INTERNET ADVERTISING TERMS AND CONDITIONS
(a) Seller’s performance under this Agreement may be conditioned upon credit approval of Customer. Customer authorizes Seller to obtain a credit report to determine creditworthiness. Unless payment is made by credit card or ACH, Customer agrees to pay all fees specified in the Subscription Form (the “Fees”) within 30 days of date of invoice, all of which shall be priced by Seller and paid by Customer in U.S. dollars. If payment is made by credit card or ACH, Customer expressly authorizes Seller to automatically charge the applicable charge or debit the applicable account on a monthly basis during the term of this Agreement (unless otherwise agreed by the parties) and agrees that any fee increase made in accordance with this Section 2 may also be charged/debited in the same manner, and Customer shall be responsible for any third party fees. All payments received after the due date will incur a late payment charge from such due date until paid at a rate equal to the lesser of 1.5% per month or the maximum rate permitted under applicable law. Customer agrees to pay all of Seller’s costs, including attorneys’ fees, court costs or other costs, incurred in collecting overdue amounts. The Fees do not include sales, use, excise or any other taxes or fees now or hereafter imposed by any governmental authority with respect to the Advertisement. (b) In addition to anything set forth herein, (i) at the start of each Renewal Term (as defined below), the Fees shall increase by a percentage equal to the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) for the previous twelve months (or in the case the contract length is other than 12 months, for the previous contract length term), and (ii) Seller may, with advance notice to Customer by email or through the Product’s on-line account management interface, at any time during a Renewal Term (as defined below) increase the Fees or charge other fees for any portion of the Product or service provided by Seller; provided, however, that if Customer does not agree to the increase or charge implemented solely under this Section 2(b)(ii), then Customer may give written notice of termination within thirty (30) days of Seller’s notice. In the event Customer gives such written notice of termination, Customer shall continue to pay the then-current Fees until the last day of the then-current term of the Listing Plan (In the event Customer terminates a LandWatch Product in accordance with the preceding sentence, Customer shall continue to pay the Fees in place before the proposed increase or charge until the last day of the calendar month in which Customer’s notice of termination is delivered, and the Agreement shall terminate with respect to such LandWatch Product on such date.)
3. Term and Termination
The term for each Product shall begin on the date of signature by Seller, shall continue through the date the Product is uploaded and available for viewing on the Site and shall continue for the initial term specified on the Subscription Form (the “Initial Term”). The term of the Agreement shall continue for successive periods equal to the Initial Term (each such successive period being a “Renewal Term”) commencing on the last day of the Initial Term or the Renewal Term, unless at least (i) 30 days prior to the last day of the Initial Term or Renewal Term either party has provided the other written notice of an intent not to renew, in the event Customer’s then-current Initial Term or Renewal Term is less than 180 days, or (ii) 60 days prior to the last day of the Initial Term or the Renewal Term, either party has provided the other written notice of an intent not to renew in the event Customer’s then-current Initial Term or Renewal Term is 180 days or greater. In the event the Listing Plan is terminated for any reason (including in accordance with Section 2(b)), all remaining Products under this Agreement and any other agreement between Seller and Customer (except for the Land Insight Product) shall concurrently terminate and all Fees due for all Products under all such agreements shall immediately become due and payable, unless otherwise agreed to by the parties in advance in writing. (With respect to the LandWatch Product, where a Listing Plan is not required, the preceding sentence shall not apply.) Customer acknowledges that it is responsible for payment of the Fees for the entire Initial Term and any Renewal Term unless the Agreement is cancelled in accordance with the notice provisions of this Section. Seller reserves the right, in its reasonable discretion, to reject, suspend or discontinue any Advertisements or any portion of the service provided hereunder at any time. Seller reserves the right to refuse to provide Advertisements to anyone for competitive and/or other business reasons including non-payment, and Customer agrees to pay for all Advertisements. If Customer cancels any Product prior to the end of the Initial Term or any Renewal Term, then Customer shall pay a cancellation fee equal to the number of unpaid months remaining in the Initial Term or Renewal Term, multiplied by the monthly Fee for such Product. Either party may immediately terminate this Agreement in the event the other party commits a material breach of this Agreement and such breach is not cured by the breaching party within 30 days of its receipt of notice of such breach from the non-breaching party. To be effective, terminations under this Section must be emailed to firstname.lastname@example.org with respect to the LandWatch Product and email@example.com for all other Products. Seller and Customer may agree to revoke any termination, in which case, this Agreement will remain in effect.
Customer grants Seller a perpetual, irrevocable, royalty-free, transferable, worldwide license to access, edit, store, enhance, modify, adapt, translate, copy, reproduce, distribute, transmit, broadcast, publish, perform and display on any of its Sites or otherwise publicly, prepare derivative works of, and otherwise use Content, and to sublicense such rights through multiple tiers. Seller may use Content and any data aggregated with and/or derived from the Content for any purpose. Seller reserves the right to modify the Sites and Products, and to remove or reject any Content or portion thereof from use on the Sites or Products, in its sole discretion without notice. Customer acknowledges and agrees that it is responsible for uploading Content to the Sites and that Customer shall pay the Fees regardless of the amount of Content uploaded. Customer understands and acknowledges that it is responsible for obtaining all permissions necessary to allow any Content it submits to Seller to be used in accordance with this Agreement.
5. Materials, Products and User Data.
Customer acknowledges that Seller and its licensors have and shall retain exclusive ownership of all proprietary rights to all Materials. Customer may use the Materials solely as provided by Seller and as necessary for Customer to use the Products for their intended purpose in accordance with this Agreement. During the Initial Term and any Renewal Term, Customer may display solely within its own marketing collateral or on its own website the permitted Material listed on www.landsofamerica.com/terms/advertising, or other Materials approved by Seller in advance in writing by Seller (the “Permitted Material”). Customer shall not be entitled to use any Permitted Materials that are not actively marketed or advertised using a paid Seller product or service and Customer must delete or remove any Permitted Material used in Customer’s marketing materials or website once the subject property ceases to be advertised in connection with any Product. Customer shall not use or permit the use of the Products in any unauthorized manner. The Sites, Materials and Products will remain the sole and exclusive property of Seller and its licensors. Customer agrees to protect User Data in accordance with the Law and use User Data solely to fulfill user requests and to provide customer service to the user.
Each party represents and warrants to the other party that it has the right and full power and authority to enter into this Agreement and fully perform its obligations hereunder. Customer represents and warrants that: (a) it will comply with all applicable Laws, (b) it has all rights necessary to grant the rights herein with respect to the Content, (c) it will provide all necessary information for the Advertisement, (d) the Content is free of any viruses, Trojan horses, or other malware, and (e) the Content and any Customer website linked directly to Advertisements do not and will not contain any information or material that: (i) is false, deceptive, misleading, libelous, defamatory, outdated, inaccurate, obscene, or otherwise inappropriate, (ii) infringe or violate any right of a third party, including intellectual property rights, rights of privacy and publicity, and contractual rights, and/or (iii) violate any applicable Laws.
Each party will defend and indemnify the other party and its respective member(s), parent(s), subsidiaries, directors, officers, employees, agents, and vendors from and against any and all claims, demands, liabilities, costs and/or expenses, including reasonable attorneyâ€™s fees, arising out of or related to any third party claims alleging breach of its respective representations and warranties hereunder.
8. No Warranties; Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6 ABOVE, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. SELLER DOES NOT REPRESENT OR WARRANT THAT PRODUCTS OR ADVERTISEMENTS WILL BE FREE OF ERRORS. IN NO EVENT SHALL SELLER OR ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR VENDORS (THE "SELLER PARTIES") BE LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY THE CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THE CONTENT, THE ADVERTISEMENT OR ANY FAULT, INACCURACY, ERROR, OMISSION, INTERRUPTION OR DELAY IN THE ADVERTISEMENT, REGARDLESS OF HOW SUCH LOSS, COST OR DAMAGE ARISES. UNDER NO CIRCUMSTANCE WILL ANY OF THE SELLER PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS, EVEN IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF THE SELLER PARTIES EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT IN THE 3 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. SELLER MAKES NO GUARANTEE WITH RESPECT TO THE SECURITY OR THE EFFECTIVENESS OF THE PRODUCTS.
Customer agrees not to disclose to any party or use for any purpose any non-public business, technical, or other information relating to or provided by Seller, including the terms of this Agreement and Seller’s trade secrets, marketing plans, business plans, product plans, pricing, financial information, software, and intellectual property, and further agrees not to disclose any User Data to third parties. Customer will not sell, lease, license, rent, transfer, or otherwise provide User Data to third parties (other than disclosing User Data to third parties as necessary for such parties to provide the services to users referenced in Section 5 on Customer’s behalf), or use User Data in any other manner, including spam emails or texts, junk mail, or direct marketing.
Customer shall not assign all or any part of this Agreement without Seller’s prior written consent. The parties’ obligations hereunder are binding on their successors, legal representatives and assigns. Customer consents and agrees that Seller may send to Customer and its employees communications, including, but not limited to, email communications about new features or products, advertising content, product feedback and other marketing content, which the email recipient may unsubscribe at any time. Customer will comply with all laws related to emails Customer and/or its employees send using the Product or any service provided under this Agreement, including, but not limited to, the United States’ anti-spam law (CAN-SPAM), European Union’s General Data Protection Regulation (GDPR) and Canada’s anti-spam law (CASL). Subject to the right to optout as provided by Law, Customer consents to receipt of marketing and promotional materials from Seller via facsimile, email or otherwise. This Agreement (which includes all Subscription Forms subject to this Agreement) contains the entire agreement of the parties regarding the subject matter hereof and supersedes all prior agreements, amendments, representations, and understandings of the parties, whether written or oral, with respect to the subject matter hereof. The terms of this Agreement shall not otherwise be waived, altered, modified, amended or supplemented except by a written instrument signed by a duly authorized representative of each party. Handwritten changes to the Agreement made by Customer shall have no effect, even if the Agreement is accepted by Seller for processing and services are subsequently delivered to Customer hereunder. Any notices under the Agreement shall be in writing and sent by electronic mail or by overnight courier, mail or facsimile to the addresses of each party set forth on the Subscription Form. Customer agrees that Seller may include notices on invoices sent to Licensee by regular mail or electronic email. Failure of either party to insist upon strict compliance with this Agreement shall not be considered a waiver of such terms and conditions or any other terms and conditions, which may be enforced at any later date. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable, that provision shall be eliminated and the remaining provisions shall remain in full force and effect. Except for payment obligations, neither party shall be liable to the other party for failure to perform by reason of a force majeure event or any other cause beyond such party’s reasonable control. This Agreement is governed in all respects by the laws of the District of Columbia, without reference to its conflicts of laws principles. The parties hereby agree that all claims arising under or related to this Agreement shall be brought exclusively in a federal or state court in the District of Columbia and hereby irrevocably consent to the personal jurisdiction of such courts. Sections 2, 4, 5 (all but 2nd sentence), 6, 7, 8, 9 and 10 shall survive any termination or expiration of this Agreement. As used herein, the term “including” means “including without limitation.”
Last Updated October 2, 2018