PLEASE READ SECTION 12 BELOW CAREFULLY. SAID SECTION AFFECTS YOUR LEGAL RIGHTS WITH REGARD TO ANY DISPUTES BETWEEN YOU AND COMPANY.
In consideration of the promises and mutual covenants herein, the Parties agree as follows:
Capitalized terms within this Agreement shall have the meanings set forth below.
1.1 “User Data” means data regarding by User, including but not limited User’s personally identifiable information,that is submitted by User for use with, or in conjunction with its use of, the Services.
1.2 “Provider” means the dog and/or pet service providers who have made their business information available to Users via the Services. Providers are subject to additional terms as outlined in the Provider Terms and Conditions.
1.3 “Application” means Company’s mobile application, via which you may access the Services.
1.4 “Services” means the Company’s Provider directory services provided via the Website and/or Application. The Services are a means for Users to find, research, review, and contact Providers.
1.5 “Website” means Company’s public website at the following URL: Leashpros.com. The term “Website” does not include the Company’s Services (as defined above) regardless of the domain name used to access such Services.
1.6 “User Content” means any content furnished by User, whether created in-house or sourced from one or more third parties, to be used in conjunction with, submitted to, or collected by the Services. User Content may include text, images, photos, audio, video, data in any other form, and all other forms of copyrightable material.
2.1 Use of the Services. During the Term, User may access and use the Services, solely in accordance with this Agreement, and in no instance in any manner not originally contemplated by this Agreement. User shall at all times adhere to any acceptable use policies published and/or modified by Company from time to time. Failure to adhere to such policies by User shall be considered a breach of this Agreement. The posting of objectionable content and the abuse of the Service by Users is strictly prohibited. Company shall have sole discretion with respect to what constitutes “abuse” and “objectionable content”.
2.2 Services Revisions. Company may revise Services features and functions at any time, including without limitation by removing such features and functions, or removing one or more Services altogether. In no case shall Company be liable to User for making such changes.
2.3 User Content. User warrants that it possesses all ownership rights and/or license grants necessary to make use of the User Data as contemplated by this Agreement. User shall indemnify Company and its Affiliates against any action or claim that User’s use of the User Data infringes the intellectual property rights of any third-party. User hereby grants to Company a non-exclusive, royalty-free, worldwide, irrevocable, transferable, sublicensable, perpetual license to use, display, reproduce, make derivatives from, and distribute User Data as necessary to offer, display, operate, market, sell, and improve the Services at Company’s sole discretion. The foregoing license grants include licenses to the image and likeness of any individual appearing in the User Content. The foregoing license grant is a condition of User’s use of the Services, and User acknowledges and agrees that access to the Services provided by Company is good and sufficient consideration in exchange thereof. For the avoidance of doubt, the foregoing license grants allow Company to edit and use User Content to advertise the Services, the Providers, and the Providers’ services.
2.5 You, as an Individual. All Users, including you, as an individual, must be 18 years or older to access or use the Application, Website, and/or the Service. If you are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to Company that you have the authority to bind such Entity and its Affiliates to this Agreement. If you do not have such authority, you must not accept this Agreement and may not access or use the Application, Website, or Service.
3.1 Ownership. Company owns all worldwide right, title and interest in and to the Application, Website, and Services including without limitation all software used to provide the Services, and all the graphics, user interfaces, logos, and trademarks reproduced through the Services, all derivatives thereof, and all worldwide intellectual property rights therein. This Agreement does not grant User any intellectual property license or rights in or to the Application, Website, the Services, or any of their components. User recognizes that the Application, Website, Services, and their components are protected by copyright and other laws.
4.1 Fees. Some portions of the Services may incur a fee. User will pay Company the fees for the Service or the selected portion thereof as set forth on the Website or in the Application (the “Fee”). If your membership plan or subscription involves a recurring subscription or membership fee, you expressly understand and agree that you will automatically be charged this fee, and you authorize us (without notice to you, unless required by applicable law) to collect the then-applicable fees and any taxes using any credit card we have on record for you. Failure to have a valid payment method on file may constitute a breach of these terms.
4.2 Payment; Late Payment. If Company has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and one-half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Company. Provider shall reimburse Company for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
4.3 Refund of Fees. Fees already paid to Company shall not be refunded except upon termination due to a material breach of the Agreement by Company, upon which a prorated portion of any prepaid fees shall be returned to User.
5.2 Risk of Exposure. User recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, User assumes such risks. Company offers no representation, warranty, or guarantee that User Data will not be exposed or disclosed through errors or the actions of third parties.
5.3 Data Accuracy. Company will have no responsibility or liability for the accuracy of data uploaded to the Service by User, any Provider, or any third-party, including without limitation User Data. All such information is provided to User “as-is” without warranty of any kind.
5.4 Data Deletion. Company may permanently erase User Data if User’s account is delinquent, suspended, or terminated for 30 days or more.
5.5 Excluded Data. User represents and warrants that User Data does not and will not include, and User has not and will not upload or transmit to Company's computers or other media, any data (“Excluded Data”) in violation of any applicable laws or regulations (the “Excluded Data Laws”). USER RECOGNIZES AND AGREES THAT: A.) COMPANY HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND B.) COMPANY’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
5.6 Aggregate & Anonymized Data. Notwithstanding the provisions above, Company may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to User Data with the following removed: personally identifiable information and the names and addresses of User and any of its Users or Users.)
5.7 Company’s Role and Third Party Content. You understand that the Application, Website, and Services act only as a marketing platform and technical interface between Users and Providers, and that Company does not itself verify the qualifications of Providers. Any opinions or statements expressed by a User or Provider are those of such party alone and are not to be attributed to Company. Company cannot and does not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, innocuousness, legality or applicability of anything said, written, posted, displayed or otherwise made available by any User or Provider.
You understand that you may be exposed to content that you find offensive to you, and that you use the Application, Website, and Services at your own risk. Please use caution, common sense, and practice safe trading when using the foregoing.
6.1 Acceptable Use. User will comply with this Agreement and any acceptable use policies published or otherwise made available by Company. User will not: a.) use the Service for service bureau or time-sharing purposes or in any other way allow third-parties to exploit the Service; b.) provide Service passwords or other login information to any third-party; c.) share non-public Service features or content with any third-party; or d.) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service.
In the event that it suspects any breach of the requirements of this Section 6, Company may suspend User’s access to the Service without advanced notice, in addition to such other remedies as Company may have. Neither this Agreement nor any acceptable use policies requires that Company take any action against User or any other third-party for a violation thereof, but Company is free to take any such action it sees fit. If User is an individual, User’s use of the Services shall be solely for User’s personal, internal purposes.
6.3 Access and Interference. You agree that you will not use any robot, spider, scraper or other automated means to access the Services for any purpose without our prior express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content from the Application, Website, or Services without the prior expressed written permission of Company and the appropriate third parties, as applicable; or (iii) interfere or attempt to interfere with the proper working of the Application, Website, Services or any activities conducted thereon.
6.4 Feedback Integrity; Feedback Export. You may not take any actions that may undermine the integrity of the feedback system.
6.5 Unauthorized Access. User will take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other login information. User will notify Company immediately of any known or suspected unauthorized use of the Service or breach of its security and will use best efforts to stop said breach.
6.6 Users & Service Access. User is responsible and liable for: a.) Users’ use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate any acceptable use policies or the requirements of this Agreement applicable to User; and b.) any use of the Service through User’s account, whether authorized or unauthorized.
6.7 Malware and Spam. User will not publish or link to malicious content or code intended to damage, disrupt, compromise, or exploit a User’s or Provider’s browser, device, account, or API key or to compromise an individual’s privacy in any manner. User will not use the Services or any APIs to send spam or otherwise distribute unwanted content and code. Company reserves the right, in its sole discretion, to determine what constitutes spam and/or malware.
7.1 Right to Do Business. User warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
7.2 Disclaimer. User assumes sole responsibility and liability arising from the use of the Service and for conclusions drawn therefrom. Company shall have no liability to User for any claims, losses, or damage that would not have occurred but for the actions or omissions of any other User or Provider.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE. WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
8.1 Liability Limits. IN NO EVENT SHALL COMPANY BE LIABLE TO USER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO USER IN CONNECTION WITH THIS AGREEMENT, OR USER’S ACCESS TO AND USE OF THE SERVICE, EXCEED ALL AMOUNTS RECEIVED BY COMPANY FROM USER IN THE SIX (6) MONTH PERIOD PRECEDING THE ACTION GIVING RISE TO THE LIABILITY, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
8.2 Acknowledgment. The Parties acknowledge that the limitations and exclusions contained in this Section 8 and elsewhere in this Agreement have been the subject of negotiation between the Parties and represent the Parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the Parties acknowledge and agree that a.) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and b.) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
9.1 Term. The term of this Agreement (the “Term”) will commence on the date User first accesses the Application, Website, or Services (whichever is first) and continue until User ceases its use of the Service or the Agreement is terminated earlier per the terms below.
9.2 Termination for Breach. Either Party may terminate this Agreement should the other Party fail to cure a material breach of its terms within fifteen (15) days of receiving written notice thereof.
9.3 Effect of Termination. Upon termination of this Agreement, User will cease all use of the Service.
9.4 Survival. The following sections shall survive the termination of this Agreement for any reason: 2.3, 2.4, 2.5, 3, 4, 5, 6, 7, 8, 9.3, 9.4, 10, 11, and 12. Further any provisions that must survive to fulfill their essential purpose shall do so. For the avoidance of doubt, User’s ability to access the Application, Website, and Service shall be terminated in conjunction with the termination of this Agreement.
10.1 Indemnity. User will defend, indemnify, and hold harmless Company and the Company Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or related to User's alleged or actual use of, misuse of, or failure to use the Service, including without limitation: a.) claims by Users or by User's employees; b.) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including User Data; and c.) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through User’s account, including without limitation by User Data. Indemnified Claims include, without limitation, claims arising out of or related to User’s negligence. User’s obligations set forth in this Section 10.1 include retention and payment of attorneys and payment of court costs, as well as settlement at User’s expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Company Associates” are Company’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
10.2 Exclusions. Neither Party will have any indemnification obligations under this Agreement as to any claim, suit or proceeding unless: a.) the Party to be indemnified promptly notifies the indemnifying Party in writing of such claim, suit or proceeding (except that the indemnified Party’s failure to provide the indemnifying Party with prompt notice of any such claim only shall relieve the indemnifying Party of its indemnification obligations to the extent that its ability to defend the indemnified Party against such claim is materially prejudiced by such failure); b.) the indemnifying Party has sole control of its defense and settlement; and c.) the indemnified Party, upon request of the indemnifying Party, cooperates in all reasonable respects; provided, however, that the indemnified Party may, at its own cost, participate in such claim, suit or proceeding. No settlement of a claim, investigation, suit, or other proceeding that involves a remedy other than the payment of money will be entered into by the indemnifying Party without the consent of the indemnified Party, which consent will not be unreasonably withheld.
11.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the California, without regard to its conflict of law provisions.
11.2 Waiver. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
11.3 Notices. Company may send notices pursuant to this Agreement to User’s email contact points provided by User, and such notices will be deemed received 24 hours after they are sent. User may send notices pursuant to this Agreement to firstname.lastname@example.org.
11.4 Severability. In the event any provision of this Agreement or its exhibit(s) is held to be invalid or unenforceable, the remaining provisions thereof shall remain in full force and effect.
11.5 Force Majeure. Company shall not be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond its reasonable control, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, Company will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and Company continues to use commercially reasonable efforts to resume performance.
11.6 Compliance with Laws. User agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States. To the extent any export laws, rules or regulations prohibit Company from complying with any of its obligations hereunder, such failure shall be excused and shall not constitute a breach of this Agreement.
11.7 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
11.8 Assignment/Successors. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that Company may assign this Agreement to an Affiliate, to the surviving party in a merger of Company into another entity, or to an acquirer of all or substantially all of that Company’s business assets. This Agreement will be binding upon and inure to the benefit of the respective permitted successors and assigns of the Parties.
11.9 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
11.10 Non-Exclusive Remedies. Unless expressly set forth as an exclusive and/or sole remedy, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
11.11 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
11.12 Third-Party Beneficiaries. This Agreement is intended for the benefit of the signatories and is not intended to benefit any third-party except as expressly stated herein.
11.13 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
11.14 Amendment. Company may amend this Agreement from time to time by posting an amended version on its Application or Website. Should said amendment materially affect User’s rights, Company shall either send User e-mail notice thereof or post conspicuous notice thereof on the Application or Website, not less than fifteen (15) days prior to the effective date of said amendment. User’s continued use of the Service following the effective date of an amendment will confirm User’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 11.14, Company may revise the privacy and acceptable use policies at any time by posting a new version at the website, and such new version will become effective on the date it is posted.
11.15 Copyright Complaints. Company respects the intellectual property rights of others and shall respond expeditiously to properly reported instances of infringement thereof. User agrees to report instances of alleged copyright infringement in accordance with 17 U.S.C. § 512(c)(3), or per other applicable law. Company reserves the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Company’s designated agent for receipt of notice of alleged copyright infringement on the Services is:
Designated agent: Copyright Infringement Notices
Leash Pros LLC
137 N. Larchmont, Suite 177
Los Angeles, CA 90004
If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by Company or the alleged infringer as the result of Company relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Company has the right, but not the obligation, to monitor any materials submitted by you or otherwise made available on the Services, to investigate any reported or apparent violation of this Agreement, and to take any action that Company in its sole discretion deems appropriate, including termination hereunder.
Please read this section carefully. It affects your legal rights concerning any disputes between you and Company.
12.1 Any controversy or claim arising out of, relating to or connected with this Agreement, or the breach thereof, shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment confirming the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Any arbitration under this Agreement shall be administered by and held in the regional office of the American Arbitration Association selected by you. The arbitrator(s) shall have no authority to award punitive damages, but may award equitable relief. The arbitrator(s) shall enforce the terms of this Agreement, and to the extent it is necessary and appropriate to go outside the terms of the Agreement to reach a decision, the arbitrator(s) shall follow the applicable law.
Any proceedings to resolve or litigate any dispute, whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, neither you nor Company will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you or Company acts or proposes to act in a representative capacity. You and Company further agree that no arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of you, Company, and all parties to any such arbitration or proceeding.
12.2 You may opt-out of the arbitration and class action waiver clause of Section 12.1 above by sending an e-mail in the below format with the below information to email@example.com within 30 days of your agreement to these terms. By doing so you agree to submit to the exclusive jurisdiction of any State or Federal court located in Los Angeles County, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
I opt out of arbitration with Company. My Services account information is as follows:
Services credentials (login and password):
Your name and address:
Date of Services signup:
Date of receipt of these Services terms:
Updated May 22, 2019
Many web browsers allow the option to stop accepting new cookies or disable existing ones. Please note that if you disable cookies on your device, some features of our Website may become unavailable and it may invalidate opt outs that our cookies use to recognize your devices.4.2 You May Request Deletion of Personal Information. You may request that Company delete personal information (either your own, or a third-party’s at said third-party’s request). However, you acknowledge and agree that doing so shall relieve and release Company from any liability, obligation, claim, or other damages related to or arising from said personal information, including but not limited to any obligation with respect to any disputed transactions. 4.3 No Sensitive Information. You acknowledge and agree that the information you are providing to Company for the purposes of performing the Services is not sensitive in nature (i.e., is not personal information specifying medical or health conditions, racial or ethnic origin, political opinions, religious or philosophical beliefs, etc.). 5. LEVEL OF SECURITY. 5.1 Level of Security. Company shall use commercially reasonable measures in line with industry standards to protect your information, including but not limited to electronic and administrative safeguards designed to help make your personal information secure. We will make reasonable attempts to provide you with notice in the event of a security breach. Please recognize no transmission over the internet or type of electronic storage is ever 100% secure. Therefore, we are unable to guarantee its absolute security. If you have any questions or concerns about security on our Application, Website, or Services you can contact us at firstname.lastname@example.org. 6. DISCLOSURE. 6.1 When Will We Disclose Personal Information. We may share your personal information with third-parties when necessary to provide the Services (such as to our vendors); when we have a good faith belief it is necessary by law; to respond to legal process; to investigate fraudulent or suspicious activity; to protect the safety and lives of people; to protect the rights or property of Company, its affiliates, and third-party vendors; as required by law enforcement, such as to comply with a subpoena, or similar and other legal process; and to any other third-party for which you provide consent to disclose your information. We shall not disclose your personal information to third-parties for their advertising and marketing purposes absent your express consent.
137 N. Larchmont Blvd Suite 177
Los Angeles, CA 90004
PROVIDER TERMS AND CONDITIONS
Company and Provider may be referred throughout the Agreement individually as “Party” or together as “Parties”.
In consideration of the promises and mutual covenants herein, the Parties agree as follows:
2.1 Provider Listing. As a Provider, you may create a listing on the Service for your business. You warrant that all information you provide in connection with your Provider listing shall be accurate. You understand that Users may post reviews and other User content into your listing page (“User Content”), and that while you will be provided with an opportunity to respond to such postings, you may not be afforded an opportunity to delete or edit such content. You agree that Company shall have no liability for any User Content posted to your Provider listing.
3.1 Provider IP Ownership. Provider owns, and hereby warrants to own, all worldwide right, title, and interest in and to its trademarks and service marks, and any intellectual property, including but not limited to images and text descriptions, posted to the Application and/or Website (the “Provider Intellectual Property”). Provider hereby grants to Company a non-exclusive, irrevocable, royalty-free, worldwide, transferable, sublicensable, perpetual license to use, display, reproduce, make derivatives from, and distribute the Provider Intellectual Property as necessary to offer, display, operate, market, sell, and improve the services at Company’s sole discretion. Provider shall indemnify Company against any third-party claim of infringement arising from or related to the Provider Intellectual Property.
4.1 Confidential Information. By virtue of this Agreement, the Parties may have access to each other’s Confidential Information. “Confidential Information” means all information or knowledge provided by one Party, including such Party’s agents or contractors, to the other relating to this Agreement and the subject matter hereof, whether in physical or electronic form or pursuant to visits to premises and in any form or medium in which such information may be recorded or kept which: a.) if disclosed in writing, is marked as “confidential” or “proprietary”; b.) if disclosed orally, is summarized in writing by the disclosing Party and sent to the receiving Party within thirty (30) days of the initial disclosure; or c.) that given the nature of the information or the circumstances surrounding its disclosure should reasonably be considered as confidential. Confidential Information shall include, but not be limited to, trade secrets; documentation, reports and manuals, algorithms, ideas, concepts, methodologies, test data, test results, testing procedures and processes; technologies and software; techniques; business information; financial information; business plans; User lists; marketing information; sales plans; and/or sales projections. The terms and conditions of this Agreement shall be deemed the Confidential Information of both Parties and neither Party shall disclose such information except to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a bona fide need to know such information, provided that any such third-parties shall, before they may access such information, either a.) execute a binding agreement to keep such information confidential or b.) be subject to a professional obligation to maintain the confidentiality of such information.
4.2 Exclusions. Confidential Information shall not include information that: a.) is or becomes publicly known through no act or omission of the receiving Party; b.) was in the receiving Party’s lawful possession prior to the disclosure; c.) is rightfully disclosed to the receiving Party by a third-party without restriction on disclosure; or d.) is independently developed by the receiving Party, which independent development can be shown by written evidence.
4.3 Use and Nondisclosure. During the term of this Agreement, and for a period of five (5) years after expiration or termination thereafter, neither Party shall make the other’s Confidential Information available to any third-party or use the other’s Confidential Information for any purpose other than exercising its rights and performing its obligations under this Agreement. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with confidentiality obligations that are at least as restrictive as the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
5.1 Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue until Provider ceases its use of the Service or the Agreement is terminated earlier per the terms below.
5.2 Termination for Breach. Either Party may terminate this Agreement should the other Party fail to cure a material breach of its terms within fifteen (15) days of receiving written notice thereof.
5.3 Effect of Termination. Upon termination of this Agreement, Provider will cease all use of the Provider listing Service.
5.4 Survival. The following sections shall survive the termination of this Agreement for any reason: 3, 4, 5.4, 6, and 7. Further any provisions that must survive to fulfill their essential purpose shall do so.
7.1 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
7.2 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.