Updated 31 August, 2021
This document is an Agreement between you and Marketerr. By purchasing and using a Marketerr Product, you agree to abide to the terms of this Agreement at all times while you are using the Marketerr Product. The purpose of this Agreement is to govern the terms relating to your use of any Marketerr Product to maintain the integrity and quality of Marketerr and our products and services. As used in this Agreement:
- “Marketerr Marks” means any banner, banner advertisements, button links, or text links to the Marketerr Site(s), containing Marketerr’s trademarks, service marks, trade names, logo and words identifying Marketerr.
- “Marketerr Product” means any product or service provided by Marketerr.
- “Marketerr Site(s)” means any websites that are owned and operated by Marketerr such as, but not limited to, Marketerr.com.
- “Marketerr™”, “Marketerr.com”, “we”, “our” or “us” means Marketerr (or its beneficial or legal owner as the context may require). Marketerr is a registered trademark and all references to Marketerr shall be read as Marketerr.
1. Marketerr Products & Services
1.1. You agree not to use any Marketerr Product in connection with:
- (a) promoting or selling any of these types of content: libellous, defamatory, obscene, pornographic, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or warez, or that offer any illegal goods or service, or link to any other websites that do so;
- (b) engaging in fraudulent, illegal or non-bona fide activities including any scheme commonly referred to as a pyramid selling scheme;
- (c) infringing or misappropriating any intellectual property right of a third party;
- (d) engaging in spamming, indiscriminate advertising or unsolicited commercial email;
- (e) engaging in cyber-squatting or typo squatting;
- (f) undertaking any activities or making any representations in connection with Marketerr which could deceive or mislead any person or which might otherwise be in breach of the Fair Trading Act 1986 (or any amendment of the Act) in New Zealand or any other relevant legislation in the jurisdiction in which you are advertising; and/or
- (g) advertising or promoting Marketerr or any Marketerr Product using reference or claims to any overhyped or excessive income/earning potential through use of any Marketerr Product. Any reference to earning potential must be factual and relate only to your own earnings/income through use of a Marketerr Product (and must not otherwise be misleading in any way). However, it is noted that Marketerr does not encourage promotion by any reference to earning potential.
2. Statement of Investigation
2.1. Independent Evaluation: You acknowledge that you have read this Agreement and agree to all of its terms and conditions. You acknowledge that you have independently evaluated the desirability of purchasing and using the Marketerr Product and are not relying on any representation, guarantee, or statement other than as set out in this Agreement.
2.2. Jurisdiction: You acknowledge and understand that as well as being bound by this Agreement, you may be subject to laws in your own jurisdiction, including (but not limited to) laws and regulations relating to affiliate marketing, referral selling, privacy and information gathering, electronic communications, fair trading, tax, financial reporting and company or other corporate reporting. You are responsible for compliance with the laws of your own jurisdiction and you should seek independent legal and financial advice in your jurisdiction to ensure that your use of any Marketerr Product does not breach the laws of your jurisdiction.
2.3. Marketerr Partner Program(s): You acknowledge and understand that you are NOT required to enter into or participate in Marketerr’s partner program in connection with any use of a Marketerr Product.
3. Obligations Regarding Your Use
3.1. You are solely responsible for your use of any Marketerr Product. Marketerr will not be responsible for, and disclaims all liability for your misuse of any Marketerr Product, including any use in breach of this Agreement.
3.2. To the extent permitted by law, you agree to indemnify Marketerr from and against any losses, damages, costs, charges, expenses and other liabilities (including legal fees on a solicitor/client basis), incurred by or awarded against Marketerr as a result of your misuse of any Marketerr Product, including but not limited to those instances of misuse as noted in clause 1 of this Agreement. You agree that:
- (a) you will, as soon as reasonably practicable, notify us in writing of any known or reasonably suspected claim;
- (b) you will not make any admission of liability or agree to any settlement or compromise in relation to a claim, without our written consent;
- (c) you will, at your own expense, conduct any negotiations, proceedings and/or litigation that you deem appropriate provided that you keep us notified; and
- (d) you will immediately modify or replace the infringing material so as to avoid the infringement or alleged infringement from reoccurring.
4. Payment Terms
4.1. Payment Terms: The details of payments (if any) required in relation to any Marketerr Product or on-going services provided by Marketerr, can be found on the Marketerr product page(s).
4.2. Product/Service Trials: Depending on the product or service the customer has purchased, we may provide you with a 7, 10, 14 or 30 day trial access. Depending on the product/service, our trials could be provided for free, or for a one-time payment of $1. You agree that Marketerr will automatically process the upgrade payment or subscription after the trial period expires, unless you cancel your trial before it expires. At Marketerr we make it easy to manage your account and subscription via our secure online billing portal where you can cancel your trial or subscription or by contacting our support team via our help center. The details and terms of trials (if any) provided in relation to the product or service provided, can be found on the product sales and/or checkout page. Marketerr will notify you, via email, 7 days prior and again 3 days prior to upcoming payments, when a trial expires and/or subscription renewals.
4.3. Failed Payments: Should a payment fail, such as a subscription rebill or a payment after a trial period, Marketerr will attempt to retry to process the payment up to 4 times. Marketerr will notify the customer via the email address on file, about any such failed payments and will provide full details on how to update your payment details via our secure online billing portal if needed. You agree that Marketerr may downgrade your account and/or subscription in order to successfully process your payment. If a payment and/or rebill fails 4 times, Marketerr will deactivate your subscription, account, product and/or service access.
4.4. Refunds: Depending on the product or service the customer has purchased, we generally provide a 30-day refund guarantee period on purchases. The details of refund guarantees (if any) in relation to any Marketerr product or on-going services provided by Marketerr, can be found on the Marketerr product’s page. You agree that strictly no refunds will be provided if:
- (a) the customer has been provided with a trial of the product or service prior to purchase;
- (b) a custom set-up service was purchased, such as our white glove app set up service, for example;
- (c) a custom development service has been purchased;
- (d) a subscription plan has been purchased directly, without a trial, refunds will only be provided on the first payment term. (For example, if a monthly subscription has been purchased, without trial access first, only the first month’s payment can be refunded within 30 days of the transaction date. Any subsequent payments after that do not qualify for a refund.
5.1. No warranties or representations: Except as expressly set forth in the Agreement, Marketerr makes no representations or warranties, and to the maximum extent permitted by law, expressly disclaims any representations or warranties, express or implied, regarding any Marketerr Product, Marketerr Site, Marketerr trademarks or any other service, content, tools, or related documents or materials (in electronic form or otherwise) provided for in this Agreement, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose, title or non-infringement and implied warranties arising from a course of dealing or course of performance or trade usage. Marketerr expressly disclaims any representation or warranty regarding the performance, availability, functionality, or any other aspect of any Marketerr Product.
5.2. Third party service providers: Some Marketerr Product integrations may rely on other SaaS providers (or their products), mobile app developer platforms/programs such as the Apple Developer Program or Google Play Console, marketing and/or automation platforms, in order to function. You may be required to pay a subscription, membership, licence or other fee in relation to that other website or software. Where this is the case, Marketerr will make this clear to you before you acquire the Marketerr Product. Marketerr is not responsible for the performance of any other website or software and you acquire such subscription, membership or licence solely at your own risk. You acknowledge that to the extent that you are unable to access or use such other website or software, including due to your non-payment of any applicable fees, or termination of your agreement with the relevant provider, you may be unable to use the Marketerr Product you have purchased and no refund or subsidy will be provided by Marketerr.
5.3. No guarantee of earnings: Every effort has been made to accurately represent Marketerr, its products and services and the Partner Program, and their potential. However, we are NOT responsible for any of your actions and no guarantees are made that you will achieve any results from our website, or the ideas or techniques in our videos or other marketing materials. Any examples we give of actual earnings or savings, or examples of actual results (for example, conversion rates) are factual and can be supported, but are illustrative only, and are not representations that the same results will necessarily be achieved by you. Your level of success in attaining the results claimed in our materials depends on the time you devote to your own digital business, ideas and techniques mentioned, your finances and overheads, your network, and your own knowledge and various skills. We do not purport that any of our products or services are, or should be marketed as a “Get Rich Scheme” and or “Business Opportunity”. We only support and advocate sustainable and value-based digital and mobile marketing.
5.4. Not uninterrupted: You understand that the operation and/or your use of any Marketerr Product may not be uninterrupted or error free, and may have errors or omissions. You agree that Marketerr will not be liable for any interruptions or errors in using any Marketerr Product.
5.5. In trade: You confirm and acknowledge that to the extent you are using any Marketerr Product in trade, the provisions of, and guarantees contained in, the Consumer Guarantees Act 1993 (New Zealand) and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 (New Zealand) do not apply.
6. Breach of the Agreement
6.1. Marketerr reserves the right to:
- (a) Immediately cease providing any on-going services, including any subscription, in relation to any Marketerr Product (if any) and/or terminate any licence(s) or other rights granted pursuant to this Agreement upon breach of this Agreement. Within 24 hours after termination (whether by you or Marketerr), you must remove any Marketerr Marks from any of your websites or any other content, tools or related documents or materials (if any) and you must destroy or erase from computer memory or any other storage device any items you might have that contain Marketerr Marks or Marketerr Confidential Information (as defined in this Agreement).
- (b) Notify any host provider of your Marketerr Product, including Karta, Clickfunnels, AppSprout, Apple Developer and/or Google Developer, of termination of this Agreement. The host provider may elect to enforce any separate rights or actions it has under any separate agreement with you in relation to your use of the Marketerr Product or associated services.
7. Modification of Terms and Conditions
7.1. Marketerr may modify any of the terms and conditions contained in this Agreement and it will be your full responsibility to check the terms of this Agreement on a regular basis. The current and accurate terms of this Agreement will be available on our website at all times. You acknowledge that by continuing to use any Marketerr Product, you will continue to be bound to the current version of the terms of this Agreement (the “current version”) and, unless stated in the current version, all previous versions shall be superseded by the current version. You shall be responsible for reviewing the then current version each time you visit the Marketerr Site.
8. Relationship of the Parties
8.1. You and Marketerr are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Marketerr. You understand that you do not have authority to make or accept any offers or make any representations on behalf of Marketerr.
9.1. Access to Confidential Information: During the term of this Agreement, you may have access to certain Confidential Information (as defined below), you agree:
- (a) not to disclose any Confidential Information to any third parties (other than your employees and/or consultants reasonably requiring such Confidential Information for the purposes of this Agreement who are bound by obligations of nondisclosure and limited use at least as stringent as those contained in this Agreement) without the express prior written consent of Marketerr;
- (b) not to use any Confidential Information for any purposes except carrying out your rights and responsibilities under this Agreement; and
- (c) to keep the Confidential Information confidential using the same degree of care you use to protect your own confidential information, as long as you use at least reasonable care.
9.2. Meaning of Confidential Information: For purposes of this Agreement, Confidential Information means any and all information in written, representational, electronic or other form relating directly or indirectly to the present or potential business, operation or financial condition of Marketerr (including, but not limited to, marketing plans, customer and supplier lists and product data) excluding any such information which at the relevant time:
- (a) is known to the public (through no act or omission of you in violation of this Agreement);
- (b) is lawfully acquired by you from an independent source having no obligation to Marketerr; or
- (c) was known to you prior to its disclosure under this Agreement.
10. Limitation of Liability
10.1. To the extent permitted by law, Marketerr will not be liable for lost profits, lost business opportunities or any other indirect, special, punitive, incidental, or consequential damages arising out of, or related to, this Agreement or the use of any Marketerr Product, even if Marketerr has been advised of the possibility of such damages, including loss of data or loss or interruption of services or communications. Further, Marketerr’s aggregate liability for direct damages arising under this Agreement will not exceed the amount of the total fees paid or payable to you under this Agreement (if any).
10. Miscellaneous Provisions
11.1. Governing Law: This Agreement will be governed by the laws of New Zealand, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the courts located in New Zealand and you irrevocably consent to the non-exclusive jurisdiction of such courts.
11.2. No Assignment: You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and enforceable against the parties and their respective successors and assigns.
11.3. No waiver: Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
11.4. Amendment: You agree that Marketerr reserves the right to change and alter these terms and conditions at its sole discretion and to apply any changes or alterations retroactively as Marketerr sees fit.
11.6. Injunction: The parties acknowledge that monetary damages will not necessarily be an adequate remedy for breach of this Agreement and Marketerr may, in addition to any other legal or equitable remedies, seek an injunction, specific performance or any other legal or equitable relief against such breach or threatened breach without the necessity of posting any bond.
11.7. Invalidity: In the event that any provision of this Agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of this Agreement. You and Marketerr agree to negotiate in good faith or to permit a court or arbitrator to replace any provision of this Agreement held invalid, unenforceable or illegal with a valid provision that is as similar as possible in substance to the invalid, unenforceable or illegal provision.
11.8. Force Majeure: In no event shallMarketerr have any liability for any delayed performance or non-performance by Marketerr which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of Marketerr.