any and all unauthorized use of the Service will terminate the limited license granted to you.
Further, an Account Owner, including their representative, who submits an Electronic Contract for your signature may have their own terms and conditions, privacy policies and other agreements that apply to you. WaiverSign is not an agent or representative of any of its account holders. WaiverSign shall not be liable for any damage, loss, or injury that you suffer as a result of any problems with any Account Owner, including their Account Administrator and Authorized Users.
37. Reasonable Use Policy. You agree that your use of the Service is subject to our reasonable use policy, as set forth in this paragraph, even if your plan includes unlimited Electronic Contracts. We will deem your use of the Service in non-compliance with our reasonable use policy if, within any thirty (30) day period, your usage exceeds more than 40% of your allocated plan total. If we determine that your use of the Service is not reasonable under your Subscription Plan, we will contact you to discuss your usage. We may require you to upgrade to a higher usage Subscription Plan or terminate your account, depending on the circumstances.
38. Electronic Signatures
Use of Electronic Signatures. By using the WaiverSign electronic signature service, you are voluntarily agreeing to conduct business transactions through the use of electronic signatures in place of physical signatures. You are not required to accept electronic signatures in your business transactions. If at any time you decide you no longer want to accept electronic signatures, stop using WaiverSign and contact all necessary parties to obtain signatures through another method.
Communication with Signatories. By submitting a contract or other document to be electronically signed through the Service, you are authorizing us (i) to obtain electronic signatures from all of the parties you list as recipients and for whom you have provided valid email addresses; and (ii) to distribute copies of the executed contracts to you and such recipients by email or otherwise.
Verification. WaiverSign may request limited personal information from the recipient of an Electronic Contract to verify the recipient’s identity (“Verification Information”). WaiverSign validates this information if the format is correct as entered and takes no other steps to determine if the information is accurate. We make no claim that the Verification Information submitted by the recipient is reliable, accurate or true.
39. Electronic Signatures: Exceptions. You understand that electronic signatures are void where prohibited by law. Although electronic signatures are valid in numerous contexts, certain types of agreements governed by statutes and regulations are excepted from electronic signature laws. These include wills, codicils and testamentary trusts; state commercial law; notice of utility termination; real property default and foreclosure; termination of insurance benefits; product recall and safety notices and others. Further, some agencies have issued specific regulations that apply to electronic signatures and electronic records, including regulations on how long such records must be retained. WaiverSign does not determine, and shall not be responsible for determining, whether any electronic contract is an exception to electronic signature laws, subject to agency regulations, or can be validly signed electronically.
ADDITIONAL TERMS AND CONDITIONS REGARDING SUPPLIERS AND SELLERS
The following additional terms apply to Suppliers’ and Sellers’ use of the Service:
40. Scope of Service. Suppliers provide Product, which Suppliers make available to Sellers through the Service to, among things, view, customize, offer to sell and sell, book or order; Sellers offer to sell and sell Product to the Customers directly and through third parties in exchange for agreed-upon commissions or net rate discounts; Resmark provides a platform that connects Suppliers and Sellers and facilitates such activities; and, Suppliers and Sellers are willing to engage in such activities through Resmark and Resmark is willing to facilitate such activities by supplying the Service. Sellers are entitled to market, promote and sell Products to Customers through the Service, including a Resmark powered site.
41. Product Net Rates and Commissions. Suppliers and Sellers are solely responsible for setting the Product price, as well as any taxes and fees, through their account. Resmark only supplies a platform for Suppliers and Sellers to find each other, work together and easily communicate to offer and sell Products to Customers. Resmark is not involved in and is not responsible for agreements between Sellers and Suppliers on commissions, payments and the timing thereof, and the like. Resmark is not responsible for any payment disputes between Sellers and Suppliers.
Suppliers and Sellers shall be responsible for and agree to indemnify Resmark for any sales, use, or other taxes due by reason of the sale of the Product. Suppliers and Sellers may increase prices at any time by adjusting their prices in their Resmark account. However, Suppliers and Sellers agree to honor all Product Purchases and orders made at the prices/rates in effect when the purchase or order was made. Suppliers and Sellers agree to promptly notify all relevant parties, including Customers, of any changes to a purchased Product.
42. Product Information. Suppliers and Sellers will provide all information needed to promote Product and to make and confirm Product purchases. The Service may be used to list Products for others to resell (including any entities owned by or affiliated with Resmark) to Customers at an agreed-upon rate (e.g., travel agents, tour desks, tour operators, destination marketing organizations, online booking/travel agencies and aggregators (e.g., Expedia), roaming agents, travel marketplaces (e.g., Sabre)). Pre-set, fillable forms are available to produce Product listings. On these forms, Suppliers and Sellers may supply information about the product>
You agree that in creating a Product listing and in offering and selling Product, you will not impose any requirements that discriminate or are unlawful. In addition, you will not use the Service to request that anyone engage in any prohibited or unlawful activity or request any improper information. Further, you may not require the purchase of travel insurance in order for a Product to be purchased. Customers must be able to opt-out of purchasing any travel insurance that is offered.
43. Product Customization. Supplier agrees that Seller, when given Supplier’s permission, can customize product descriptions in any manner that complies with all terms of this Agreement and give them express permission to do so. Sellers may change the name of the Product, set a gross price and other financial terms that govern their transaction with the Customer, add, remove or replace images with their own or images that are properly licensed, revise the Product description, and bundle the Product with other Products and offerings. Sellers cannot alter the offered dates, itinerary, etc.
44. Remittals. Suppliers and Sellers are responsible for collecting the Purchase Price, including Services Fees under the Service. Resmark will bill Suppliers and Sellers for the amount of the Service Fees, whether they are passed along to the Customer, absorbed by the Supplier or Seller, and/or assessed by Resmark under a monthly flat fee arrangement.
45. Taxes. All taxes, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of Resmark) which are imposed by or under the authority of any government or any political subdivision thereof on the Service provided by Resmark, including relating to any bookings, under these Terms shall be your responsibility and shall not be considered a part of, a deduction from or an offset against any fees paid or due to Resmark. We cannot and do not offer tax and related advice. IRS regulations regarding federal tax reporting requirements may require us or our third-party payment processor to collect IRS Form W-9 information from you in the United States. If required, our third party payment processor will issue any required 1099s to you. Where applicable, or based upon a commercially reasonable request, we may issue a valid VAT invoice to you. “Tax” or “taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST) and other similar municipal, state and federal or other withholding and personal or corporate income taxes.
46. Supplier and Seller Terms and Conditions and Policies. You agree to include your cancellation and refund policy with each Product, and note any other applicable agreements (e.g., Booking Terms and Conditions and Liability Waiver), with each product if the Customer is required to accept them to make a Purchase. You may also include links to your website where the policies are located.
47. Order Notifications and Purchase Confirmations. You can add email addresses to any product listing so that an order notification is received and/or sent to the appropriate party (e.g., Seller/User) when a Product is purchased, cancelled or supplemented. Product purchase confirmations will be automatically sent to Customers who purchase online and supply a valid email address. Sellers may also send purchase confirmations to the Customer.
48. Incentives and Donations. Resmark may from time to time run incentive programs for successfully inviting or referring others to join the Service. Program details will be communicated to Sellers and Suppliers by email or within the application. Under our Referral Program (“Referral Program”), active Resmark Sellers and Suppliers with accounts in good standing may earn money or account credit by referring to us first time, new Suppliers and/or Sellers who create a paid Resmark account and successfully complete at least one non-cancelled order and incur Service Fees as defined herein. The referring company must be an active Resmark client in good standing to receive a referral bonus. Resmark reserves the right to amend or cancel any incentive or referral program at any time. Resmark’s incentive and referral programs are not valid where prohibited by law, or in any jurisdiction whose laws materially affect the terms of this offer. The Referral Program may not be combined with other Resmark referral programs or incentives. If you have elected to participate in a Referral Program, that information, including referral payment terms, will be stored in your account’s subscription settings.
Resmark may also donate a portion of its Service Fees collected from Sellers and Suppliers to certain charities or specific causes. See Resmark’s website for more information.
49. Changes in Price. Resmark may at any time change the price of the Service (in its entirety or in part). Resmark may increase or add new charges or fees for the Service (in its entirety or in part) by giving you 30 days’ advance notice. If you do not agree to any such price changes, then you must cancel your account and stop using the Service. Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change.
50. Resmark Powered Website and Shopping Cart, and Related License. Through the website, Resmark provides you with the ability to create and operate a Resmark-powered website to market and sell Products (“Resmark-Powered Site”), which will be a subdomain of Resmark’s domain and that you may configure to link to your website. The Resmark-Powered Site will be assigned a unique URL that contains a name that you select. The Resmark-Powered Site will display Resmark’s trademarks and other intellectual property. You agree that that the Resmark-Powered Site shall display the “Powered by Resmark” mark or another similar mark specified by Resmark. You agree not to hide, obstruct or alter Resmark’s trademarks, including the “Powered by Resmark” mark. The Resmark-Powered Site will be linked to your account so that all transactions and sales can be correctly connected and applied to your account. By using the Resmark Powered Site, Customers shall be able to purchase Products directly.
Alternatively, you may embed an “add to cart” button or similar marketing widget supplied by Resmark into your own website to facilitate a Product Purchase through the Service.
In the event we, in our sole discretion, determine that your Resmark-Powered Site is inappropriate, we may either notify you of any changes to be made or alternatively may terminate this Agreement upon thirty (30) calendar days’ prior written notice to you. In the event we notify you of changes to be made to the Resmark-Powered Site and such changes are not made within seven (7) calendar days, we may immediately terminate this Agreement upon written notice to you. Nothing in this paragraph affects our ability to immediately suspend and/or terminate your account, including your Resmark-Powered Site, without notice as provided elsewhere in this Agreement.
Resmark grants you a non-exclusive, non-transferable worldwide right and license: (i) to access Resmark through your Resmark-Powered Site and through the Resmark API; and (ii) to use the Resmark logos, trade names, trademarks and similar identifying material (collectively, the "Licensed Materials") that Resmark provides to you solely in connection with your Resmark-Powered Site. You may not alter, modify or change the Licensed Materials in any way and is only entitled to use the Licensed Materials during the Term of this Agreement. This license will terminate immediately upon termination of this Agreement. Resmark may revoke the license at any time by giving you thirty (30) calendar days’ prior written notice.
Upon termination of this Agreement for any reason, you agree to immediately remove all HTML links from your website to your Resmark-Powered Site.
51. Resmark Domains. Your domain shall not contain the word “Resmark” except in the case of a Resmark-Powered Site and you will not purchase any domain or other right or otherwise contract with a third party to exploit Resmark’s name for the purpose of having your website appear as a search result or for any other reason.
52. Resmark API. The Resmark Application Interface is owned and operated by Resmark. If you use the Resmark API, you will be able to, among other things, access and view the Product listings and other content in the Service, make purchases, and allow Customers to make purchases and related transactions. You agree not to modify the data from the API in any way; modify the API’s link structure; or modify Resmark’s trademarks, logos and other intellectual property.
53. License for Marketing and Advertising Purposes. Suppliers and Sellers grant to Resmark a non-exclusive, non-transferable worldwide right and license to use Supplier's and Sellers’ name, title, trademark, logo and similar identifying material in to provide, advertise, market, and promote the Service. This license does not grant Resmark the right to disclose the relationship between a Reseller and Supplier that is not otherwise public. This license will terminate immediately upon termination of this Agreement except Resmark may in its sole discretion continue to identify you as a user in such material.
54. Relationship of the Parties. Neither party may in any manner misrepresent or embellish the relationship between it and the other, nor may a party express or imply any relationship or affiliation between it and the other party and between it and any other person or entity except as expressly permitted by this Agreement. Each party is an independent contractor and nothing in this Agreement shall be construed to create or imply a joint venture, mandate, partnership, principal-agent or employment relationship between the parties. No party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other and neither shall have any power or authority to bind the other or to assume or create any obligation or responsibility express or implied on the other’s behalf or in its name, nor shall either represent to any one that it has such power or authority.
ADDITIONAL TERMS AND CONDITIONS REGARDING CUSTOMERS
55. Customer Purchases. If you are a Customer, you may purchase Product through a Resmark-Powered Site, a website that has integrated the Resmark API and/or shopping cart software to facilitate product Purchases and other transactions, through a sale or booking agent who will enter your details into the Resmark Service, or through a third-party service that is connected to the Resmark API.
Further, the Seller and Supplier are solely responsible for honoring any purchases and making available any Product purchases through the Service. You agree and understand that any Product that you purchase is subject to Seller’s and Supplier’s own terms and conditions and that purchase is contingent upon you agreeing to accept any terms and conditions and any other agreements that they require to make a purchase.
56. Purchase Price. In consideration for using the Service, you agree to pay the total amount of your purchase, including any related charge such as deposits, taxes and other fees (“Purchase Price”). The Purchase Price for the Product is set by the Seller or Supplier. Resmark may charge a Service Fee for the Purchase to the Seller or Supplier, which may be reflected in your Purchase. Seller, using a third party payment gateway that is accessible through the Service, will charge the full amount of the Purchase Price to the Customer’s method of payment at the time the Purchase is made. The Seller and/or Supplier are solely responsible for honoring any purchases made through the Service. You acknowledge and agree that Resmark is not responsible for any fees or charges assessed by Customer’s financial institution in connection with any Purchase.
56. Purchases: Pre-authorization and Method of Payment. You give the Seller and/or Supplier the right to obtain a pre-authorization using your payment method. Contact the Seller and/or Supplier for their pre-authorization policy.
57. Donations. Some Sellers and Suppliers may pledge to donate a portion of the funds received from Product purchases to a specific cause or charity. We are not responsible for the selection of any particular charities and are not responsible for the donation, including if and when it is made.
58. Refunds and Cancellations. The Seller’s and Supplier’s cancellation and refund policies shall apply to any cancellation of a Purchase. Information about refunds and cancellations are either available in the Product policies or directly from the Seller and/or Supplier. Resmark is not responsible for and has no role in any cancellations and/or refunds of Products purchased through the Service. Refunds and cancellations are between the Seller, Suppliers, and/or Customers. Nothing in these Terms obligates Resmark to provide any refund or credit to a party. Applicable local law may vary this policy.
59. Taxes. All taxes, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of Resmark) which are imposed by or under the authority of any government or any political subdivision thereof on the Service provided by Resmark under these Terms shall be your responsibility.
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