Terms and Conditions
Agreement between User and PTI Marketing Technologies®, Inc.
Welcome to PTI Marketing Technologies®, Inc. (“PTI”). PTI’s services are comprised of various web sites, application software, utility & download software, third party software, communication forums, sales tools and services provided or operated by PTI Marketing Technologies® Inc. or its business partners (“Partners”). These include, but are not limited to: MarcomCentral®, FusionPro® and other software products, whether currently available or future products or releases, along with the www.fusionpro.com, www.pti.com and www.marcom.com websites as well as other web sites we may add in the future (“PTI Applications”).
In addition, when using particular PTI applications, web sites or services, you shall be subject to any posted guidelines or rules applicable to such sites or services which may be updated by PTI from time to time in its sole discretion. All such guidelines or rules are hereby incorporated by reference into these TOU. In the event that any of the terms, conditions, and notices contained herein conflict with such guidelines or rules, such guidelines and rules shall govern but solely with regard to such PTI applications, web sites or services. Note that your use of any FusionPro® Software, including but not limited to FusionPro®Expression, FusionPro®VDP Creator, FusionPro® VDP Designer, FusionPro®VDP Producer, and FusionPro®VDP Server, is governed by the terms of a software license between you and PTI, which you must accept before purchasing FusionPro®License Keys required for each installation of FusionPro® Software. FusionPro® License Keys may be purchased at the FusionPro® Store. A copy of the FusionPro® Subscription Agreement may be found at www.Fusionpro.com/FusionPro-Subscription-Agreement/.
These TOU govern your use of the PTI Applications. If you have entered into a written and pen-signed agreement regarding the subject matter hereof, that agreement will supersede these TOU to the extent of any conflict.
You agree to be bound by these TOU, and indicate such agreement by accessing and using the PTI Applications and services. If you do not agree to these TOU, do not access and use the PTI Applications and services and resources enabled via the PTI Applications (“Services”). If you are using the PTI Applications and Services on behalf of a company, entity, or organization, you represent and warrant that you are an authorized representative of such company, entity, or organization with the authority to bind it to these TOU.
- Permitted Use. Subject to these TOU, PTI hereby grants you the right to access and use the PTI Applications you have ordered and paid for or have otherwise been provided with access to by PTI. Unless otherwise specified herein, or agreed-upon by PTI in writing, your right to use and access the PTI Applications is limited solely to your personal, non-commercial use. You acknowledge and agree that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the PTI Applications are owned by PTI or PTI’s licensors. The provision of the PTI Applications to you does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. PTI and its licensors retain all rights with respect to the PTI Applications except the limited license expressly granted to you in these TOU. You agree not to duplicate, publish, modify, or otherwise distribute the material on the PTI Applications unless specifically authorized in writing by PTI to do so. You agree not to frame, or assist third parties in framing, any of the web pages contained in the PTI Applications. Such framing is strictly prohibited under these TOU. The content and software on the PTI Applications are the proprietary property of PTI and/or its suppliers and Partners and are protected by U.S. and international copyright and other intellectual property laws. PTI®, PTI Marketing Technologies®, MarcomCentral®, FusionPro® and FusionPro Expression® are trademarks of PTI Marketing Technologies® The names of actual companies and products listed on the PTI Applications may be the trademarks of their respective owners.
- Open Source Software. Certain software code incorporated into or distributed with certain PTI Applications may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, and the Apache License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in these TOU, the Open Source Software is not licensed under the terms and conditions of these TOU and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
- Links to Third Party Sites. The PTI Applications may contain links or produce search results that reference links to third party web sites (“Linked Sites”). PTI has no control over these Linked Sites or the content within them. PTI cannot and does not guarantee, represent, or warrant that the content contained in the Linked Sites, including, without limitation other links, is accurate, legal, and/or inoffensive. PTI does not endorse the content of any Linked Site, nor do we warrant that a Linked Site will not contain computer viruses or other harmful code that can impact your computer or other web access device. In addition, the PTI Applications contain functionality which enables you to directly link to Linked Sites. By using the PTI Applications to search for or link to another site, whether directly or indirectly, you agree and understand that any and all such use is entirely at your own risk, and that you may not make any claim against PTI for any damages or losses whatsoever resulting from such use. When you visit a Linked Site, the applicable third party’s terms and policies apply. We encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Linked Site. However, if you experience a problem with a Linked Site contained within the PTI Applications, please contact us and we will investigate the link and take appropriate action in our sole discretion.
- No Unlawful or Prohibited Use. As a condition of your use of the PTI Applications, you warrant to PTI that you will not use the PTI Applications for any purpose that is unlawful, harmful to any person, or prohibited by these TOU. You agree not to use the PTI Applications in any manner which could damage, disable, overburden, or impair the PTI Applications or interfere with any other party’s use of the PTI Applications. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the PTI Applications.
- Use of PTI Applications. If you submit any information or content to or through the PTI Applications (“Content”), including any participation in any chat rooms, bulletin boards, or other forum (collectively “Community Services”) within the PTI Applications, you represent and warrant that all such Content, including without limitation discussion posts, chat posts, web links, advertisements, articles, white papers, and reviews:
(a) shall not be false, inaccurate or misleading;
(b) shall not be fraudulent;
(c) shall not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
(d) shall not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, privacy, or false advertising);
(e) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
(f) shall not be obscene or contain child or other pornography;
(g) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and
(h) shall not create liability for PTIs, or cause us to lose (in whole or in part) the services of our ISPs or other suppliers and Partners.
PTI has no obligation to monitor the Community Services. However, PTI reserves the right to review materials posted to a Community Service and to remove any materials in its sole discretion. PTI reserves the right to terminate your access to any or all of the Community Services at any time without notice for any reason whatsoever. PTI does not control or endorse the content, messages, or information found in any Community Service, and, therefore, PTI expressly disclaims any liability with regard to the Community Services and any action resulting from your participation in the Community Services. All such participation is solely at your own risk. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other users of the PTI Applications (including the Community Services) and the Linked Sites. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- License to Submitted Content. You hereby grant, and you represent and warrant that you have the right to grant, to PTI an irrevocable, nonexclusive, perpetual, royalty-free and fully paid, worldwide license to reproduce, license, distribute, adapt, publicly display and perform, modify, prepare derivative works of, incorporate into other works, and otherwise use your any and all information and content that you provide to the PTI Applications (“Your Content”), and to grant sublicenses of the foregoing. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to Your Content. Notwithstanding the foregoing, the ownership and rights of the respective parties regarding any content provided by you to PTI that is defined as “Customer Content” in any applicable sales agreement that may be executed between you and PTI shall be in accordance with the terms of such sales agreement. If you provide PTI any feedback or suggestions regarding the PTI Applications (“Feedback”), you hereby assign to PTI all rights in the Feedback and agree that PTI shall have the right to use such Feedback and related information in any manner it deems appropriate. PTI will treat any Feedback you provide to PTI as non-confidential and non-proprietary. You agree that you will not submit to PTI any information or ideas that you consider to be confidential or proprietary.
- Warranty Disclaimer. PTI does not promise that the PTI Applications will be error-free, accurate, uninterrupted, nor that the PTI Applications will provide specific results from your use of any content, search or link on them. The PTI Applications and all content contained within them are delivered on an “AS IS” and “AS AVAILABLE” basis. PTI does not warrant or represent that files you download or use from the PTI Applications will be free of viruses or other harmful features. PTI DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT OR NEGLIGENCE, WILL PTI, OR ITS AFFILIATES AND PARTNERS, BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) THAT ARISE OUT OF OR ARE RELATED TO YOUR USE OF THE PTI APPLICATIONS OR RELATED SERVICES. IN NO EVENT SHALL PTI’S AGGREGATE LIABILITY, OR THE AGGREGATE LIABILITY OF PTI’S AFFILIATES AND PARTNERS, TO YOU FOR ANY LOSS, DAMAGE OR CLAIM RELATED TO OR ARISING OUT OF THE PTI APPLICATIONS OR RELATED SERVICES EXCEED THE GREATER OF THE FOLLOWING: (A) TOTAL AMOUNTS PAID BY YOU TO PTI FOR ACCESSING THIS SITE OVER THE PAST TWELVE MONTHS; OR (B) FIFTY U.S. DOLLARS ($50.00).
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE PTI APPLICATIONS TO ANY OTHER SERVER OR LOCATION FOR FURTHER USE, REPRODUCTION OR REDISTRIBUTION IS EXPRESSSLY PROHIBITED, UNLESS SUCH USE, REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE APPLICABLE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE.
PTI MAY MAKE AVAILABLE, AS PART OF THE PTI APPLICATIONS, CERTAIN TOOLS AND UTILITIES FOR USE AND/OR DOWNLOAD. PTI DOES NOT MAKE ANY WARRANTIES, REPRESENTATIONS, OR OTHER ASSURANCES OF ANY NATURE WHATSOEVER REGARDING SUCH TOOLS AND UTILITIES, INCLUDING, WITHOUT LIMITATION, REGARDING THE ACCURACY OF THE RESULTS OR OUTPUT THAT DERIVES FROM ANY USE THEREOF.
- Additional Representations and Warranties. You represent, warrant, and covenant that (a) you have the power and authority to enter into these TOU; (b) you are at least eighteen (18) years of age; and, (c) you will only use the PTI Applications in accordance with these TOU.
- You agree to indemnify and hold PTI and its Partners, affiliates, officers, directors, agents, and employees harmless from any liability to third parties, including reasonable attorney’s fees, arising from or related to your breach of these TOU, or the documents it incorporates by reference, or your violation of any law or the rights of any third party.
- Designated Agent for Alleged Copyright Infringement. PTI respects the intellectual property of others, and we ask you to do the same. In connection with the PTI Applications, we have adopted and implemented a policy that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online services who are repeat infringers of intellectual property rights, including copyrights. If you believe some content on the PTI Applications has been copied in such a way to constitute copyright infringement, please contact our Designated Agent below with the following information:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
PTI Marketing Technologies, Inc.
201 Lomas Santa Fe Drive, Suite 300
Solana Beach, CA 92075
- Term and Termination. Subject to this Section, these TOU will remain in full force and effect while you use the PTI Applications. We may (a) suspend your rights to use the PTI Applications or (b) terminate these TOU, at any time for any reason at our sole discretion, including for any use of the PTI Applications in violation of these TOU. Upon termination of these TOU, your right to access and use the PTI Applications will terminate immediately. You understand that any termination may involve deletion of your Content associated therewith from our live databases. PTI will not have any liability whatsoever to you for any termination of these TOU, including for deletion of your Content. The provisions of these TOU that by their nature should survive expiration or termination shall survive (including limitations of liability and indemnification).
General. Your relationship to PTI is that of an independent contractor, and neither party is an agent or partner of the other. These TOU shall be governed in all respects by the laws of the State of California without giving effect to its conflict of laws provisions. Both parties submit to personal jurisdiction by and venue in the state and federal courts in the State of California, County of San Diego and further agree that any cause of action arising under these TOU shall be brought in such venue. Notwithstanding the foregoing, PTI may, at any time, seek injunctive or other equitable relief, wherever it deems appropriate, to protect or enforce its rights under these TOU. If any provision of these TOU is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. PTIs’ failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. These TOU and the terms and conditions contained herein sets forth the entire understanding and agreement between us with respect to the subject matter hereof, and supersedes any prior or contemporaneous understanding whether in written or oral form. These TOU, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of these TOU shall be binding upon assignees.
Last revised: August 24, 2019