SubMrg User Agreement

Notice to user: please read this agreement carefully. SubMrg, Inc. (“SubMrg”) has developed the SubMrg service as a computer online service that provides services to users who publish content using XML syndication (collectively, the “Service”). The Service is accessible to you through a personal computer, or other access device, at www.SubMrg.com using a communications connection (e.g., modem and telephone line) using the software made available to you thorough SubMrg (“SubMrg Software”) and the guidelines provided therefor by SubMrg on its site (“Software Guidelines”). By using all or any portion of the service or by creating a user account with SubMrg, you represent that you are at least 18 years of age and you accept all the terms and conditions contained in this agreement (“agreement”). You agree that this agreement is enforceable like any written negotiated agreement signed by you and you agree to be legally bound and to abide by this agreement just as if you had signed this agreement. You agree to use the service in a manner consistent with all applicable laws and regulations and in accordance with this agreement. you are also responsible for obtaining or providing all telephone access lines, telephone and computer equipment (including modem), or other access devices, necessary to access the service. If you do not agree to all the terms of this agreement, do not use this service. SubMrg reserves the right to refuse participation to any applicant or user at any time in its sole discretion. Upon notice published through the service or otherwise, SubMrg may modify this agreement at any time. your continued use of the service following such modification shall be deemed to be your acceptance of such modification.

  1. Account, Password and Security. You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify SubMrg of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. SubMrg shall not be liable for any loss or damage arising from your failure to comply with this Section or any use of your password or account whether authorized by you or not.
  2. Links and Frames. The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Your use of other sites or resources are governed by terms on or related to such sites or resources. Use of such sites or resources is at your own risk. Because SubMrg has no control over such sites and resources, you acknowledge and agree that SubMrg is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that SubMrg shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
  3. Trademarks and Copyrights. Certain of the names, logos, and other materials displayed in the Service constitute trademarks or intellectual property of SubMrg or other entities. You are not authorized to use any such marks. Ownership of such trademarks and other intellectual property remains with SubMrg or those other entities.
  4. SubMrg Software and Content. The SubMrg Software is owned by SubMrg, its licensors or providers. You may use the SubMrg Software solely in conjunction with the Service consistent with this Agreement and the Software Guidelines. You may not modify, resell, redistribute, reverse engineer or otherwise manipulate the SubMrg Software or Service. Except as expressly provided for in this Section, you are not granted any other rights, title or interest in the SubMrg Software or Service. You hereby grant to SubMrg a royalty-free, non-exclusive license to publicly display and distribute your content (the “Content”) in connection with the Service and the Bounce Program (provided you have opted into the Bounce Program as described in section 9 below), and you represent and warrant that you own or have rights to provide such Content for use with the Service.
  5. Notices. You shall not copy the SubMrg Software except as set forth herein. Any copy of the SubMrg Software or Service that you make must contain the same copyright and other proprietary notices that appear on or in the SubMrg Software or Service.
  6. No Modifications. You shall not modify, adapt or translate the SubMrg Software or the Service. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the SubMrg Software except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the SubMrg Software with another software program, and you have first requested SubMrg to provide the information necessary to achieve such operability and SubMrg has not made such information available. SubMrg has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by SubMrg and any information obtained by you by such permitted decompilation may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the SubMrg Software.
  7. Modifications To Service. SubMrg reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that SubMrg shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
  8. Termination. You agree that SubMrg, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any content within the Service, for any reason or no reason, including, without limitation, for lack of use or if SubMrg believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. SubMrg may also in its sole discretion, for any reason or no reason and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that SubMrg may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that SubMrg shall not be liable to you or any third-party for any termination of your access to the Service.
  9. Bounce Participation.
    1. Overview. SubMrg provides a optional-to-decline program (the “Bounce Program”) by which SubMrg will insert relevant information, links and/or advertisements (“Feeds”) that may be sourced directly by SubMrg or from third parties (“Partners”) into our web sites and your feeds distributed by you and managed by SubMrg (“Feeds”). Participation in the Bounce Program is optional, but by selecting any service at or above the “Basic” level of the SubMrg.com website or by allowing SubMrg to insert any Feeds around your Content, you agree to the additional terms of this Agreement that apply to the Feeds.
    2. Participation. Participation is subject to approval from SubMrg and/or its Partners. SubMrg reserves the right to deny participation to or revoke its prior approval of any user in its sole discretion.
    3. Content Rights. You represent and warrant that you have all necessary rights in and to the Content and the right to include advertisements, links and relevant information in the Content. In addition to any other remedies that may be available to SubMrg, your infringement of any intellectual property rights including but not limited to any violation of any copyright, will result in termination of participation in the Bounce Program. If advertisements are included on our web site, you may not be entitled to payment and this may be cause for forfeiture of any payment due.
    4. Prohibited Uses. You shall not yourself, nor authorize or enable any third party to, (i) directly or indirectly generate queries, impressions or clicks on any Feed(s) through any manual, automated, or otherwise fraudulent means, including but not limited to repeated clicks, the use of robots or other automated query tools, (ii) edit or modify the information contained in any Feed, including but not limited to the presentation or the URL or URL mapping that may exist into the Feed unit, (iii) run the Feed through any additional service that rewrites the URLs contained in the Feed. You agree that any violation of (or attempt to violate) the foregoing is a material breach of this Agreement and that SubMrg may suspend your account and pursue legal remedies against you. A breach of this Agreement will result in your forfeiture of any payment due to you. A breach of this Agreement will not result in our forfeiture of any payment due to the Service.
    5. Termination. You may terminate participation in the Bounce Program at any time by turning off the service presented to you at the SubMrg.com website. Upon your termination, you may in certain cases be prohibited from re-enrolling in the Bounce Program for a period of time based on agreements with Partners. SubMrg, in its sole discretion, may terminate the Bounce Program at any time for any reason with or without notice.
    6. No Guarantee. SubMrg makes no guarantee as to the level of impressions, subscriptions or clicks on any Feed, or the amount of any payment to be made under this Agreement. SubMrg makes no guarantee as to click-thru performance for advertising in syndication feeds, including but not limited to all current and future versions of RSS and Atom as compared to similar Feeds placed in HTML pages.
    7. Payment. [This section intentionally removed for beta test period and data gatehring]
    8. Copyrights. Content inside the Feed itself will remain copyright of the Feed owner. Your Content is not modified by SubMrg to include Ads. If your Content is modified by SubMrg to include Ads, it becomes your copyrighted work as may be determined by your particular copyright rights and/or license. If your Content is modified by SubMrg to include Feeds, SubMrg does not assert copyright over your copyrighted work.
  10. Disclaimer of Warranty; Limitation of Liability. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE, CONTENT AND SUBMRG SOFTWARE IS AT YOUR OWN RISK. NEITHER SUBMRG, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS, OR LICENSORS WARRANT THAT THE SERVICE, ADS OR SUBMRG SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, ADS OR SUBMRG SOFTWARE INCLUDING THEIR ACCURACY, RELIABILITY, QUALITY, ADEQUACY, TIMELINESS OR AUTHENTICITY. NOR DO THEY MAKE ANY WARRANTY AS TO THE ACCURACY, RELIABILITY, QUALITY, ADEQUACY TIMELINESS OR AUTHENTICITY OF ANY ADS, INFORMATION, SERVICE, PRODUCTS, MERCHANDISE OR OTHER MATERIAL PURCHASED PROVIDED BY OR THROUGH THE SERVICE. THE SERVICE, SUBMRG SOFTWARE AND ADS 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, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL SUBMRG, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE, ADS OR THE SUBMRG SOFTWARE, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFIT OR REVENUE ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, ADS OR SUBMRG SOFTWARE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION REGARDLESS OF WHETHER SUBMRG HAD NOTICE OF THE CAUSE OR SUCH CAUSE WAS FORESEEABLE. THESE DISCLAIMERS AND LIMITATIONS SHALL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
  11. Indemnity. You agree to defend, indemnify and hold SubMrg, and its subsidiaries, affiliates, and their directors, officers, agents, members, shareholders, co-branders or other partners, employees, and Ad Partners harmless from any liabilities, losses, actions, damages, claims or demands, including reasonable attorneys’ fees, costs and expenses, made by any third party directly or indirectly relating to or arising out of (a) content you provide to SubMrg or otherwise transmit or obtain through the Service, (b) your use of the Service, (c) your connection to the Service, (d) your violation of this Agreement, (e) your violation of any rights of another or (f) your failure to perform your obligations hereunder.
  12. Third Party Beneficiaries. You agree that any Ad Partner that supplies any Ad shall be a third party beneficiary with respect to this Agreement, and that such Ad Partner shall have the right to enforce such provisions in its own name as if the Ad Partner were SubMrg. You further agree that you shall not raise lack of privity as a defense against any Ad Partner seeking to enforce the provisions of this Agreement.
  13. Publicity. You agree that SubMrg may use your name and logo in presentations, marketing materials, customer lists, financial reports and Web site listings of customers.
  14. Miscellaneous. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of Illinois, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Each provision of this Agreement is intended to be severable. If any term or provision hereof shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity and enforceability of the remainder of this Agreement. You may not assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without SubMrg’s prior written consent, and any attempt to do so without that consent will be void. SubMrg may assign this Agreement to a successor in interest in connection with a change of control, a sale of substantially all of its assets, or a merger, acquisition, public offering or other reorganization transaction. The section headings used herein are for convenience only and shall not be given any legal import. The parties shall attempt to resolve any controversy or claim arising out of or relating to the creation, performance, termination and/or breach of this Agreement in the first instance through good faith negotiation or mediation between the parties. Any claims or disputes arising from or related to this Agreement shall be resolved through binding arbitration under the Federal Arbitration Act, 9 U.S.C. § I et. seq. via the American Arbitration Association located in San Francisco, California, U.S.A. and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, and solely with respect to breaches or threatened breaches of this Agreement, either party to this Agreement may seek a temporary restraining order and injunction to protect its legal rights or interests, without the need to post bond in any court having jurisdiction.

If you have any questions regarding this Agreement or if you wish to request any information from SubMrg, please contact SubMrg at the following address:

SubMrg, Inc.
2347 Bay Street
First Floor
San Francisco, CA USA 94123


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