TERMS AND CONDITIONS CONTRACT
This contract represents the entire agreement between the parties and replaces all prior understandings (oral or written) covering the subject matter.
PROMOTIONAL INFORMATION
{{co_name}} has taken care to ensure the accuracy of all information and descriptions contained in its brochures and promotional material at the time prepared, however, nothing in those materials shall be treated as a term or condition of this contract. {{co_name}} shall not be liable with regard to any difference of opinion as to the condition or quality of the properties, or the surrounding area, nor for temporary defects or stoppages of any kind. Properties may not always appear exactly as pictured or described due to normal wear and tear, changes in furnishings and changes after materials were prepared.
Misrepresentation. The Client shall not misrepresent {{co_name}}.
Tracking Codes. {{co_name}} may insert certain tracking technologies, including, without limitation, embedded tags, source codes, links, and pixels ("Tracking Technologies") within Marketing Content which, among other things, may enable The Company to measure the effectiveness and click-through rates of The Client's services and to ensure compliance with this Agreement. The Client shall not, and shall not attempt to, modify, circumvent, impair, disable, restrict or otherwise interfere with any Tracking Technologies. {{co_name}} may, but is not obligated to, share information or data The Company derives from any Tracking Technologies with The Client for the purpose of enabling The Client to improve or optimize the effectiveness of its services.The Client agrees and acknowledges all Tracking Technologies shall be and remain the exclusive property of The Company and fall within the confines of Confidential Information as defined herein below. Tracking Technologies will only be made available "as is" without representation or warranty of any kind. If The Client discovers any errors or nonconformities in any Tracking Technologies, The Client shall notify The Company and The Company shall review The Client's findings and make corrections The Company determines in its sole discretion to be appropriate.
The Client agrees to use the Platform and provided Content so long as such use of Content is in full compliance with all applicable laws, rules and regulations,of any jurisdiction in which The Client conducts business or uses Platform under this Agreement (collectively "Applicable Law"). In addition, The Client agrees to abide by and comply with this Agreement.
The Client acknowledges and agrees that The Company is merely a provider of the Platform and therefore is not an "agency," and that The Company serves no function and performs no role in The Client's business other than to provide the Platform.
The Client will exercise its best efforts to prevent the introduction through data transmission via modem or any other medium or in the performance of any service hereunder, any virus, worm, trap door, back door, or any other contaminant, or disabling devices including, but not limited to, timer, clock, counter, or other limiting routines, codes, commands, or instructions that may have the effect or be used to access, alter, delete, damage, or disable systems, other software, information, or other property of The Company or of the recipients of The Client's advertisements hereunder.
The Client shall not sublicense the use of the Platform access to a third party without The Company's prior express written permission.
As between The Company and The Client, The Company owns all right in: (i) Platform, The Company Content as well as all related software and code ("Technology"); (ii) The Company's trademarks and copyrighted Content; (iii) information posted with lead on the Platform; (iv) any goodwill, derivative works, improvements and/or intellectual property associated with the foregoing.
The Company grants The Client a nonexclusive, nontransferable, not sub-licensable revocable license to use the Platform solely in connection with The Company to post properties information and pictures.
The Client will not copy, modify, distribute, sell, or lease access to the Platform and the Platform Content, without written authorization from the owner.
Any license granted as per this agreement will be terminated if the agreement is terminated by either party.
{{co_name}} or its related companies shall have the right to immediately and without prior notice, suspend, terminate and/or revoke the right of The Client to use Platform or access or use The Client's account on Platform and/or access or use any Content if (a) The Company, or The Company's other Platform users are subject to, or reasonably likely to suffer, any negative publicity, damage to reputation or goodwill as a result of The Client's actions (or failure to act where there is a duty or obligation), including, without limitation, a breach of this Agreement; (b) The Client fails to comply with any term or condition of this Agreement; (c) there are an above-average number of complaints against The Client; or (d) without reason at The Company's sole discretion.
FRAUD
Monitor and Inactivation. {{co_name}} monitors traffic for fraud. If fraud is detected, The Client's account will be made inactive pending further investigation.
DISCLAIMERS
{{co_name}} PROVIDES THE AD PLATFORM AND SERVICES "AS IS" AND "AS AVAILABLE". THE COMPANY MAKES NO GUARANTEE REGARDING THE AMOUNT OF REVENUE OR THE NUMBER OR QUALITY OF ADS, IMPRESSIONS, CLICKS, TRANSACTIONS, OR OTHER USER-ENGAGEMENT METRICS THAT THE SERVICES MAY ACHIEVE. TO THE EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WARRANTIES OF NON INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, THAT CONTENT PROVIDED BY THE CLIENTS WILL PERFORM OR WILL BE IN COMPLIANCE WITH ANY APPLICABLE LAWS, OR THAT SERVICES AND PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY IS NOT RESPONSIBLE FOR THE MARCONTENT, ADS, PRODUCTS OR SERVICES PROVIDED BY THE CLIENT. THESE DISCLAIMERS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW AND EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND BREACH OF EACH PARTY'S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, EMPLOYEES OR PARTNERS, BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF THE PARTY, ITS AFFILIATES, EMPLOYEE OR PARTNERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EACH PARTY ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. IN NO EVENT SHALL THE COMPANY'S LIABILITY EXCEED $1,000.00.
SECURITY; CONFIDENTIALITY
Security. The Client shall ensure that all consumer information collected thereon shall be secure and will use administrative, technical and physical safeguards in compliance with the law standards generally accepted in the industry to ensure the security and confidentiality of all information collected by The Client, to protect against anticipated threats or hazards to the security or integrity of such information, and to protect against unauthorized access to or use of such information.The Client shall immediately notify The Company in the event of a security breach or a threatened security breach relating to the The Company performance of Services under this Agreement and shall cooperate in good faith to resolve any such security breach promptly thereafter.
"Confidential Information" means the terms of this Agreement and any technical, marketing, financial, employee, planning, and other confidential or proprietary information, including customer and supplier lists, the suppression or do not mail lists provided by The Company or The Client, and any information that: (i) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Confidential Information does not include information that: (i) is or has been independently developed by the receiving party without access to or use of the other party's Confidential Information; (ii) is or has become publicly known through no breach of this Agreement by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; or (iv) has been approved for release in writing by the disclosing party. Each party agrees that: (i) it will not disclose to any third party or use the Confidential Information of the other party except as expressly permitted in this Agreement, where required by law or judicial process, or with the other party's prior written consent and provided that the party to whom the information will be disclosed has agreed to confidentiality restrictions no less stringent than those herein contained; and (ii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own Confidential Information. Each party shall promptly notify the other of any request or demand by any court, governmental agency, or other individual or entity asserting a demand or request for Confidential Information, so that such party may seek an appropriate protective order. If a party or any of its employees, representatives or agents attempts to use or disclose any of the Confidential Information in contravention of this Agreement, then, in addition to other available remedies, the party who owns the Confidential Information shall have the right to seek injunctive relief enjoining any such attempt, it being acknowledged that legal remedies are inadequate. Upon the earlier to occur of termination of this Agreement or the request of the disclosing party, the receiving party shall destroy or return all of the disclosing party's Confidential Information to the disclosing party.
Notwithstanding anything to the contrary herein, nothing in this section shall limit The Client's obligations or permit disclosures by The Client that are prohibited elsewhere in this Agreement. This section shall survive the termination of this Agreement.
Indemnification
The Client, at its own expense shall indemnify, defend, and hold The Company harmless and its employees, directors, officers, representatives, agents, ad providers, and affiliates against all third-party claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses, ("Claim" or "Claims") including but not limited to those directly or indirectly as a result of (a) The Client's or any network, affiliates' breach of this Agreement; or (b) The Client's, networks or any affiliates' violation of any Applicable Law; or (c) any content, goods or services offered, sold or otherwise made available by The Client to any person as part of its promotion or marketing campaigns; or (d) any violation by The Client of any rights of another, including breach of a person's or entity's intellectual property rights.
The Company shall control the defense including retention of counsel and experts but will not enter into any settlement or compromise of any Claim without The Client's prior written consent, which shall not be unreasonably withheld. The Client will pay any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs expended by The Company or awarded against or otherwise incurred by The Company in connection with or arising from any Claim.
MISCELLANEOUS
Disparagement. The Client will not engage in any action or practice that reflects poorly on The Company, or otherwise disparages or devalues The Company reputation or goodwill. The Client will not disparage The Company during or after the Term of this Agreement.
No Other Representations; Written Amendment. There are no representations, warranties, conditions, interpretations, or other agreements, express or implied, statutory or otherwise, between the parties in connection with the subject matter of this Agreement, except as specifically set forth herein. The Client agrees that The Company shall not be responsible for, be bound by or liable to The Client for any statement made directly or indirectly by an employee, affiliate, consultant, or representative of The Company that contradicts, repudiates, misinterprets or excuses The Client from complying with any term of this Agreement. If The Client has any concerns or desires to make any changes to the terms of this Agreement, the parties shall negotiate in good faith to enter into a written Amendment Agreement executed by both parties to affect the intent of the parties.
Excusable Delays. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its control and without its fault or negligence.
Assignment. Neither party may assign this Agreement without the written consent of the other except that a party may assign this Agreement to an acquirer of all or substantially all of that party's business or to an entity that is controlled by, under common control with or controls such party. The parties are independent contractors and this Agreement does not create an agency, partnership, or joint venture.
Notice of Potential Liability. The Client will inform The Company within one (1) business day of becoming aware of any actual or threatened lawsuit, governmental investigation or other governmental action related to The Client, or marketing or promotional campaigns run by The Client. The Company reserves the right to investigate any activity that may violate this Agreement.
COMPLAINTS
Should any problem occur with the property, the Client must immediately (within 24 hours) notify {{co_name}}. The Client should also inform {{co_name}} of the problem within 48 hours if the problem has not been remedied. The Client should allow the {{co_name}} reasonable time to remedy the problem, or to find a suitable solution.
LIABILITY
Client acknowledges that {{co_name}} may undertake only to act as agent. As such, {{co_name}} shall not be responsible or liable for any accident, loss, damage, injury, or inconvenience, except insofar as that occurrence is caused by the direct negligence of {{co_name}} or that of its employees. All claims of accident, loss, damage, injury or inconvenience are acknowledged to be solely between the Client and product. {{co_name}} does not accept liability for any loss or damage caused by weather conditions, riot, strikes, sickness or any cause beyond its control.
JURISDICTION
{{co_name}} and its Client agree that this contract shall be governed by Panama law, and that exclusive jurisdiction over all disputes arising out of this contract shall be in the courts located in Panama.
NOTE: This electronic agreement is considered as a signed written agreement.
