L2T MEDIA, LLC – TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service (“Terms and Conditions”) constitute part of a legally binding contract between L2T Media, LLC (“Company” or “L2T Media”) and the entity that has executed an Order Form(s) for products and services to be provided by Company (“Customer” or “You”). Company and Customer are individually referred to herein as a “Party,” and collectively as the “Parties.”
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THEY CONTAIN A BINDING AND MANDATORY JURY TRIAL WAIVER PROVISION. BY ACCEPTING THESE TERMS AND CONDITIONS, EITHER BY AGREEING TO AN AGREEMENT WHERE THESE TERMS ARE REFERENCED AND INCORPORATED, CLICKING A WEBSITE BOX OR ACCEPTANCE OPTION, INDICATING YOUR ACCEPTANCE BY ESTABLISHING AN ACCOUNT WITH COMPANY, HAVING AN ORDER FORM WITH THE COMPANY, USING THE COMPANY’S SERVICES, PRODUCTS OR ITS TECHNOLOGY (i.e., L2TMEDIA TECHNOLOGY), YOU AGREE THAT YOU: (A) HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS; (B) YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD; (C) YOU CAN FORM A BINDING CONTRACT; AND (D) YOU ACCEPT THE TERMS AND CONDITIONS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE “YOU” SHALL REFER TO SUCH ENTITY AND ANY OF ITS AFFILIATES. These Terms and Conditions are subject to change by Company from time to time, effective upon posting on Company’s website (www.l2tmedia.com). Changes become effective for Customer upon renewal of the then-current Subscription Term. Continued use of the Company’s Products during the renewal Subscription Term shall constitute Customer’s acceptance of the version of these Terms and Conditions in effect at the time the renewal of the Subscription Term begins.
- DEFINITIONS. As used in these Terms and Conditions, the following capitalized terms and phrases shall have the definitions set forth below:
“Actual Start Date” means the first date that the Products will be provided. For the avoidance of doubt, the Actual Start Date with respect to Paid Media-Based Products will be the first date that Ads begin running with one or more Publishers. The Company will spend the authorized monthly budget between the Actual Start Date and the end of the calendar month.
“Ads” shall refer to one or more advertisements submitted by Company as part of Paid Media-Based Products.
“Advertising” means the placing of Ads by Company with Publishers on behalf of Customer.
“Agreement” means, collectively, these Terms and Conditions (as may be modified as set forth above) and all Order Forms pertaining to Customer.
“Claims” means all claims, actions, causes of action, suits, debts, demands, damages, judgments, costs, expenses, liabilities, duties, bonds, losses, exposures any kind whatsoever, whether direct or indirect, known or unknown, matured or unmatured, and whether based on any Laws.
“CRM” shall refer to the Customer’s customer relationship management data and systems.
“DMS” shall refer to the Customer’s Dealer Management System, including any DMS data.
“Fees” means, collectively, Subscription Fees, any Set-Up Fees, and any other fees provided for in any Order Form.
“Laws” means any local, state, Federal, international, or non-U.S. law, statute, ordinance, regulation, rule, order, judgment, or opinion by any government, governmental agency, quasi-governmental agency, or any private body with any rulemaking authority granted by any government, including laws intended to protect consumer data, customer information, personal data and information (collectively, “Privacy Data”), including without limitation under the Gramm-Leach-Bliley Act (as well as its implementing regulations and Privacy Rule) (“GLBA”), the Fair Credit Reporting Act, the Federal Trade Commission Act, the Health Insurance Portability and Accountability Act of 1996, the CAN-SPAM Act, the privacy laws of any state, Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”), the Data Protection Act of 2018, and the General Data Protection Regulation.
“L2T Confidential Information” means information concerning the business of the Company, its agents, affiliates and/or third party vendors, whether or not reduced to writing, including without limitation information in any Order Form and information pertaining to any protectible intellectual property (including any software, source code, and computer programs), developments, techniques, data, know-how, methodology, formulations, benchmarks, research, processes, technology, designs, materials, ideas, plans, trade secrets, customers, proprietary information, accounting data, and other information relating to the business of the Company.
“L2TMedia Technology” means L2T Confidential Information, as well as L2T’s AutoQuity platform, and any other L2TMedia Technology which contains or uses software and any other technology of L2T Media and/or its licensors.
“Order Form” means a document signed by Customer, and accepted by Company, setting forth those Products which Customer is purchasing from Company, the cost of such Products for each Subscription Term, the Target Start Date and such other terms and conditions as set forth therein.
“Paid Media-Based Products” means those Products with respect to which Company pays Publishers for Advertising on behalf of Customer and includes Ads, Paid Search, Display, Video Advertising, and Paid Social.
“Performance Tracking Codes” means code streams or scripts added to a Customer’s website in connection with the provision of Products.
“Products” means all Company products or services, digital marketing services, and Advertising which Customer has contracted for pursuant to an Order Form, which may include Paid Media-Based Products, Search Engine Optimization (“SEO”), Reputation Management, and Social Impact Services.
“Publishers” shall refer to one or more online businesses where Company may place Advertising on behalf of Customer.
“Set-Up Fees” means a one-time charge to establish one or more Products as set forth in an Order Form.
“Subscription Fees” means the Company’s charges for the Products for each Subscription Term, as set forth in an Order Form, and as subject to adjustment as provided in Section 4.
“Subscription Term” means each successive period, as provided in Section 3, during which the Products will be provided.
“Target Start Date” shall refer to the day Customer has requested that provision of the Products commence.
“Usage Statistics” means any non-customer or consumer identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use of any website (such as metadata, aggregated data, analytics, security findings or discoveries, etc.), including as may be derived from any aspect of Products.
2. CONTRACTING FOR PRODUCTS.
(A) Customer has agreed to purchase, and Company has agreed to provide to Customer, a subscription to those Products indicated on an Order Form during the Subscription Term. Customer’s execution of an Order Form is its authorization for Company to enter into such agreements on behalf of Customer with third parties as Company may deem necessary to provide Products. The Order Form will stipulate Customer’s requested Target Start Date for Products ordered. Customer acknowledges that, for Paid Media-Based Products, Company requires receipt of the executed Order Form at least ten (10) business days prior to the Target Start Date of such Products or to otherwise set up and launch Customers account with Company on all advertising networks (e.g., Google, Amazon, Meta, etc.) Customer agrees that the Company shall have no liability or be deemed in breach of this Agreement (and no refund of Fees shall be due) if the Actual Start Date is later than the Target Start Date.
(B) Customer acknowledges that Company’s provision of the Products is subject to the following: (i) Customer’s provision to Company of reliable, accurate, current, and complete information as required by Company to provide the Products; (ii) Customer’s making of timely decisions and obtaining any required management approvals; (iii) Customer’s compliance with the directions and instructions provided to Customer regarding the Products; and (iv) Customer’s compliance with the terms of this Agreement.
3. SUBSCRIPTION TERM AND TERMINATION; CONFIDENTIALITY.
(A) The initial Subscription Term shall commence on Company’s acceptance of an Order Form and shall continue until the end of the calendar month following the ninetieth (90th) day thereafter. The Subscription Term shall then automatically renew for each calendar month thereafter until the Order Form is terminated by either Customer or Company on no less than thirty (30) days’ prior written notice. Notwithstanding the foregoing, Company may stop providing a Product at any time, with or without cause (including due to the actions of a Publisher), upon written notice to Customer. In the event that the provision of any Product is terminated with or without cause by Company prior to the end of a Subscription Term, Customer’s sole remedy and Company’s sole liability therefore shall be Company’s issuance of a refund in the amount of the unearned portion of the Subscription Fee for the applicable Product(s) for the then-current Subscription Term. The refund shall be in the form of a credit against future Subscription Fees unless the Subscription Term is not renewed, in which case the refund will be paid within ten (10) business days after the end of the then-current Subscription Term.
(B) Upon termination of the Agreement: (i) the provision of and Customer’s access to the Products shall immediately cease; (ii) Customer’s My Access Point account password shall be disabled; and (iii) and all related information, files, and content associated with or inside its account (or any part thereof) shall be deleted by Company. All sections of these Terms and Conditions which by their nature should survive termination of this Agreement shall survive such termination, including, without limitation, the provisions of Sections 3(A)-(B), 12(A), 13, 14, 15, 16, 17, and 18 through 25.
(C) During the existence of this Agreement, and thereafter, indefinitely, Customer acknowledges and agrees that it: (i) may receive or be exposed to L2T Media Confidential Information as a result of this Agreement and/or underlying Products for Customer; (ii) shall not use L2T Confidential Information for any purpose other than to fulfill any obligations under any Order Form or this Agreement; and (iii) and shall not disclose L2T Confidential Information to any third party, or Customer employees, agents or independent contractors, except if such persons need to know such information and are bound by confidentiality obligations at least as restrictive as those contained herein. Customer shall take all steps necessary to protect L2T Confidential Information to, at least, the same extent it protects its own similar information, but in no event using less than reasonable care. The Customer’s obligations of confidentiality shall not apply to information which: (i) is obtained from a third party, unless such third party is subject to a nondisclosure obligation known to Customer; (ii) is in or enters the public domain not as a result of action by the Customer; (iii) is independently developed by Customer without use of or access to L2T Confidential Information; (iv) was in the Customer’s lawful possession prior to the disclosure by Company, unless Customer is under a nondisclosure obligation to the Company with respect to such possession; or (v) is required to be disclosed by Laws or court order; provided, however, that in the event of any such required disclosure, the Customer shall provide Company with prompt written notice thereof and shall cooperate with the Company in any attempt to quash, limit or otherwise prevent disclosure. For avoidance of doubt, Company shall have the right to use Customer’s data provided in connection with this Agreement or performing under any Order Form, as necessary to provide the Products and as otherwise permitted by this Agreement. Nothing in this Agreement is intended to prohibit Company from using the general knowledge and experience gained by Company in the provision of Products or performing under any Order Form.
4. FEES AND PAYMENT TERMS.
(A) In consideration of Company’s provision of the Products, Customer agrees to pay Company the Fees. Company will issue an invoice for Products on a monthly basis commencing on the date of the Order Form for the first month of the initial Subscription Term and, thereafter, in advance, on the first business day of each calendar month during the Subscription Term. Payment is due on receipt of a Company invoice. Each such invoice will reflect Fees due to Company. Subscription Fees will not be pro-rated to the extent that the Actual Start Date differs from the first of the calendar month. All charges for Products are payable in U.S. dollars and are exclusive of any sales, use or other applicable taxes. Customer shall promptly pay all such taxes and any associated interest and penalties. All payments by Customer shall be made without any restriction (including restrictive endorsements), set-off, counterclaim, or deduction.
(B) Any payment not received from Customer within fifteen (15) days after the date of the invoice may accrue, at Company’s sole, absolute, and exclusive discretion, late charges at the rate of twelve percent (12%) per annum, or the maximum rate permitted by Laws, whichever is lower, after such fifteenth (15th) day until the date paid. If Customer’s account is more than twenty-one (21) days past due, Company reserves the right to suspend the provision of Products. Should Company have to initiate a collection action, including litigation, to recover Fees, Customer agrees to pay Company for all such costs of collection or litigation, including Company’s reasonable attorney’s fees.
5. CUSTOMER WEBSITE.
In connection with the provision of Products, it will be necessary for Company to place Performance Tracking Codes on Customer’s website(s). Customer agrees not to prevent the installation or removal while Company is providing Products to Customer of such Performance Tracking Codes. Customer further agrees not to prevent and to provide access to its website for purposes of SEO implementation and fulfillment (“SEO Services”). Customer acknowledges that Company is not a website provider or vendor, and that Company will rely solely and exclusively upon Customer’s website provider or Customer staff for placement of the Performance Tracking Codes and to ensure Customer’s obligation not to remove Performance Tracking Codes or impede access by Company to Customer’s website for SEO Services. Nothing in this Agreement entitles the Customer to rely on the Company for advice as to its website(s) and Company shall not be liable in the event that Customer’s website provider or other website staff fails to assist in placement of the Performance Tracking Codes/SEO Services or removes or impedes the Performance Tracking Codes/SEO Services. Furthermore, in the event that Customer changes website providers or support staff, website URLs or website layout, Customer agrees to provide at least ten (10) business days advance written notice to Company of such changes. Company, upon request by Customer and subject to an additional fee, to be determined, will update existing content within thirty (30) days after such changes are implemented.
6. ADVERTISING INFORMATION, MATERIALS & MODIFICATIONS.
(A) Company shall determine, in the exercise of its sole, absolute, and exclusive discretion, which Publishers to use in connection with Products, including Paid Media-Based Products. Customer acknowledges that Company does not produce, operate, control, or transmit the Internet sites or services on which Products may appear or control how the Products are positioned, posted, or presented. In addition, Customer acknowledges that the rules for displaying Products are controlled by the Publisher and, as such, Company makes no guarantee or warranty about when, where, or how Products will be displayed. Company shall use its reasonable commercial efforts to prevent failure of proper performance by Publishers with which Company has entered into agreements on behalf of Customer but shall not be liable or responsible for such failure of performance or for any delay, omission, or error in any Products or the provision thereof.
(B) All contents of Products are subject to Company’s approval. Company reserves the right to reject or cancel any Products or Publisher position commitment, at any time, for any or no reason, in Company’s sole, absolute, and exclusive discretion.
(C) Customer agrees that Company has the right but not the obligation to make modifications to Products and further understands that once Products are delivered to Publisher, Customer may be limited in its ability to make further modifications to said Products. Customer hereby grants to Company a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute Products and any derivative works based thereon created by Company as well as the right to sublicense all rights necessary for the Products to be published by the Publisher.
(D) Customer understands that Company is under no obligation and may not be able to provide any samples of Products in the context of any Publisher’s website.
7. STATISTICS AND REPORTING.
Company makes no warranty or guarantee with respect to usage, visit, or cost per visit statistics for any Products or as to Usage Statistics. Customer acknowledges that any Usage Statistics provided by Company shall be conclusive and binding on Customer for all purposes of this Agreement and not subject to review or challenge by Customer for any reason, including in any dispute resolution forum. In addition, Company makes no representation and Customer shall not rely as to any Usage Statistics or any data derived from sources that use Google Analytics codes, conversion codes, or remarketing tags from which reporting accuracy is dependent on proper code placement by any website provider or support personnel. Customer acknowledges that Company may use and promote Usage Statistics for any purpose, including enhancing Products, the delivery or provision of Products, and/or in any other manner.
8. LOCAL CITATION SERVICE.
Company shall determine, based on its expertise, and in its sole, absolute, and exclusive discretion, which local citation websites to use with respect to Customer Products. Customer agrees to provide Company with access to Customer’s local citations in order to update listings or other information necessary to implement Products. In the event that access to a Customer’s local citations cannot be granted, Company shall inform Customer. In such event, Customer shall not hold or seek to hold Company liable, including for updating such listings, and Customer acknowledges that Company shall have no liability under such circumstances.
9. OEM COMPLIANCE.
Company will use its reasonable commercial efforts to provide the Products in accordance with Customer OEM’s compliance guidelines, but Company shall not be liable for any penalty imposed on Customer for such non-compliance. Furthermore, Company is not responsible for submitting any documentation directly to any OEM for co-op reimbursement or otherwise. As to such guideline requirements, Customer shall not hold or seek to hold Company liable for any such non-compliance, and Customer acknowledges that Company shall have no liability under such circumstances.
10. MANAGED DATA SERVICES.
In order to ensure optimal performance of certain Products, Company must have access to Customer’s DMS and CRM, including as hosted by a third party vendor (the “DMS Vendor” or the “CRM Vendor,” and collectively, “DMS/CRM Vendors”). Customer hereby consents to Company’s and the DMS/CRM Vendors’ access to and use of information and data from the DMS and/or CRM (“DMS/CRM Data”) to provide the Products and otherwise exercise its rights hereunder, and any obligations under any Order Form, and shall provide such other written consents or authorizations as may be needed in connection therewith. Company shall be entitled to appoint an agent (“Company Agent”) to access the Customer’s DMS/CRM Data on Company’s behalf, and the foregoing consent shall apply to the Company Agent. Customer further agrees not to remove or restrict or impede access by Company to its DMS/CRM Vendors and DMS/CRM Data. In connection with the foregoing, Customer hereby consents, without limitation, and subject to Company’s sole, absolute, and exclusive discretion to Company placing or using “L2TMedia Technology” on Customer’s website allowing Company to track Customer website users and visitors and their related use of the Customer website, including as to DMS/CRM data.
(A) Customer shall at all times, including through any website that it maintains, or utilizes, in any fashion, maintain and protect, and implement all necessary safeguards (including consumer facing and other privacy policies) Privacy Data, Benchmark Data and DMS/CRM Data (collectively, the “Agreement Data”), including under any Laws. Customer represents and warrants to Company that it shall implement such measures and steps as to any Agreement Data that it maintains, processes, obtains, or otherwise has access to for any reason, including Agreement Data that it transmits or is transmitted to the Company. Customer shall further ensure that all consumers, customers, providers, and sources of Agreement Data shall take all steps necessary, including the provision of comprehensive notices and/or permits as to (i) the use of Agreement Data, (ii) the collection of Agreement Data, and (iii) the Company’s or the Company’s Agent’s collection and use of Agreement Data and its use of L2TMedia Technology and any Agreement Data collected therefrom. Customer shall also include in any policy or other measures contemplated hereby as to Google Analytics, including any agreement that Customer may have that pertains to Google Analytics.
(B) Company acknowledges that it is Customer’s business practices to conduct marketing and promotional campaigns, including through its engagement of Company to provide Products. Company shall use its best commercial but reasonable efforts not to take any actions that contradict or impede the violation of any Laws applicable to Agreement Data, including providing Customer with prompt notice in the event of any known and verified privacy or security breach(es) relating to Agreement Data. Customer shall have the right to terminate this Agreement for Company noncompliance with any Laws applicable to Agreement Data.
(C) By accepting the Terms and Conditions, and hence this Agreement, Customer consents to the transfer of Agreement Data and to the processing of same in the United States and other jurisdictions in which Company operates. Customer represents and warrants that it has the authority to provide Agreement Data for the purposes contemplated in this Agreement. Company shall implement appropriate safeguards to prevent unauthorized access to, use of, or disclosure of Customer’s Agreement Data. The Parties acknowledge, however, that the security of transmissions over the internet cannot be guaranteed, and, as such, Company shall not be responsible for (i) Customer’s access to the internet, (ii) any interception or interruption of any communications or Agreement Data through the internet, or (iii) changes to or losses of Agreement Data through the internet. Customer shall not transfer, shall take reasonable steps to prevent the transfer of, and shall indemnify Company (per the terms of Section 15) for any transfer of Agreement Data for customers, consumers, or persons who have opted out of solicitations by Customer.
11. COLLECTION OF DATA.
(A) In connection with the provision of Products, Company shall be entitled (including using L2TMedia Technology) to collect and use any performance metrics, data, or other information collected or otherwise generated or obtained by Company at any time regarding or in connection with the use or results of Products or the activity resulting from this Agreement (including, without limitation, information regarding “clicks,” “click-throughs,” searches or queries, the percentage of searches that resulted in “hits,” visits to the target website, relevant statistic, sale conversions, or similar data) (collectively, “Benchmark Data”) (i) for purposes of providing the Products, and (ii) for Company’s reasonable legitimate business purposes, including to: (a) develop, use, aggregate and distribute generalized trend, benchmarking, statistical analyses, and usage information (collectively, “Service Analyses”); and (b) market Products of Company; provided, that any such Product Data that is disclosed by Company to third parties shall not contain any information that identifies, or that could reasonably be used to identify, any consumer, customer or any other individual or person, including under any Laws. Company retains all rights in such Service Analyses and to any L2TMedia Technology.
12. OWNERSHIP OF L2TMEDIA TECHNOLOGY.
(A) Company (or, where applicable, Third Party Licensors, defined below) owns, and shall retain, all rights, title, and interest in and to the L2TMedia Technology, and all tangible and intangible property rights therein. Customer shall not, and will not, allow any third party to: (i) use, copy, modify, adapt, translate or otherwise create derivative works of the L2TMedia Technology; (ii) reverse engineer, decompile, replicate, disassemble or otherwise attempt to discover the source code of the L2TMedia Technology; (iii) transfer, lend, lease, license, sublicense, allow access to, or pledge the L2TMedia Technology to or by any other person, including third parties; (iv) use the L2TMedia Technology in anyway inconsistent with L2T’s rights (including use of any service bureau or engaging in any outsourcing whatsoever); or (v) remove any proprietary notices, affixed labels, or product warnings or statements of rights as to or thereon, or related to L2TMedia Technology.
(B) Company has entered into that certain Interface Agreement with THE REYNOLD AND REYNOLDS COMPANY (“REYNOLDS”), pursuant to which the Company, to enhance its Product offerings, utilizes REYNOLDS Interface for data transfer (“Reynolds Interface”) and its Interfaced Product (“Interfaced Product”) in its Products. Each Customer, to utilize Company’s Products, agrees and acknowledges as follows:
- • Customer is entitled only to a limited license as to the Interfaced Product that (a) authorizes the operation of the Reynolds Interface only with the Interfaced Product and only for itself; (b) prohibits Customer from copying, disassembling, decompiling, and/or reverse engineering the Interfaced Product and the Reynolds Interface; (c) reserves all rights, title and interest in and to the Reynolds Interface to REYNOLDS; and (d) prohibits the Customer from (i) transfer of or access to the Interfaced Product and the Reynolds Interface to or by third-parties, (ii) lending, leasing, sublicensing or pledging the Interfaced Product and the Reynolds Interface, or (iii) from outsourcing uses of the Interfaced Product and Reynolds Interface.
• REYNOLDS product(s) provided in connection with the Company Products contain portions of program code owned by third party licensors and such licensors will be entitled to enforce any such license as an intended third party beneficiary and the obligations of the licensee cannot be modified or terminated without the written consent of such third party licensors; and that ALL LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
• That all rights to use or maintain possession of the Interfaced Product and Reynolds Interface will terminate upon the termination of the agreement between REYNOLDS and Company or the termination of this Agreement, whichever comes earlier.
• That Customer, Company, and Company’s Agent shall comply with all Laws, including the GLBA, the PIPEDA, and any other relevant privacy laws of any relevant jurisdiction.
• To the greatest extent permitted by applicable law, Customer and its DMS Vendor, Company, and Company’s Agent grant permission to access Customer’s new product introductions (“NPI”) to the extent necessary to provide the Products to the Customer (including the Interfaced Product and the Reynolds Interface) and specifically permits REYNOLDS, Company, and Company’s Agent to provide access to Customer’s NPI to one another for that purpose.
(C) To the extent that L2TMedia Technology contains portions of program code (“Third Party Code”) owned by third party licensors (“Third Party Licensors”), such Third Party Licensors will be entitled to enforce these Terms and Conditions as relates to such Third Party Code as an intended third party beneficiary and the obligations of Customer with respect to such Third Party Code cannot be modified or terminated without the written consent of such Third Party Licensors. ALL THIRD PARTY LICENSORS DISCLAIM ALL WARRANTIES RELATING TO THE THIRD PARTY CODE, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WILL IN NO EVENT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM USE, OR INABILITY TO USE SUCH THIRD PARTY CODE, EVEN IF THEY KNEW OF THE POSSIBILITY OF SUCH DAMAGES.
13. CUSTOMER REPRESENTATIONS AND WARRANTIES.
Customer represents, warrants and covenants that: (i) it has the right to enter into this Agreement, to perform its obligations hereunder and to grant the rights granted herein; (ii) it holds or has obtained all necessary rights, licenses and consents to permit the use, reproduction, distribution, transmission, display, and creation of derivative works of Products or any other materials delivered by Company pursuant to this Agreement or any Order Form; (iii) it has authority to transfer to Company all Agreement Data subject to the terms of this Agreement; and (iv) none of the Products will contain material that is libelous, defamatory, pornographic, or contains or will contain any other material that would violate any applicable Laws.
14. COMPANY WARRANTIES.
(A) Company warrants that: (i) it has the right to enter into this Agreement and to perform its obligations hereunder; and (ii) the Products will be provided in a good and workmanlike manner. Customer agrees and acknowledges that Company makes no warranty or guarantee, financial or otherwise, with respect to the results of any Product, and that Company cannot assure (and does not represent, warrant, or guarantee) Customer that Products placed in any manner and for whatever reason will achieve any desired result or objective of Customer.
(B) EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND AS TO THE LEVEL OF SALES, PURCHASES, CLICKS, SALES LEADS OR OTHER PERFORMANCE THAT CUSTOMER CAN EXPECT FROM THE PRODUCTS OR THAT THE PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED. NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE COMPANY, PRODUCTS, THE TERMS OF THIS AGREMENT, OR ANY ORDER FORM. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED “AS IS” AND ANY WARRANTIES HEREIN ARE THE ONLY WARRANTIES APPLICABLE TO THE PRODUCTS.
15. INDEMNIFICATION.
The Customer, and its Affiliates, shall jointly and severally, defend, indemnify, and hold harmless from and against all Claims against the Company, and shall reimburse the Company for any and all losses, liabilities, or damages resulting from all Claims relating to: (i) any breach of this Agreement (including the breach of any representation and warranty contained therein); (ii) any breach of any Laws by the Customer, including as to any Agreement Data; (iii) any breach of any term, obligation, or right set out in any Order Form; (iv) any claim that any Products or other materials provided by Company under this Agreement infringes, misappropriates, or violates any copyright, trade secret, trademark, right of privacy or other intellectual property right, or any Laws; (v) any Products provided to Customer; (vi) any breach of Customer’s obligations to any third party, including OEM compliance guidelines; and (vii) any breach of confidentiality by Customer including as provided in Section 3(C). The indemnity set forth in this Section 15 shall include payment by Customer of Company’s reasonable attorneys’ fees and costs as required to enforce the terms of said indemnity and allow Company to choose its own counsel in defense or enforcement of the provisions hereof.
16. LIMITATION OF LIABILITY.
(A) Customer expressly understands and agrees that Company shall not be liable under this Agreement, any Order Form, or in connection with the Products for any indirect, incidental, special, consequential, or exemplary damages, or for damages for loss of profits, goodwill, use, data or for other intangible losses regardless of the cause of such damages or whether in contract, tort, Company’s intentional conduct, or otherwise. Without limiting the generality of the foregoing, Company shall have no liability for damages resulting from (i) the use, the inability to use, or results of the Products, (ii) the cost of procurement of substitute goods and services, in each case even if Company has been previously advised of the possibility of such damages, or (iii) any act or omission, or any event directly or indirectly resulting from any act or omission, of third parties, including a Force Majeure Event. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, COMPANY, OR PRODUCTS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER CUSTOMER KNOWS, OR SHOULD HAVE KNOWN, THAT ANY CAUSE OF ACTION FOR LIABILITY HAS ACCRUED.
(B) In no event shall Company’s aggregate liability for any breach of this Agreement, or for any remedy relating to the Company’s performance under this Agreement, whether in contract, tort, or any other theory of liability (including Company’s intentional misconduct), exceed the amount actually paid to Company by Customer for such specific Product with respect to the specific Subscription Term in which the event leading to any claim of liability or damages occurred.
(C) Customer acknowledges that Company has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the Parties as reflected in this Agreement.
17. FORCE MAJEURE.
Company shall have no liability for any failure or delay in performing this Agreement resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, acts of Publishers or any third party, or any other condition affecting production or delivery, including as to Products and the use of L2T Technology, in any manner beyond the control of Company (a “Force Majeure Event”). In the event of a Force Majeure Event, Company shall notify Customer in writing as promptly as is practicable of the occurrence and cessation thereof. Performance of the affected obligations of a Party will be extended for a period equal to the duration of the Force Majeure Event.
18. CHOICE OF LAW.
This Agreement shall be governed by the laws of the State of Illinois, without regards to conflicts of law principles, except to the extent that other Laws do not preempt Illinois law.
19. JURISDICTION, VENUE, AND JURY TRIAL WAIVER.
Any action, suit or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced and prosecuted only in a federal or state court sitting in Cook County, Illinois, and the Parties each consent to the personal jurisdiction of such court. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY APPLICABLE ORDER FORM OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY OR DAMAGES OF ANY SORT WHATSOEVER).
20. WAIVER.
Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing and signed by the Parties to be effective. Any waiver under this Agreement in a particular instance shall not constitute a waiver of the same or different rights or breaches in any other instance. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies hereunder (or in any Order Form) at any time will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not prejudice such Party’s right to take any subsequent action(s) or measures.
21. SEVERABILITY OF TERMS.
If any term, condition, or provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful, or unenforceable to any extent, then it is the intent of the Parties that such court apply a rule of reasonableness and modify the provision in question so it will remain in effect to the greatest extent permitted by law. In the event a court finds such procedure to be inappropriate, then such invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
22. TRANSFERABILITY.
Customer may not assign this Agreement or delegate or otherwise transfer any of Customer’s rights, obligations, or duties of performance hereunder, and any purported assignment, delegation or other transfer shall be null and void, ab initio. Company may not assign this Agreement except to a successor-in-interest to the business of Company (or the portion of the business which performs this Agreement). Company may subcontract or delegate its obligations hereunder to the extent that such subcontracting or delegation is of a type which Company undertakes in the normal course of its operations. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.
23. USE OF NAME.
Company shall be permitted to use Customer’s name, trademarks, trade dress and logos to identify Customer as a Company client, including in tangible and electronic marketing materials. Any such use shall be as part of a listing of other Company clients and shall not be in conjunction with wording intended to constitute a specific endorsement by Customer. Such permission shall be a non-exclusive, worldwide, fully paid, and royalty free license to use Customer’s name, trademarks, trade dress, and/or logos.
24. NOTICES.
Any notice, demand or consent to be given hereunder shall be in writing and delivered personally or sent by facsimile transmission (provided a copy is contemporaneously sent by regular mail), registered or certified mail, postage prepaid, or overnight courier service, to the address set forth below the appropriate Party’s signature, or such other address as either Party may designate in accordance with this Section. Notices shall be deemed received at the earlier of actual receipt, three (3) business days following mailing, one (1) business day after facsimile transmission (provided automatic confirmation of transmission is received by the sender), or one (1) business day after deposit with an overnight courier service. To the extent that Company has any notice obligations under this Agreement, Company may also provide notice via email, with confirmation as to receipt by the recipient.
25. ENTIRE AGREEMENT.
The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of a conflict between the provisions in these Terms and Conditions and any Order Form, the provisions of these Terms and Conditions shall take precedence and control over any provisions in any Order Form(s). Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (other than an Order Form) shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void. No modification or amendment of any provision of the Agreement shall be effective unless in writing and signed by the Party against whom the modification or amendment is to be asserted. Customer has read an understands this Agreement, and has had the opportunity to consult with legal advisors, counselors, or other professionals, before entering into this Agreement, and has been provided with all information requested from the Company, and is accepting these Terms and Conditions freely, voluntarily, and without reliance on any representations by the Company, or any of its managers, officers, equity owners, agents and representatives, other than as expressly set forth in this Agreement.
[End of Terms and Conditions of Service]