THIS application/agreement (“Agreement”) is made by and between CFE Systems , LLC(“CFE”) dba Five Star Marketing Club, and Participant in consideration of the mutual benefits of the promises and restrictions set forth herein, the Parties agree as follows:
1. Duties of CFE: CFE agrees to:
a) Maintain the necessary hardware to host web services, email services, and database services as required to support Participant’s Marketing Program for the Account Services in the membership package purchased by the Participant.
b) Provide Startup Program services as described for the membership package purchased by the participant.
c) Provide email support during normal business hours.
2. Participant agrees to all Policies and Procedures located at https://fivestarmarketing.club/main/legal/policies which are incorporated herein and may be amended from time to time.
3. Term & Termination: Either party may terminate this Agreement without cause by providing a 30-day notice. CFE may also immediately terminate this Agreement if, in its sole discretion, CFE concludes that Participant is engaged in illegal activities or the sale of illegal or harmful goods or services or is engaged in activities or sales that may damage the rights of CFE or others or Participant is violating the CAN-Spam Act.
4. Payments: All payments for fees earned or owed will be collected and transferred electronically via PayPal or other designated billing processor. All monthly fees pursuant to this Agreement are non-refundable and are subject to change.
5. Use of Trademarks and Names: Participant hereby grants CFE a world-wide, royalty-free, non-exclusive license to use Participant’s name and logo in the CFE Directories and other general information, advertisements or solicitations. This license exists only for as long as Participant remains a customer and shall be terminated when Participant’s Marketing Program host by CFE is deactivated.
6. Participant Promotions: CFE and/or its Affiliated Publishers have the right, but not the obligation, to reject any advertising copy. Participant is solely responsible for the content provided. Participant represents and warrants they have the right and authority to publish all content provided. Furthermore, Participant indemnifies CFE and its Agents from any claims that may arise from any content provided by Participant.
7. ARBITRATION: The parties agree that any controversy or claim arising out of or relating to this Agreement, or any dispute arising out of the Interpretation or application of this Agreement, which the parties hereto are unable to resolve, shall be submitted and finally resolved and settled exclusively by arbitration in Lincoln, Nebraska, by a single arbitrator under the American Arbitration Association’s Commercial Arbitration Rules and according with the substantive laws of the State of Nebraska. The parties severally recognize and consent to the jurisdiction over each of them by the court of the State of Nebraska. The cost of arbitration shall be divided equally between the parties. The Agreement is made in accordance with and governed by the laws of the State of Nebraska.
8. DISCLAIMER OF WARRANTIES AND LIABILITIES: THE SERVICE AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ACCOUNT SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND PARTICIPANT MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS. PARTICIPANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT ITS OWN DISCRETION AND RISK AND THAT PARTICIPANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. CFE, AND ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF CFE IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM PARTICIPANT’S USE OR INABILITY TO USE THE ONLINE SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SERVICES OR THE SOFTWARE. CFE’S LIABILITY TO PARTICIPANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY PARTICIPANT TO CFE OVER THE COURSE OF THE EXISTING ONE YEAR TERM.
9. Waivers: Waiver by either party of any breach of any provision of this Agreement or failure to insist upon strict compliance with any provision of this Agreement shall not operate or be construed as a waiver of such a provision or any other provisions.
10. Representation and Indemnification: Participant understands that CFE makes no representations, warranties, or guaranties, express or implied, of any kind including, but not limited to, any claims for earnings or benefits from participation in CFE Marketing Programs. Participant further agrees to indemnify and hold CFE, its officers, directors, owners, agents, employees, affiliates, licensors, and licensees harmless from any actions, causes of actions, claims, damages, liabilities, and expenses, including, without limitation, regulatory penalties, attorney fees and litigation cost arising from purchase or use of Participant’s products, or any breach or failure to perform by Participant of these Terms and Conditions, or the failure of a third party provider to Participant’s satisfaction, or from any Member related transaction with Participant, or from Participant’s gross negligence, fraud or misrepresentation, or violation of any government laws, regulations or rules. Under no circumstances shall CFE be liable for any lost profit, or for any special, consequential, exemplary, or punitive damages.
11. Force Majeure: No party shall be liable for any failure to perform its obligations in connection with this Agreement, if such failure results from any act of God, riot, war, civil unrest, strike, boycott, governmental action, flood, earthquake, or other cause beyond such party’s reasonable control including any mechanical, electronic, communication failure, or any failures of third parties to perform their obligations.