PowerListings – Terms and Conditions
Terms and Conditions
(Last Updated: June 4, 2015)
This Subscription Agreement (this “Agreement”) is a legal agreement between AdPointe, Inc., a Delaware corporation (“AdPointe”, “us” or “we”), and the business by which the individual accepting this Agreement is employed or otherwise engaged (the “Client” or “you”). AdPointe and Client are each referred to herein as a “Party,” and collectively as the “Parties.” This Agreement, together with any other applicable terms and conditions referenced herein, governs in its entirety the relationship between AdPointe and the Client in connection with the Products (as defined below) for which Client has purchased a subscription. By clicking a box indicating your acceptance, you agree to the terms of this Agreement. If you do not agree with the terms of this Agreement, you must not accept this Agreement, and you will not be permitted to use any of the Products or exercise any of the other rights set forth herein.
1.1 Product Subscriptions. AdPointe offers its clients subscriptions to various online products (each, a “Product”). Certain Products may involve distribution of Client Content (as defined in Section 3.5) and/or other interactions with third parties (the “Partners”) that own or operate online business directories, search web sites, social media web sites, mobile apps or other online properties (the “Partner Sites”). Client acknowledges and agrees that (i) all content submitted for any Product shall be subject to the Partners’ character limits, quality standards and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Partner at any time in its sole discretion, or modified by AdPointe or the Partner at any time to comply with such policies, (ii) AdPointe does not guarantee that any content will be displayed on any Partner Site, and (iii) the appearance and/or location of any content placement may change at any time. ADPOINTE SHALL HAVE NO LIABILITY FOR THE AVAILABILITY OF OR ANY CHANGE IN THE PARTNER SITES, FOR ANY DECISION BY A PARTNER TO REJECT OR MODIFY ANY CONTENT SUBMITTED BY CLIENT, OR FOR ANY OTHER DECISION, CHANGE OR OTHER ACTION DESCRIBED IN CLAUSES (i), (ii) OR (iii) OF THE PRECEDING SENTENCE.
1.2 Implementation at Client’s Request. AdPointe may from time to time, at the request of the Client, assist Client with the implementation of certain features that are a part of the Products. This may include interaction with the Client’s website and webpages. Any such assistance provided by AdPointe is at the Client’s own risk. ADPOINTE SHALL HAVE NO LIABILITY FOR THE AVAILABILITY OF OR ANY CHANGE IN THE CLIENT’S WEBSITE OR TO ANY CLIENT CONTENT OR OTHERWISE IN CONNECTION WITH SUCH ASSISTANCE.
Fees and Payment.
2.1 Fees. By purchasing a subscription, you agree to any fee and payment terms that are described herein and/or during the online registration process. Any Product fees are exclusive of any sales or other taxes (other than taxes on AdPointe’s income).
2.2 Provision of Credit Card Information; Payment Terms. You will be required to provide AdPointe with a valid credit card number upon registration for a subscription. You hereby warrant and represent that you have the authority to provide such credit card information to AdPointe and shall be responsible for all charges made thereto. AdPointe will bill your credit card in advance of each Billing Period (as defined below) for the fees incurred for such Billing Period, as well as for any outstanding balances. Your “Billing Period” will be specified by AdPointe at the time of registration, though AdPointe reserves the right to change the term of future Billing Periods at any time. Any and all late payments shall accrue interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by law, whichever is less). In addition, you are responsible for paying any reasonable expenses and attorneys’ fees that AdPointe incurs in connection with collecting late amounts.
2.3 Automatic Renewal. ADPOINTE WILL AUTOMATICALLY RENEW EACH OF YOUR PRODUCT SUBSCRIPTIONS AND CHARGE YOUR CREDIT CARD AT THE BEGINNING OF EACH SUBSCRIPTION RENEWAL PERIOD, SO LONG AS YOUR SUBSCRIPTION HAS NOT BEEN CANCELLED. The automatic charge to your credit card will occur at the commencement of each subscription renewal. You acknowledge that the amount billed each Billing Period may vary for reasons such as promotional rates no longer being applied, changes in your subscription (for example, changes in the number of your locations under your subscription), changes in the amount of applicable sales tax or other reasons; and you authorize us to charge your credit card for such varying amounts. AdPointe may also periodically preauthorize your credit card in anticipation of account or related charges.
Use of the Products.
3.1 Right to Use. AdPointe hereby grants Client a limited, non-exclusive, non-transferable right to access and use the Products that Client has subscribed to solely in connection with Client’s legitimate business needs. This right will terminate in the event the applicable subscription is not renewed or this Agreement is terminated pursuant to Section 4, in which case Client will immediately cease any further use of the Products.
3.2 Ownership. The Products are the copyrighted works of AdPointe and/or its various third party licensors and partners.
3.3 Trademarks. The trademarks, service marks, logos and any designs used or displayed on or in describing the Products or any AdPointe owned webpage are trademarks and/or service marks owned by AdPointe or its licensors. Nothing in this Agreement shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any AdPointe trademark displayed as part of the Products or any AdPointe owned webpage or website without AdPointe’s prior written permission in each instance. The appearance of any third-party trademarks does not in any way imply any connection, license, approval or other such relationship of any kind with such third party.
3.4 Usage Restrictions. Client’s use of the Products is limited solely to those rights granted in Section 3.1. Client shall not copy, prepare derivative works, decompile or reverse engineer the Products. Client will not remove any trademark, copyright, or other proprietary rights notices which appears on the Products. In addition, Client will not use the Products for any unlawful or fraudulent purpose including, but not limited to: (a) impersonating any person or entity, (b) harvesting or collecting any personal information in violation of applicable law or (c) promoting any product, service or business that is unethical, obscene or in violation of any applicable law or regulation.
3.5 Licence to Client Content. Client hereby grants AdPointe a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of AdPointe’s business), perpetual, irrevocable right and license to use, distribute, copy, publish, syndicate, reformat and update (for example, to improve accuracy and/or standardize formats) any and all listing content and other content that is provided by or on behalf of you in connection with your use of the Products (“Client Content”). AdPointe may sublicense this right to any Partners and other online partners. This license will survive any termination or expiration of this Agreement. Client acknowledges and agrees that AdPointe shall be the source of record for Client’s business listing information and that Client will only submit information that it knows to be true.
Term and Termination
4.1 Term. This Agreement is effective as of the date you register for a subscription and shall remain in full force and effect until terminated by either party in accordance with this Section 4.
4.2 Termination for Convenience. Either Party may terminate this Agreement and disconnect some or all of the Products at any time for convenience upon notice to the other Party (which may be provided by email).
4.3 Survival. Upon any termination or expiration of this Agreement, Client will pay AdPointe any fees due and payable prior to the effective date of such expiration or termination. The following provisions shall survive any termination of this Agreement: Section 3.5 (“License to Client Content”), this Section 4.3 (“Survival”), Section 5 (“Disclaimer and Limitation of Liability”), Section 6(“Indemnification”), Section 7 (“Representations and Warranties”), Section 8 (“Special Terms for the AdPointe Social Feature”) (to the extent applicable), and Section 9 (“General Provisions”).
Disclaimer and Limitation of Liability.
THE PRODUCTS AND ANY SERVICES PROVIDED BY ADPOINTE IN CONNECTION WITH THIS AGREEMENT ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, ADPOINTE MAKES NO, AND DISCLAIMS ALL, WARRANTIES (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR OTHERWISE. THE ADPOINTE PRODUCTS AND ADPOINTE WEBSITE, AND OTHER WEBSITES, DATABASES AND/OR THIRD PARTY PROGRAMS CONTAINED WITHIN THE PRODUCTS, MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. ADPOINTE HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR ANY CHANGES MADE TO THE CLIENT CONTENT OR TO THE YOUR WEBPAGE OR WEBSITE AS A RESULT OF ADPOINTE’S ASSISTANCE IN IMPLEMENTING ANY PRODUCT FEATURES, ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF, OR INABILITY TO USE, ADPOINTE WEBSITES, DATABASES AND/OR PROGRAMS. ADPOINTE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS, PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF ADPOINTE’S WEBSITE, DATABASES AND/OR PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT SHALL ADPOINTE OR ANY PARTNER BE RESPONSIBLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF ADPOINTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADPOINTE WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT, AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND ADPOINTE’S CONTROL. IN ADDITION, AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ADPOINTE’S MAXIMUM, CUMULATIVE LIABILITY UNDER ANY CAUSES OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE WILL NOT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE TOTAL PRICES PAID BY CLIENT TO ADPOINTE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE FIRST CLAIM ARISES. To the extent any liability of AdPointe cannot be disclaimed, excluded or limited under applicable law, such liability shall be disclaimed, excluded and limited to the fullest extent permitted under applicable law.
- Indemnification.Client will defend, indemnify, and hold harmless, AdPointe, its third party licensors and Partners, and its affiliates, and each of its and their respective officers, directors, members, managers, employees, sublicensees, contractors and agents (collectively, “Indemnified Parties”) from and against any and all claims, actions, losses, liability, damages, fines, costs, and expenses (including reasonable attorney’s fees and expenses) arising from or related to: (a) any breach of the Agreement by you (including, but not limited to, any representations and warranties made herein); (b) any violation of any law or regulation arising from or in connection with your subscription; (c) any allegation arising from or relating to any Client Content, including, but not limited to, any allegation that any Client Content infringes or otherwise violates any trademark, trade name, service mark, copyright, license, trade secret, right of privacy or publicity or other intellectual property or proprietary right of any third party, constitutes false advertising, is defamatory and/or is in violation of any law or regulation; (d) any claim by any third party related to you or your products, services, webpages, websites or business; and/or (e) any third party dispute with you, including, without limitation, any injury suffered by a third party at your place of business or any other related issue.
- Representations and Warranties.You represent, warrant and covenant that at all times during the term of this Agreement:
(a) the individual accepting this Agreement is authorized to act on behalf of you and to bind you to this Agreement;
(b) you have the full power and authority to conduct your business, to enter into this Agreement, and to perform your obligations under this Agreement;
(c) your execution, delivery and performance of this Agreement will not conflict with or violate: (i) any provision of law, rule, regulation, industry guidelines or codes of conduct to which you or your activities are subject; (ii) any order, judgment or decree applicable to you; (iii) any provision of your organizational documents; or (iv) any agreement or other instrument applicable to you; and
(d) you will comply with all applicable federal, state and local laws, rules, regulations, court orders, judgments and decrees.
- Special Terms for the AdPointe Social Feature.Client may be required by certain Partners for the “Social” feature (for example, Facebook) to agree to such Partners’ terms and conditions or other policies regarding use of such applicable Partner Sites (collectively, the “Social Partner Terms”). In such event, Client hereby agrees to comply with (and to ensure that all Client Content provided to AdPointe in connection with the applicable Product complies with) all Social Partner Terms. Any actual or alleged failure of Client, or of any Client Content, to comply with any Social Partner Terms will constitute a material breach of this Agreement. In addition to Client’s indemnity obligations set forth elsewhere in this Agreement, Client will defend, indemnify and hold harmless the Indemnified Parties from and against any and all claims actions, losses, liability, damages, fines, costs, and expenses (including reasonable attorney’s fees and expenses) arising from or relating to any asserted breach of any Social Partner Terms by Client and/or the Client Content.
9.1 Confidentiality. All non-public information relating to the Products, are confidential information of AdPointe (“AdPointe Confidential Information”). Unless required by applicable law, Client will not disclose any of the AdPointe Confidential Information to any third party without the prior, written approval of AdPointe. Client will not use any of the AdPointe Confidential Information for any purpose, other than as necessary for Client to perform its obligations under this Agreement. Client will protect the confidentiality of the AdPointe Confidential Information using at least the same degree of care as that which Client uses for its own highly sensitive confidential information (but in no event less than a reasonable degree of care).
9.2 Promotional Materials. During the term of this Agreement, AdPointe may use Client’s name and logo for the purpose of referring to Client as a AdPointe client on AdPointe’s website and in its other promotional materials.
9.3 Policies. Client’s participation in any subscription shall be subject to all applicable AdPointe policies including, without limitation, the Privacy Policies posted on any Web Site on which Client listings are published, and any applicable Web Site specification requirements (collectively, “Policies”). The Policies may be modified by AdPointe at any time. The latest Policies can be found on any of AdPointe’s websites. You should review the Policies regularly. By your continued participation in a Product subscription, you agree to all of the associated terms and conditions contained within the Policies effective at that time.
9.4 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, the affected Party’s performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
9.5 Waiver. The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party.
9.6 No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to imply or constitute either Party as the agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
9.7 Arbitration and Class Action Waiver. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE PRODUCTS AND/OR ANY SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S COMMERCIAL ARBITRATION RULES. ARBITRATION WILL BE HELD IN THE UNITED STATES COUNTY THAT YOU LIVE OR WORK IN, NEW YORK, NY OR ANY OTHER LOCATION THAT THE PARTIES AGREE TO. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the Party initiating the arbitration must mail a copy of the completed form to the opposing Party. You may send a copy to AdPointe at the following address: AdPointe, Inc., Attn: Legal Department, 1 Madison Avenue, 5th Floor, New York, NY 10010. In the event AdPointe initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your account. As an alternative to arbitration, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.
9.8 Governing Law and Forum. This Agreement, and any disputes arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, U.S.A, without regard to its choice of law provisions. If for any reason a claim proceeds in court rather than in arbitration, each of the Parties hereby waive any right to a jury trial and irrevocably consent and submit to the exclusive jurisdiction of the state and federal courts located in New York County, New York, U.S.A for any such disputes, and hereby irrevocably waive any objections to the laying of venue in such courts.
9.9 Entire Agreement; Amendment. This Agreement (together with any other applicable terms and conditions referenced herein) constitutes the entire agreement between the Parties with regard to the subject matter hereof. AdPointe may modify the terms of this Agreement at any time without liability, and your use of the Products after notice that the terms of this Agreement have changed constitutes your acceptance of the new terms.
9.10 Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
9.11 Costs, Expenses and Attorneys’ Fees. If either Party commences any action or proceeding against the other Party to enforce or interpret this Agreement, the prevailing Party in such action or proceeding shall be entitled to recover from the other Party the actual costs, expenses and reasonable attorneys’ fees (including all related costs and expenses), incurred by such prevailing Party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.