MASTER TERMS AND CONDITIONS
These ReminderMedia Master Terms and Conditions (“Master Terms”) apply to and govern the provision by Digital Grapes LLC, doing business as ReminderMedia and, among other things, the publisher, distributor, and marketer of American Lifestyle magazine (ALM) print and digital, Good to Be Home magazine (GTBH) print and digital, Start Healthy (SH) print and digital, and other print and digital publications (“Company”), to each customer of Company (“Customer”), of all Company services, including all products and offerings provided in connection with such services, as ordered by Customer and accepted by Company through one or more orders (each, an “Order” and collectively, the “Orders”) (collectively, such services, with all included products and offerings, the “Services”), whether such Services are provided by Company through one or more Company websites, mobile applications, or other online services (collectively, the “Platform”) or otherwise. Certain Services may be subject to additional rules, terms, or conditions applicable to a specific Service or a collection of Services (collectively, “Additional Terms”). These Master Terms, the terms of each applicable Order, and all applicable Additional Terms form the full legally binding agreement between Company and Customer regarding the Platform and Services (“Agreement”). In the event of any conflict as between or among these documents forming the Agreement, the order of precedence of the terms of such documents (from highest to lowest) shall be: (1) the Order (with deference to a later Order over an earlier Order), (2) Additional Terms (with deference to more specific terms over general terms), and (3) these Master Terms.
BY ACCESSING OR USING THE PLATFORM AND/OR ORDERING SERVICES FROM COMPANY, CUSTOMER ACCEPTS THE AGREEMENT AND REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT. CUSTOMER MAY NOT ACCESS OR USE THE PLATFORM OR RECEIVE SERVICES OR ACCEPT THE AGREEMENT IF CUSTOMER DOES NOT HAVE THE CAPACITY TO ENTER INTO THE AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE PROVISIONS OF THE AGREEMENT, DO NOT ORDER SERVICES OR ACCESS OR USE THE PLATFORM. ANY INDIVIDUAL THAT ACCESSES OR USES THE PLATFORM OR ORDERS SERVICES ON BEHALF OF AN ENTITY OR ORGANIZATION REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL IS AN AUTHORIZED REPRESENTATIVE OF SUCH ENTITY OR ORGANIZATION WITH THE AUTHORITY TO BIND IT TO THE AGREEMENT.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING CUSTOMER’S LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT CUSTOMER SUBMIT CLAIMS CUSTOMER HAS AGAINST COMPANY TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) CUSTOMER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
2.1 Account Creation.
In order to use the Platform or receive Services, Customer must register for an account with Company (“Account”) and provide certain information about Customer, as provided on an applicable Order and/or as prompted by the registration forms on the Platform. Customer represents and warrants that: (a) all required information Customer submits is truthful and accurate; and (b) Customer will maintain the accuracy of such information at all times.
2.2 Account Responsibilities.
When Customer first uses the Platform, Customer will establish or be provided with one or more user names and passwords. Additionally, the Platform may permit Customer to establish an organizational account under which Customer may provision additional user accounts to other individuals in Customer’s organization. Such an organizational account shall be responsible for all additional user accounts provisioned under it. Each user is responsible for maintaining the confidentiality of the user’s login information, and each user—and each organizational account, if applicable—shall be fully responsible for all activities that occur under the Account. Customer shall immediately notify Company of any unauthorized use, or suspected unauthorized use, of the Account or any other breach of security. Each Customer Account is to be used solely for access to the Platform by an authorized individual user.
3. USE OF PLATFORM AND RECEIPT OF SERVICES.
3.1 Limited License.
Subject to the terms of the Agreement, Company grants Customer a limited, revocable, non-transferable, non-exclusive license to access and use the Platform for Customer’s own use to receive Services in accordance with the Agreement. Customer’s use of any software made available by Company in connection with Customer’s access to and use of the Platform shall be limited to use of executable object code and markup code made available by Company only (and not to any source code).
3.2 Acceptable Use and Restrictions.
The rights granted to Customer in the Agreement are subject to the following rules for acceptable use and restrictions:
(a) except as expressly permitted by Company in advance in writing, Customer shall not license, sell, rent, lease, transfer, assign, distribute, or host the Platform, or otherwise make Services provided by Company to Customer available, to or for any third party;
(b) Customer shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Platform or Services;
(c) Customer shall not access the Platform or receive Services in order to build a similar or competitive product or service;
(d) except as expressly stated herein or as otherwise permitted by Company (e.g., in connection with publications or other components of the Services that are intended to be distributed to Customer’s customers), no part of the Platform or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means (including by, e.g., scraping, mirroring, framing, embedding, or linking);
(e) Customer shall not use the Platform or Services for any non-authorized purpose or any illegal purpose;
(f) Customer shall not use the Platform or Services to violate any legal right of any third party, including any publicity or privacy right, copyright, or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful, or otherwise objectionable;
(g) Customer shall not access or use any password-protected, secure, or nonpublic areas of the Platform or Services, or access data on the Platform or Services not intended for Customer;
(h) Customer shall not impersonate or misrepresent its affiliation with any person or entity;
(i) Customer shall not use any automated means to access or use the Platform or Services, including scripts, bots, scrapers, data miners, or similar software, without Company’s express written permission;
(j) Customer shall not attempt to or actually disrupt, impair, interfere with, alter, or modify the Platform or Services, or any information, data, or materials posted and/or displayed by Company, except to the extent intentionally permitted by the functionality of the Platform or Services;
(k) Customer shall not attempt to probe, scan, or test the vulnerability of the Platform or Services or breach any implemented security or authentication measures, regardless of Customer’s motives or intent;
(l) Customer shall not attempt to interfere with or disrupt access to or use of the Platform or Services by any user, processor, host, or network, including, without limitation, by submitting a virus, worm, Trojan horse, or other malicious code;
(m) In using the Platform or Services, Customer shall not willfully or knowingly create or contribute to circumstances that are dangerous or hazardous or that increase the risk of personal injury or damage to real or personal property of another person;
(n) Customer shall not post any content to the Platform or Services that: (i) includes any profane, obscene, defamatory, discriminatory, threatening, menacing, harassing, or violent content; (ii) depicts or suggests nudity or sexual acts; (iii) promotes hatred, including against members of a protected group under federal, state, or local law (such as, for example, a group defined by race, gender, or national origin); (iv) is objectively shocking or disgusting; (v) depicts or suggests presently occurring illegal activity, including, e.g., illicit drug use or underage drinking; (vi) includes unlicensed proprietary content of a third party, including, e.g., third-party content protected by copyright or trademark for which Customer does not have a license; (vii) breaches any duty of confidentiality Customer may have to a third party (e.g., discloses private information about a third party without consent); or (viii) is contrary to the Agreement or any other applicable Company rules and policies;
(o) Customer’s use of the Platform and Services shall at all times comply with all applicable laws and regulations and all applicable terms and conditions of any Third-Party Services upon which use of the Platform or receipt of the Services depends (as addressed further below); and
(p) All copyright and other proprietary notices included within the Platform and on all publications and other content made available through the Platform or in connection with the Services must be retained and not modified or obscured.
3.3 Customer Obligations.
Customer is responsible for:
(a) obtaining, deploying, and maintaining all communications equipment, including all hardware and software, necessary for Customer to access and use the Platform and receive the Services;
(b) contracting with third party telecommunications providers to facilitate Internet connections to access and use the Platform and receive the Services via the Internet;
(c) providing adequate notices and implementing lawful and appropriate policies when collecting, using, storing, or disclosing personal information, and honoring privacy rights requests and preferences;
(d) determining its obligations under and fully complying with (i) all applicable local, state, federal, and other national laws, including, but not limited to, laws and regulations relating to individual privacy, data protection, or the distribution of email and other digital one-to-one communications, such as the Telephone Consumer Protection Act (TCPA), which may apply when Customer uses the Platform or Services to communicate with marketing contacts for the purposes of marketing to them through automated systems, and (ii) all applicable industry standards governing marketing. Customer is responsible for managing the distribution of publications ordered pursuant Services and ensuring that such distributions meet all applicable laws, including postal laws; and
(e) paying all third party fees and access charges incurred in connection with the foregoing.
Customer agrees that before using the Platform or Services to communicate with marketing contacts for the purposes of marketing, it shall obtain express written consent from each recipient that acknowledges the consent of the recipient to the on-going receipt of text or pre-recorded voice messages related to Customer’s services.
Customer acknowledges the Platform and Services are dynamic and subject to further development by Company. Company reserves the right, at any time, to modify, suspend, or discontinue the Platform or Services, or any one or more individual parts or components thereof, with or without notice. Other than with respect to a refund of any pre-paid fees therefor (which shall be determined and given, if at all, in Company’s sole discretion in view of prevailing circumstances), Customer agrees that Company will not be liable to Customer or to any third party for any modification, suspension, or discontinuance of the Platform, or any one or more individual parts or components thereof.
3.5 Company-Sourced Content.
Company obtains information and other content provided in connection with certain Services, such as for virtual and in-person local and national events and related information and content for local content e-mail marketing, from various third party sources. Likewise, content for Company’s targeted mailing lists is originated by or derived from content provided by others. Company provides no assurances that such content from third party sources will be accurate or that such content will not change. Company will use good faith efforts to remove or update any content that is inaccurate as identified by Customer (or another customer) to Company. Company assumes no responsibility for comparing information in targeted mailing lists to “do not call” or other similar lists generated by regulatory authorities.
3.6 License to Customer Website.
With respect to those Services where Company provides a website and related services to Customer (“Customer Website”), subject to Customer’s compliance with the Agreement, Company hereby grants Customer a limited, non-exclusive, non-transferable license during the term of the applicable Order for such Services to use the Customer Website and all content included therewith. Subject to Customer’s compliance with the Agreement, Company hereby grants Customer a limited, non-exclusive, non-transferable, revocable license after the term of the applicable Order for such Services to use only that content on the Customer Website that is (a) created by Company for Customer and (b) provided by Company to Customer upon termination of the applicable Order, at Company’s sole discretion.
4. AVAILABILITY AND ENHANCEMENTS.
Company will use commercially reasonable efforts to make the Platform and the Services available with minimal downtime on a 24 hours a day, 7 days a week basis. Notwithstanding the foregoing, availability of the Platform and the Services may be affected by one or more of the following at any time and from time to time, resulting in temporary interruptions to the Platform and Services: (a) planned downtime; (b) routine maintenance; and (c) any unavailability caused by circumstances outside of the reasonable control of Company. Company will make available to Customer those updates, upgrades, and enhancements to the Platform and Services that Company makes generally available at no cost to its other customers of the same Services at no additional charge; provided that, the availability of certain enhancements to the Platform and Services may require the payment of additional fees, and Company will determine in its sole discretion whether access to any other such enhancements will require an additional fee. Any future release, update, or other addition to features or functionality of the Platform or Services shall be subject to the terms of the Agreement.
6. THIRD-PARTY SERVICES.
The Platform and Services are designed to interoperate with certain third-party services, including any products or other offerings provided with such third-party services, that are not under the control of or maintained by Company (“Third-Party Services”). Certain Third-Party Services are integrated into the basic operation of the Platform and Services, certain Third-Party Services may be added to the Platform or Services, as provided to Customer, by Customer for additional fees or Company may, for additional fees, manage Third-Party Services on behalf of Customer. Customer must agree to and abide by the terms and conditions of any applicable Third-Party Services (as such terms and conditions may change from time to time), and Customer’s violation of the applicable terms and conditions of any such Third-Party Services shall be a violation of the Agreement. Company is not responsible for the content of, or any transactions Customer processes (or authorizes Company to process on behalf of Customer) on or through, any Third- Party Services. Except as expressly and unambiguously stated by Company in writing, Company does not make any representations or warranties about Third- Party Services, or any information, materials, or products found thereon. To the extent that Company provides links or references to any Third-Party Services, Customer acknowledges that Company provides them to Customer solely as a convenience to Customer. In no event shall Company be liable for any loss, claim, damages, costs, or negative experiences that may arise in connection with Customer’s access to or use of any Third-Party Services independent of or not directly caused by the Platform or Services, including, without limitation, any transactions processed by Customer (or by Company as authorized on behalf of Customer) on or through such Third-Party Services.
6.2 MLS Services.
Certain of the Services may use content provided by MLS Listings Inc. (“MLS”). To the extent that such Services are provided to Customer, as applicable, Customer agrees to enter into a licensing agreement with MLS and Company for MLS to provide MLS content. Customer is responsible for all costs and fees associated with such MLS content.
6.3 Domain Names.
(a) Customer Provided Domains and Company Provided Domains. In connection with certain Services, Customer may provide Company with a domain name registered to Customer, e.g., for use with a Customer Website (a “Customer Provided Domain”). Alternatively, Company may work with third party registrars to provide Customer with domain services and Company may provide Customer with a domain name (a “Company Provided Domain”). When Customer provides or uses a Customer Provided Domain or a Company Provided Domain with the Services, Customer agrees to be bound by the relevant registrar’s terms and conditions and any breach of the such terms and conditions is a breach of this Agreement. Customer’s use of Customer Provided Domains or Company Provided Domains with the Services is subject to the policies, including without limitation the dispute resolution policies, of the Internet Corporation for Assigned Names and Numbers (ICANN). Customer is responsible for the Customer Provided Domain or the Company Provided Domain, including but not limited to any fees or costs associated with the Customer Provided Domain or Company Provided Domain.
(b) License to Customer Provided Domain or Company Provided Domain. During term of each Order for applicable Services, Customer hereby grants to Company a limited, non-exclusive, royalty-free, worldwide license to use each Customer Provided Domain or Company Provided Domain and perform all acts with respect to the Customer Provided Domain or Company Provided Domain as may be necessary for Company to provide Services to Customer. Each of Company and Customer shall provide the other with access to accounts, user names, and passwords issued by the applicable registrar or service provider that may be necessary to effectively manage any Customer Provided Domain as may be necessary for Company to provide the Services to Customer.
(c) Transfer of Registration. Upon termination of the term for each applicable Order and upon Customer’s request, Company shall request that any Internet domain name registrar take whatever actions are necessary to effectively transfer the registration and control of each Company Provided Domain to Customer as the Customer and owner of the Company Provided Domain, including without limitation taking steps necessary in accordance with the domain name transfer procedures of the applicable Internet domain name registrar. Upon termination of the term for each applicable Order and upon Customer’s request, Company shall provide Customer with access to accounts, user names, and passwords issued by the applicable registrar or service provider that may be necessary to effectively take control of or otherwise manage each Company Provided Domain. Customer may transfer registrations to any available registrar according to the terms and conditions of transfer provided by such registrar.
6.4 Digital Advertising.
If selected as a Service, Company will provide certain digital advertising management Services for Customer. Company makes no specific guarantee or warranty regarding the publishers to which it submits advertising on Customer’s behalf, including placement of paid search advertising or any specific results. Company does not warrant the number of calls, clicks, impressions or website visits or that paid search advertising will appear in response to any particular query or in the aggregate. Company does not warrant that the performance will be error-free but, as the sole remedy, Company will immediately act to correct errors once they have been identified or provide a full refund of the amounts paid to Company in connection with advertising that resulted in errors, including with respect to images or copy. Company will have no liability in connection with the functionality or content of any search provider or internet publisher or website not owned by Company, and Customer acknowledges that third party publishers or websites may drop listings, suspend accounts, impose additional requirements or terms and conditions, or undertake other actions, which may impact the Services, at their discretion. Customer agrees that Company shall not be responsible or liable for any of the foregoing. Company is responsible for only setting up the Customer’s ad campaign account and managing it on a monthly basis but does not act as a payer for any fees, penalty, bidding or budget of the publisher or website selected. Company may develop advertising content based on information or material provided by Customer or Customer’s designees and collected by Company, including copy, form, size, text, graphics, names, addresses, phone numbers, URLs, logos, trade names, trademarks, service marks, endorsements, photographs or likenesses, and videos. Customer represents that the material and information provided to Company is truthful and not misleading, that Customer has the authority and all necessary rights to provide this material and information to Company for its intended purpose, that the material and information complies with all applicable rules, policies, terms and conditions of Third-Party Services to which such material and information will be submitted or published, and that the material and information does not breach any applicable law or violate the rights of any third party (including intellectual property and privacy rights).
7. FEES AND PAYMENT.
Company will make commercially reasonable efforts to display and explain all applicable fees in connection with the use of the Platform and receipt of Services, including on each applicable Order. Note that in addition to any fees charged by Company for use of the Platform or receipt of Services, Customer may also be charged for the use of Third-Party Services. Except to the extent otherwise provided in an applicable Order, Company’s fee and payment policy may change from time to time. Fees are non-refundable; provided, however, that Company may review and modify the fees charged and payments made in any transaction, in its sole discretion, based on any complaint or report of special circumstances concerning a transaction. Company may make promotional offers with different features and different rates for Services. These promotional offers, unless made to Customer, shall have no bearing whatsoever on Customer’s access to and use of the Platform or receipt of Services.
Except as otherwise provided in an applicable Order, payment with respect to use of the Platform and receipt of Services shall be due monthly. Customer shall accept recurring credit card charges for Services ordered during the applicable term for such Services. Company may contract with one or more third parties to facilitate the processing of fees and payments.
Customer shall be responsible for the payment of any sales, use and all other taxes and duties, whether national, state or local, however designated, which are levied or imposed by reason of the performance by Company under the Agreement; excluding, however, income taxes on profits which may be levied against Company.
8. CUSTOMER CONTENT.
8.1 Customer Content.
“Customer Content” means any and all information and content that is input into the Platform or otherwise provided to Company by or on behalf of a Customer. Customer acknowledges and agrees that Company is not responsible, and Customer is solely responsible, for any Customer Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, integrity, quality, reliability, appropriateness, and all other aspects thereof. By providing Customer Content to Company, Customer represents and warrants that Customer has the right to provide such Customer Content to Company and to use (and for Company to use) such Customer Content for the purposes of the Platform and the Services. Company does not assume and will not have any liability or responsibility to Customer or any other person or user for Customer’s use or misuse of any Customer Content. The parties do hereby acknowledge and agree that certain Services to be provided by the Company are dependent upon the accuracy, completeness, and timeliness of the information (including contact names and associated addresses) provided to Company by Customer. Company shall have no responsibility hereunder in the event that any reasonably necessary information is not provided to Company in a timely manner or is inaccurate or incomplete. Company is not obligated to backup any Customer Content and Customer is solely responsible for creating backup copies of Customer Content, if Customer desires.
8.2 Customer Responsibilities.
Customer may provide to Company lists of customer contacts and potential customer contacts. Customer should always maintain duplicate copies of lists of customer contacts and potential customer contacts. Notwithstanding anything to the contrary in this Agreement, mailing lists generated by Company from contact information provided by Customer shall be owned by Company; provided that Company shall use contact information provided by Customer only in accordance with Customer’s instructions, Customer mailing lists will not be sold or distributed for use to any other party, and Company will not utilize the lists for any other purpose. Company will use good faith efforts to maintain the confidentiality of any such lists. With respect to information about Customer’s marketing contacts included in Customer Content, Customer agrees to include only the following data elements in the Customer Content provided to Company: names, email address, physical address, general location, and phone numbers (“Customer Marketing Contact Information”). Customer Marketing Contact Information shall not include any other data elements, including, without limitation, any other personally identifiable information, sensitive data, precise location data, payment card information, health information, financial account information, social security numbers or other government issued identification numbers or passwords linked to email addresses necessary to access an account. Customer is solely responsible for (a) the accuracy of the Customer Marketing Contact Information, it being acknowledged by Customer that Company has no obligation to review the Customer Marketing Contact Information; (b) maintaining the quality of the data elements provided to Company; (c) obtaining (or verifying that the source of such information has obtained) any required consents, including but not limited to opt-in consent to send text messages and consent to send marketing materials; and (d) providing any required notices, or otherwise taking all actions required by applicable law for Customer to provide the Customer Marketing Contact Information to Company and for Company to use the Customer Marketing Contact Information to provide the Services. Customer agrees that it has obtained, and will maintain as valid, any and all authorizations, permissions and informed consents, including those of individuals whose personal data or personally identifiable information may be processed in connection with the Services, as may be necessary under the applicable laws, to allow Company to lawfully collect, handle, retain, process and use such data, including the Customer Marketing Contact Information, in the manner and for the purposes of the Agreement. To the extent that any Customer marketing contact elects to opt out of Customer’s marketing communications at any time, Customer shall be solely responsible for updating the applicable Customer Content within the Platform or as otherwise provided to Company.
8.3 Lead Generation Services.
With respect to Services involving the generation of marketing leads for Customer, Customer will determine and instruct Company regarding its selection and use of, and any contractual requirements with, social media platforms, search engine and other marketers, and advertising partners to assist Customer with leads for marketing contacts who, via a registration process, indicate they are seeking the products and/or services that Customer provides (each a “Lead”). Leads will be generated from sources determined at the discretion of Customer. Customer represents and warrants that (a) Customer is responsible for all Leads, including but not limited to the quality of the Leads and that all Leads comply with applicable laws; and (b) Customer will comply with any terms and conditions of Third-Party Services applicable to such Leads, including those of third-party sources for such Leads.
8.4 Processing of Customer Marketing Contact Information.
Without Customer’s consent, Company shall not use Customer Marketing Contact Information for any purpose other than: (a) providing the Platform and performing the Services; (b) Company’s proper management and administration purposes, including to improve the Platform and the Services and for statistical and analytics purposes; (c) to monitor use of the Platform and the Services for security purposes; and (d) to enforce the terms of the Agreement. The parties acknowledge and agree that, in relation to any Customer Marketing Contact Information that constitutes personal information, Company will be acting as a service provider to Customer, and Company will not retain, use, or disclose such personal information for any purpose other than providing the Platform and performing the Services under the Agreement or as permitted by applicable law, including retaining, using, or disclosing such personal information for a commercial purpose other than providing the Platform or Services.
8.5 Right to Remove Data.
Customer agrees that Company has the right to remove any content, including Customer Content, from the Platform or reproduced or published through the Services, at any time, with or without cause. Company also has the right to refuse, move, or block access to any material submitted on or through the Platform or Services, and to establish general practices and limits concerning use of the Platform and receipt of Services. The decision of whether or not to remove content from the Platform or reproduced or published through the Services is within Company’s sole and complete discretion. Company has no obligations, contractual or otherwise, to take or refrain from taking any action. Under no circumstances will Company be liable to Customer for removing or failing to remove any content.
If Customer provides Company any feedback or suggestions regarding the Platform or Services (“Feedback”), Customer hereby assigns to Company all rights (including all intellectual property rights) in and to the Feedback and agrees that Company shall have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback Customer provided to Company as non-confidential and non-proprietary. Customer agrees that Customer will not submit to Company any Feedback that Customer considers to be confidential or proprietary.
In connection with the Agreement and the Platform made available and Services to be provided under the Agreement, each party may receive information relating to the business operations of the other party (any and all such information hereinafter “Confidential Information”). Each of the parties expressly agrees that, except with the prior consent of the other party, that the party receiving Confidential Information of the other party will not use or disclose any such Confidential Information of the other party for any purpose other than the purpose of fulfilling its obligations or exercising its rights under the Agreement.
Customer agrees to indemnify and hold harmless Company and its affiliates, and its and their directors, officers, members, principals, owners, employees, agents, representatives, contractors, suppliers, service providers, successors, and assigns, from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and/or expenses (including reasonable attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of (a) Customer’s use or misuse of the Platform or Services, including as related to all Customer activities and postings, (b) Customer Content, including as related to Customer’s marketing contacts, such as, without limitation, for infringement, misappropriation, or other violation of any third party’s intellectual property or privacy rights, and as related to Customer’s provision of incomplete or inaccurate information to Customer’s marketing contacts, (c) Customer’s breach or other violation of the Agreement; or (d) Customer’s violation of applicable laws or regulations. Company reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify Company, and Customer agrees to cooperate with Company’s defense of these claims. Customer agrees not to settle any indemnified claim, action, or proceeding without the prior written consent of Company. Company will use reasonable efforts to notify Customer of any such claim, action, or proceeding upon becoming aware of it.
11. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS.
11.1 Representations and Warranties.
Each party represents, warrants and covenants to the other party that: (a) it has the full power and authority to enter into the Agreement and to perform its obligations under the Agreement, without the need for any organizational consents or approvals not yet obtained; and (b) its acceptance of and performance under the Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust. Customer represents and warrants to Company that Customer (x) owns or has acquired, and will maintain all necessary rights, power, and authority to provide and use, all of the Customer Content; (y) has all necessary rights (including by having given all notices and obtained all consents required by applicable laws) to send marketing communications to Customer’s marketing contacts; and (z) will comply, at Customer’s sole cost, with all applicable laws and will hold and fully comply with all consents, licenses, permits and approvals required by Customer to operate its business and otherwise perform its duties and obligations under the Agreement.
EXCEPT FOR THOSE WARRANTIES MADE AND EXPRESSLY IDENTIFIED AS WARRANTIES BY COMPANY, COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING (A) THE PLATFORM OR THE SERVICES; (B) ANY PRODUCTS AND SERVICES OFFERED OR MADE AVAILABLE THROUGH THE PLATFORM OR SERVICES; (C) THE ACTS OR OMISSIONS OF USERS THROUGH THE PLATFORM OR IN CONNECTION WITH RECEIPT OF THE SERVICES; (D) THIRD-PARTY SERVICES ON WHICH THE PLATFORM OR SERVICES DEPEND OR WITH WHICH THE PLATFORM OR SERVICES INTEROPERATE; AND (E) ANY TRANSACTIONS INITIATED OR PROCESSED BY CUSTOMER ON OR THROUGH SUCH THIRD-PARTY SERVICES, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. EXCEPT AS EXPRESSLY STATED IN AN APPLICABLE ORDER OR ADDITIONAL TERMS, COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS, OR SERVICES DISPLAYED ON OR OFFERED OR MADE AVAILABLE THROUGH THE PLATFORM OR SERVICES ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. COMPANY ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PLATFORM OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT CUSTOMER’S ACCESS TO AND USE OF THE PLATFORM OR RECEIPT OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE WILL BE SECURE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
12. LIMITATION ON LIABILITY AND RELEASE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, IN NO EVENT SHALL COMPANY OR ANY OF ITS AFFILIATES OR SUPPLIERS (INCLUDING ANY OF ITS OR THEIR PARTNERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PRINCIPALS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, SERVICE PROVIDERS, SUCCESSORS, OR ASSIGNEES) BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, EQUITY, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), NOR FOR ANY DAMAGES ARISING FROM DELAY, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO DATA, INTERRUPTION IN USE OR AVAILABILITY OF DATA, LOSS OF USE OF MONEY OR USE OF PRODUCTS, LOST PROFITS, REVENUE OR SAVINGS (ACTUAL OR ANTICIPATED), OR OTHER ECONOMIC LOSS ENSUING FROM OR IN CONNECTION WITH (A) THE PLATFORM OR THE SERVICES; (B) ANY PRODUCTS AND SERVICES OFFERED OR MADE AVAILABLE THROUGH THE PLATFORM OR SERVICES; (C) ANY ACTS OR OMISSIONS OF USERS THROUGH THE PLATFORM OR IN CONNECTION WITH RECEIPT OF THE SERVICES; (D) THIRD-PARTY SERVICES ON WHICH THE PLATFORM OR SERVICES DEPEND OR WITH WHICH THE PLATFORM OR SERVICES INTEROPERATE; OR (E) ANY TRANSACTIONS INITIATED OR PROCESSED BY CUSTOMER ON OR THROUGH SUCH THIRD-PARTY SERVICES, EVEN IF COMPANY OR ANY OF ITS AFFILIATES OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
CUSTOMER EXPRESSLY WAIVES AND RELEASES ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES AND SUPPLIERS (INCLUDING ANY OF ITS OR THEIR PARTNERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PRINCIPALS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, SERVICE PROVIDERS, SUCCESSORS, AND ASSIGNEES) TO CUSTOMER EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO COMPANY BY CUSTOMER UNDER THE AGREEMENT DURING THE PRIOR TWELVE (12) MONTH PERIOD. THIS LIMITATION ON THE AMOUNT OF LIABILITY SHALL APPLY WHETHER A CLAIM OR LIABILITY ARISES IN CONTRACT, EQUITY, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR LIABILITY. THIS LIMITATION SHALL SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THE AGREEMENT.
COMPANY SHALL HAVE NO LIABILITY TO CUSTOMER FOR THE CONTENT OR STYLE OF PUBLICATIONS PROVIDED BY COMPANY IN CONNECTION WITH THE SERVICES, SUCH AS, WITHOUT LIMITATION, THE ALM, GTMH, OR SH PUBLICATIONS, INCLUDING ADVERTISEMENTS THEREIN, FOR THE CONTENT OR STYLE OF BLOGS, ARTICLES OR SOURCES OF INFORMATION INCLUDED IN BRANDED POSTS, OR FOR ANY LISTINGS PROVIDED UNDER LOCAL CONTENT EMAIL MARKETING. COMPANY SHALL HAVE NO OBLIGATION TO RECIRCULATE ANY OF SUCH PRODUCTS AS RESULT OF ANY SUCH CONTENT. COMPANY RESERVES THE RIGHT, AT ANY TIME AND WITHOUT PRIOR NOTICE, TO MODIFY ANY AND ALL ASPECTS OF PUBLICATIONS PROVIDED BY COMPANY, INCLUDING AS TO CONTENT, FORMATTING, QUALITY, MATERIALS, AND THIRD-PARTY APPLICATIONS AND SERVICES USED TO PROVIDE THE PUBLICATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
13. TERM AND TERMINATION.
Services provided under each Order shall be provided for the term stated in
the Order. The Agreement will remain in full force and effect while Customer uses
the Platform or receives Services according to any applicable Order.
Either Company or Customer may terminate the any Order or the Agreement and all Orders thereunder: (a) with the mutual agreement of the other party; (b) at any time when the Customer is not receiving Services under the applicable Order or, if terminating the Agreement, under any Orders; (c) following notice to the other party of a material breach of an applicable Order (as the basis for terminating such Order) or the Agreement (as a basis for terminating each applicable Order affected by such breach or as a basis for terminating all Orders if all Orders are affected by such breach) by such other party that such other party does not cure within thirty (30) days of such notice; or (d) if the other party (i) files a petition for bankruptcy, (ii) has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing, (iii) admits its inability to pay its debts as they become due, (iv) makes an assignment for the benefit of its creditors, or (v) ceases to function as a going concern or to conduct its operations in the normal course of business. Company may suspend Customer’s rights to use the Platform or receive Services (including Customer’s Account) as an alternative to termination of the Agreement.
13.3 Effect of Termination.
Upon termination of the Agreement, Customer’s Account and right to access and use the Platform and receive Services will terminate immediately. Upon any termination for cause by Company, Customer shall pay any unpaid fees covering the remainder of the term of all Orders after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Company for the period prior to the effective date of termination. Customer understands that any termination of Customer’s Account may involve deletion of some or all of Customer Content from Company’s systems.
All obligations that have accrued prior to the effective date of any termination shall survive and termination of the Agreement. All rights and obligations that by their nature are intended to survive the termination of the Agreement shall so survive, including the rights and obligations of the parties under Sections 3.3, 3.4, 3.5, 3.6, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16.
14. COPYRIGHT POLICY.
Company seeks to respect the intellectual property of others and asks that its Customers do the same. Company has adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials from the Platform. If any person believes that any portion or content of the Platform or made available through the Services unlawfully infringes such person’s copyright(s) in a work and such person wishes to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to Company’s designated Copyright Agent:
• Complainant’s physical or electronic signature;
• Description of the copyrighted work(s) that complainant claims has been infringed;
• Description of the material that complainant claims is infringing and that complainant requests to be removed;
• Sufficient information to permit Company to locate such material;
• Complainant’s address, telephone number, and e-mail address;
• A statement that complainant has 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 the complainant is either the owner of the copyright that has allegedly been infringed or that complainant is 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 (falsity) in a written notification automatically subjects the complainant to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The Designated Copyright Agent for Company is:
1100 First Avenue
King of Prussia, PA 19406
15. DISPUTE RESOLUTION.
15.1 Choice of Law.
The Agreement is governed by the laws of the Commonwealth of Pennsylvania, without regard to conflict of law provisions. The parties agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, to the extent it may in any way be applicable.
15.2 Internal Dispute Resolution.
If any dispute arises between the parties in connection with the Agreement, such dispute shall be presented to the respective senior executives of Company and Customer for their consideration and resolution. Company and Customer thereafter agree to first mediate any dispute or claim arising between them out of the Agreement. Mediation fees, if any, shall be divided equally among the parties involved. If such efforts prove unsuccessful, a party may seek to submit the dispute to arbitration by sending to the other party, by certified mail, a written Notice of Dispute. The Notice of Dispute to us should be sent to our address identified below (“Notice Address”).
15.3 Arbitration Agreement.
Except for disputes brought in small claims court or disputes involving a request for equitable relief (such as an injunction from disclosure of confidential information or misuse of intellectual property), all disputes between Customer and Company arising out of, relating to, or in connection with the Platform, the Services, and/or the Agreement shall be exclusively settled through binding arbitration pursuant to the then-current rules of the American Arbitration Association (“AAA”) for consumer arbitration. There is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. CUSTOMER AND COMPANY AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in the Agreement to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, neither Customer nor Company is entitled to arbitration. This arbitration agreement is subject to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. Notwithstanding any provision in the Agreement to the contrary, Company agrees that if Company makes any future change to this dispute resolution provision, it will not apply to any individual claim(s) that Customer had already provided notice of to Company. Information on AAA and how to start arbitration can be found at www.adr.org.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
15.5 Future Changes to Arbitration Agreement.
Notwithstanding any provision in the Agreement to the contrary, Company agrees that if Company makes any future change to this Arbitration Agreement (other than a change to the Notice Address), Customer may reject any such change by sending Company written notice within thirty (30) calendar days of the change to the Notice Address. By rejecting any future change, Customer agrees that Customer will arbitrate any dispute between Company and Customer in accordance with the language of this Arbitration Agreement as of the date Customer first accepted the Agreement (or accepted any subsequent changes to the Agreement).
15.6 Forum Selection.
If the arbitration procedure in this Section is found unenforceable or not to apply for a given dispute, then the parties agree that the proceeding must be brought exclusively in a court of competent subject matter jurisdiction with geographic jurisdiction over Montgomery County, Pennsylvania, or any part thereof.
15.7 Attorneys’ Fees.
If any party commences an arbitration or litigation proceeding without first attempting to resolve the matter through internal dispute resolution and mediation, then that party shall not be entitled to recover attorneys’ fees, even if that party would otherwise be entitled to do so. The prevailing party in any arbitration or litigation arising under the Agreement shall be entitled to recover reasonable attorneys’ fees.
16.1 Changes to Master Terms.
Customer agrees that Company may modify these Master Terms at any time by adding new terms or by deleting or amending existing terms in these Master Terms. Such modifications will be effective as of the date that the updated terms are posted on Company’s website or through the Platform (“Effective Date”). Customer’s continued access to and use of the Platform or Services after the Effective Date constitutes Customer’s acknowledgment of such modifications and Customer’s agreement to abide, and be bound, by the Agreement as modified to include the modified Master Terms.
16.2 Access and Use Where Prohibited.
Access to and use of the Platform and Services are unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement.
16.3 Operation of the Platform from the United States of America.
By accessing and using the Platform and receiving the Services, Customer acknowledges and agrees that Company controls and operates the Platform and the Services from its offices in the United States of America. Unless expressly stated to the contrary, Company makes no representation that the Platform or Services are appropriate or will be available for use in other locations. Unless otherwise explicitly stated, all marketing or promotional materials found on or accessible through the Platform or Services are solely directed to individuals, companies, or other entities located in the United States of America. Company reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area. Any offer for any feature, product, or service made on or through the Platform or Services is void where prohibited. If Customer accesses or uses the Platform or receives the Services from outside the United States of America, Customer is entirely responsible for compliance with applicable local laws and other applicable laws. Customer may not use any portion of the Platform or Services in violation of applicable export laws and regulations.
All notices relating to the Agreement may be given by addressing them
to the other party at the addresses set forth in an Order (or at such other addresses as may be designated by written notices given in the manner designated herein) by (a) personal delivery; (b) commercial overnight courier with written verification of actual receipt; (c) registered or certified mail; or (d) email, effective upon acknowledgement of receipt by non-automated means (which acknowledgement shall not be unreasonably withheld, conditioned, or delayed).
The Agreement constitutes the entire agreement between Customer and Company regarding the use of the Platform and receipt of Services and supersedes all prior understandings, representations, and discussions. No failure or delay by either party in exercising any right, power or remedy under the Agreement shall operate as a waiver of any other right, power or remedy. The headings and section titles in the Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Nothing contained herein shall be construed to establish an employment, partnership, or joint venture relationship between Customer and Company. The terms of the Agreement shall be binding upon and inure to the benefit of the successors and permitted assignees of the parties. The Agreement, and Customer’s rights and obligations under the Agreement, may not be assigned, subcontracted, delegated, or otherwise transferred by Customer without Company’s prior written consent, which shall not be unreasonably withheld or delayed, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. In the event Company’s performance of the Agreement, or any obligation hereunder, is prevented, restricted, or interfered with by reason of acts of God or of the public enemy, acts of the Government in its sovereign capacity, fires, floods, epidemic, pandemic, public health emergency, strikes, picketing or boycotts, or any other circumstances caused by natural occurrences or third party actions beyond the reasonable control and without the fault or negligence of Company, Company shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction or interference.
17. COMPANY CONTACT INFORMATION.
1100 First Avenue
King of Prussia, PA 19406