These Terms of Service (including all exhibits hereof and all other documents included herewith or referenced herein) represent and constitute the entire agreement (this 'Agreement') by and between Townsquare Interactive, LLC ('Townsquare') and each business creating an account with Townsquare ('Client') concerning Client's use of the web design and hosting services offered by Townsquare via the www.townsquareinteractive.com website (the 'Townsquare Website'). Townsquare and Client may be referred to hereinafter collectively as the 'Parties' and individually as a 'Party.' For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties expressly agree as follows:
1. CERTAIN DEFINITIONS.
1.1 'Client-Furnished Material' means, collectively: (i) the domain name for the Client Website (as defined below); (ii) any names, passwords and other account access information for any of the Social Media Sites (as defined below) and Location-Based Sites (as defined below) created by or for Client; (iii) all information, data, content and material furnished by Client for storage, use, reproduction, posting, display, exhibition, transmission, publication and/or distribution (as the case may be) whether on or via the Client Properties (as defined below), the Townsquare Systems (as defined below), or otherwise, including, without limitation, names, marks, logos, designs, slogans, text, writings, publications, artwork, graphics, images, photos, animations, videos, audios, links, software and social media plug-ins; and (iv) all hardware, software and other goods and services procured and maintained by Client pursuant to Section 2.12 of this Agreement.
1.2 'Client Properties' shall mean, collectively, the Client Website, the Social Media Sites and Location-Based Sites (as applicable).
1.3 'Client Website' means the consumer-facing website of Client as designed (whether by Client using the Townsquare design tools or otherwise), constructed and hosted by Townsquare pursuant to this Agreement.
1.4 'Effective Date' means the date on which Client creates an account with Townsquare.
1.5 'Excused Outage' means any outage, unavailability, interruption, delay or degradation of the Services or the Client Website resulting from or caused by any of the following: (i) scheduled downtime, maintenance or repair; (ii) any act or omission by Client or anyone acting under its authority or on its behalf; (iii) any Client-Furnished Material; (iv) any User-Generated Material (as defined below); or (v) Force Majeure (as defined below).
1.6 'Force Majeure' means a cause or event that is beyond the reasonable control of Townsquare and could not reasonably have been foreseen or avoided, including, without limitation, third-party network or system outage, hacking, virus attack or other form of sabotage, Acts of God, acts of government, strikes, lockouts, riots, insurrection, civil commotion, war and terrorist attacks.
1.7 'Go-Live Date' means the date on which the Client Website is first available to the public.
1.8 'IP' means any and all forms of intellectual property, including, without limitation, patent, trade secret, copyright and trademark.
1.9 'Location-Based Sites' means the local business listing for Client on certain leading location-based websites selected by Townsquare in its sole discretion. The Location-Based Sites may (but are not required to) include Google, Bing, Yahoo, MapQuest and Yelp.
1.10 'Services' is as defined in Section 2.1 of this Agreement.
1.11 'Service Fee' is as defined in Section 3.1 of this Agreement.
1.12 'Social Media Sites' means certain social media sites selected by Townsquare in its sole discretion. The Social Media Sites may (but are not required to) include Facebook, Twitter and YouTube.
1.13 'Term' is as defined in Section 4.1 of this Agreement.
1.14 'Townsquare-Furnished Material' means, collectively: (i) the Townsquare Website and all contents, materials, elements, features and functionalities thereof, but excluding Client-Furnished Material contained therein; (ii) all Townsquare names, marks, logos, designs and brand images; (iii) all links and advertisements provided by Townsquare; (iv) all Townsquare Systems (as defined below) and all hardware, software, tools, technologies, processes, methods, techniques and know-how provided by Townsquare (whether for use by Townsquare or Client or otherwise) in the rendering of the Services; and (v) all results, work products and deliverables of the Services (including, without limitation, all Client Properties source code, object code, HTML files, Java files, data files, scripts, programs, templates, user interface designs, themes, page layouts and look and feel, and documentation created by Townsquare), but excluding Client-Furnished Material contained therein.
1.15 'Townsquare Systems' means all computer servers, networks and systems owned, controlled or operated by Townsquare and/or its corporate affiliates in connection with the rendering of the Services, including, without limitation, those associated with the Townsquare Website.
1.16 'User' means any individual who visits or uses the Client Website but excludes each of the Parties and anyone who uses the Client Website on behalf of a Party.
1.17 'User-Generated Material' means any content or material uploaded, posted, submitted or transmitted by a User on or via the Client Website.
2.1 Services. Subject to the terms and conditions of this Agreement, Townsquare may provide the following services to Client: (i) providing tools for Client to design and construct a Client Website for distribution to desktop and mobile devices; (ii) hosting the Client Website during the Term; (iii) updating and suggesting content and design changes to enhance the Client Website's ranking in search engines; (iv) setting up listings for Clients on certain Location-Based Sites; (v) setting up and administering accounts for Client on certain Social Media Sites; and (vi) any other service offered by Townsquare for which the Client is paying a fee (collectively the 'Services'). Townsquare will provide the applicable Services to Client based upon the package selected by Client at registration. In addition, Townsquare reserves the right to add, modify or discontinue Services from time-to-time in its sole discretion; provided, however, that Townsquare shall provide Client thirty (30) days prior written notice in the event Townsquare discontinues any Service. Townsquare agrees to use commercially reasonable efforts to ensure that during the Term, the Client Website will be operational and accessible to Users on a 24/7 basis, except during any Excused Outage.
2.2 Subcontractors. Client acknowledges and agrees that Townsquare may, in its sole discretion, use one or more third-party contractors (each, a 'Subcontractor') to provide some portions of the Services and/or other services related to the operations of the Townsquare Website and/or the Client Properties, which may include, without limitation, data processing and storage, data security, technical support, purchase and payment processing, order fulfillment, and other e-commerce related functions.
2.3 Reservation of Right. Notwithstanding anything herein to the contrary, Client acknowledges and agrees that Townsquare shall have the absolute right, at any time and with or without notice to Client, to (i) suspend, disable, block, restrict or limit access to the Client Website or any portion thereof and/or (ii) take down and remove any content or material (including, without limitation, any Client-Furnished Material, any User-Generated Material, or any Townsquare-Furnished Material) from the Client Website, if doing so, in Townsquare's sole judgment, is necessary or advisable in order to comply with any applicable law or regulation or to protect Townsquare or its corporate affiliates from actual or potential claims or liabilities, or for any content or material which Townsquare determines is offensive (including any pornographic images, any foul language, disparaging remarks, references to illegal substances, derogatory remarks regarding the religion, sexuality, politics, appearances or other characteristics or beliefs of any other person or entity, etc.), or infringes, misappropriates or violates any IP or other right of any person or entity.
2.4 Townsquare-Furnished Material. Subject to the terms and conditions of this Agreement, Townsquare hereby grants to Client a non-exclusive, non-transferable, non-sublicensable, limited right and license to use Townsquare-Furnished Material solely for the purposes of receiving the Services from Townsquare and operating the Client Properties during the Term.
2.5 Client-Furnished Material. Subject to the terms and conditions of this Agreement, Client hereby grants to Townsquare a non-exclusive, non-transferable, non-sublicensable (except to a Subcontractor), limited right and license to use, reproduce, post, display, exhibit, transmit, publish and/or distribute (as the case may be) Client-Furnished Material solely for the purposes of providing the Services to Client during the Term in connection with the Client Properties. Client represents and warrants that: (i) it has the right to furnish and authorize use of Client-Furnished Material by Townsquare in accordance with this Agreement; and (ii) no Client-Furnished Material will infringe upon or violate any right of any third party.
2.6 Domain Names. Client may select the domain name for the Client Website, which Townsquare shall register (if available) in Client's name and maintain and manage for Client during the Term. To the extent Client has already registered the Client Website domain name, Client shall, promptly after the Effective Date, give Townsquare full access to the domain name account and authorize Townsquare to maintain and manage the account during the Term. Upon the expiration or termination of this Agreement, Townsquare shall turn over the control of the Client Website domain name to Client.
2.9 User Aggregate Data. Client acknowledges and agrees that Townsquare may (whether directly or through one or more Subcontractors) collect and derive aggregate data (i.e., information that does not identify any User individually, such as site traffic data and anonymous demographic information about Users) from the Client Properties, and that all such aggregate data shall become the property of Townsquare and may be freely used by Townsquare and its corporate affiliates for any and all lawful purposes.
2.10 Restrictions on Use. Client (including all those acting under its authority or on its behalf) may not use the Services or the Client Properties or any Townsquare-Furnished Material, other than for Client's own legitimate and lawful business purposes and in a manner that complies with this Agreement and all applicable laws and regulations. Without limiting the generality of the foregoing, Client (including all those acting under its authority or on its behalf) shall not:
(i) use any of the Services or the Client Properties or any Townsquare-Furnished Material to engage in fraudulent, deceptive or misleading activities or practices;
(ii) use any of the Services or the Client Properties or any Townsquare-Furnished Material to engage in infringement, misappropriation or violation of any IP or other rights of any person or entity;
(iii) use any of the Services or the Client Properties or any Townsquare-Furnished Material to engage in spam or transmission or distribution of unsolicited commercial messages in violation of applicable laws or regulations;
(v) use any of the Services or the Client Properties or any Townsquare-Furnished Material to offer or promote illegal, unlawful, violent, harassing, discriminatory, derogatory, defamatory, libelous, pornographic, obscene, sexual, vulgar, or otherwise objectionable or offensive content or activities;
(vi) use any of the Services or the Client Properties or any Townsquare-Furnished Material in violation of U.S. export control laws or regulations;
(vii) copy, reproduce, distribute, sell or resell, or prepare derivative works from, any of the Services or the Client Properties or any Townsquare-Furnished Material;
(viii) reverse-engineer, decompile or disassemble the Client Properties or any Townsquare-Furnished Material;
(ix) alter, modify, remove, deface or otherwise tamper with any Townsquare legal notices that appear on or within the Client Properties or any Townsquare-Furnished Material; or
(x) solicit, induce, cause or authorize others to do any of the above.
Client acknowledges and agrees that, in the event of any breach or violation of this Section 2.10 by Client or anyone acting under its authority or on its behalf, Townsquare shall be entitled to immediately terminate this Agreement pursuant to Section 4.3(i) of this Agreement.
2.11 Monitoring. Client acknowledges and agrees that Townsquare shall have the right to electronically and remotely monitor Client's use of the Services, the Client Properties and Townsquare-Furnished Material to verify Client's compliance with the terms of this Agreement.
2.12 Hardware, etc. Client shall be solely responsible for procuring and maintaining (including, without limitation, the right to use), at its own expense, all hardware, software, Internet access, network connections, and other goods and services required for Client to access and use the Services and the Client Properties.
2.13 Passwords. Client shall safeguard all usernames, passwords and other account access information for any Client Property (collectively 'Passwords'). Client shall be fully responsible for all activities that occur under its Passwords and shall promptly notify Townsquare of any unauthorized use of its Passwords of which it becomes aware.
2.14 Advertising. Client acknowledges and agrees that during the Term: (i) the Client Website shall prominently display the phrase 'Powered by Townsquare Interactive' and/or such other expression(s) determined by Townsquare that identify the Client Website as designed and hosted by Townsquare; and (ii) Townsquare shall have the right to place and display Townsquare-branded links and advertisements (e.g. banner and button ads) on the Client Website.
2.15 Ownership. As between the Parties: (i) all Townsquare-Furnished Material and all IP rights associated therewith shall remain the sole property of Townsquare and all use thereof by Client shall inure to the sole benefit of Townsquare; and (ii) all Client-Furnished Material and all IP rights associated therewith shall remain the sole property of Client and all uses thereof by Townsquare shall inure to the sole benefit of Client.
2.16 Client Information. By submitting Client information (including, without limitation, Client's name, address, email, telephone and other contact information, billing and payment information, Passwords and other Client-related information as provided by Client (collectively 'Client Account Information') to Townsquare, Client expressly represents and warrants that all Client information submitted is Client's own information and is truthful, current and accurate, and Client further expressly acknowledges and agrees as follows:
(i) Townsquare may collect, store, retain, and use Client Account Information for all purposes related to Townsquare's performance and enforcement of this Agreement, as well as to comply with applicable laws and regulations. Client billing and payment information (e.g. credit card information) will only be used for payment processing and collection purposes related to Client's account with Townsquare and will not be used or stored for any other purposes (except as expressly otherwise stated).
(ii) Townsquare and its corporate affiliates may also use Client Account Information (except for Client billing and payment information) to offer, market and advertise to Client other products and services of Townsquare and/or its corporate affiliates; provided that Client may opt out of receiving marketing communications from Townsquare and its corporate affiliates by changing the Client account preferences or by contacting Townsquare at firstname.lastname@example.org or by calling the toll-free number 1 (855) 493-2435. It is expressly understood and agreed that such opt-out by Client will not affect Townsquare's notices and other communications to Client regarding the Client account, the Client Website, or any matter related to the Services or this Agreement.
(iii) Townsquare does not knowingly share Client Account Information with any non-affiliated third party for such third party's direct marketing use unless Client elects to opt in (whether on the Townsquare Website or otherwise) to receiving marketing communications directly from such third party.
(iv) Townsquare may disclose Client Account Information (including Client billing and payment information, if applicable) to Subcontractors who need to access such information to perform services for Townsquare, the Townsquare Website and/or the Client Properties; it being understood that Townsquare will require its Subcontractors to limit their use of Client Account Information solely to the purposes for which the information was disclosed by Townsquare, and to maintain the confidentiality, security and integrity of the information and not make any further disclosure to others.
(v) Townsquare may disclose Client Account Information (including Client billing and payment information, if applicable) to others if doing so is required by law or, in Townsquare's good faith belief, is reasonably necessary to: (1) comply with legal process (including a court order or subpoena); (2) cooperate with law enforcement; (3) enforce this Agreement or the Legal Notices for the Client Properties; (4) respond to an emergency; or (5) protect the rights, property or safety of Townsquare, Users, and/or the public.
(vii) When Client uses the Townsquare Website, the site servers automatically generate log files that may contain data linked to Client, such as IP addresses, ISP domain names, browser types, operating systems, referring/exit pages, date/time stamps, clickstream data, etc. Also, to the extent Client has enabled 'cookies' in its browser, Townsquare may use 'cookies' to collect session information about Client's visits and activities on the Townsquare Website. Townsquare collects and uses log file data and cookie session information for its operational purposes, including for purposes of improving Client experience on the Townsquare Website, collecting and analyzing traffic and activity data related to the Townsquare Website, managing Client relations, etc.
(viii) Townsquare may collect and generate aggregate and group information based on Client and others' visits and activities on the Townsquare Website, or by combining Client-related information with information about Townsquare's other clients. Such aggregate information is anonymous and does not identify Client individually. Townsquare shall be free to use and share with others such aggregate information for market research/analysis, marketing and advertising, and other business purposes.
(ix) Townsquare will use commercially reasonable measures to safeguard Client Account Information, but absolute security cannot be guaranteed. No data transmission over the Internet and no data storage can be 100% secure. Consequently, Townsquare does not warrant or guarantee the security of any information Client transmits to, from or on the Townsquare Website. Townsquare will endeavor to notify Client in the event Townsquare becomes aware of a breach or suspected breach of the security of Client Account Information as stored by Townsquare. However, it is expressly understood and agreed that Townsquare shall not be liable for any breach of security of Client Account Information resulting from causes or events that are beyond Townsquare's control, including, without limitation, Client's own act or omission, corruption of storage media, defects in third-party data security products or services, power failures, natural phenomena, riots, acts of vandalism, hacking, sabotage, or terrorism.
2.17 Cookies and Similar Devices. By entering into this Agreement, Client expressly acknowledges and agrees:
(ii) The Townsquare Website may use other industry standard technologies like pixel tags and web beacons to track Client's use of the Townsquare Website, and may also allow Subcontractors to use these devices on Townsquare's behalf. Pixel tags and web beacons are tiny graphic images placed on certain pages on the Townsquare Website or in Townsquare emails that allow Townsquare to determine whether Client has performed a specific action. When Clients access these pages or open or click an email, pixel tags and web beacons generate a non-personally identifiable notice of that action. Pixel tags allow Townsquare to measure and improve understanding of visitor traffic and behavior on the Townsquare Website, as well as to measure Townsquare's promotions and performances. Townsquare may also utilize pixel tags and web beacons provided by others for the same purposes.
3. Fees and Payment.
3.1 Service Fee. In consideration for the Services, Client shall pay Townsquare in advance the listed monthly fee for the Service package selected by Client commencing on the Go-Live Date (the 'Service Fee'). The Service Fee is NON-REFUNDABLE. The initial Service Fee shall be paid on the Effective Date. Thereafter, the monthly Service Fee shall become due on the monthly anniversary of the Go-Live Date. Client may cancel the Services and terminate this Agreement and its account pursuant to Section 4.2 of this Agreement.
In addition, Client shall reimburse Townsquare, within thirty (30) days of being billed by Townsquare, for any out-of-pocket costs incurred by Townsquare in rendering the Services (the 'Miscellaneous Costs'), including, without limitation: (i) the costs of maintaining the domain name for the Client Website; it being understood that where Townsquare offers the first year of domain name registration website free of charge for certain Service packages, the Client will automatically be charged (and be obligated to reimburse Townsquare) for the costs of renewing and maintaining the domain name registration after the first year; and (ii) if applicable, the costs of providing e-commerce features, customer support services and other solutions (e.g., shopping cart and electronic ordering/purchase processing, dedicated customer support hours and other services).
3.2 Billing and Contact Information. Client shall provide Townsquare with current and accurate billing and contact information and shall promptly notify Townsquare of any change in such information. If the billing or contact information provided by Client is incorrect or incomplete or becomes outdated, Townsquare shall have the right to immediately suspend the Services and access to the Client Properties without any liability to Client, until current and correct billing and contact information is provided by Client. If Client does not provide its updated billing and contact information within a reasonable time period after Townsquare makes a request, Townsquare shall have the right to terminate this Agreement with immediate effect with or without notice to Client, upon which Townsquare will, without any liability to Client, cease all of the Services, permanently deactivate and terminate the Client Properties, and permanently delete the Client account and all Client-Furnished Material from the Townsquare Website and the Townsquare Systems.
3.3 Timely Payment. Client acknowledges and agrees that: (i) timely payment of the Service Fee for each billing period is essential to the continuation of the Services and the Client Properties; (ii) Client's failure to pay the Service Fee on time for a given billing period shall entitle Townsquare to immediately suspend the Services and access to the Client Properties without any liability to Client; and (iii) if Client's account is delinquent for thirty (30) days or more, then in addition to its other rights and remedies, Townsquare shall have the right to terminate this Agreement with immediate effect upon notice to Client, upon which Townsquare will, without any liability to Client, cease all of the Services, permanently deactivate and terminate the Client Properties, and permanently delete the Client account and all Client-Furnished Material from the Townsquare Website and the Townsquare Systems.
3.4 Taxes. The Parties agree that Client shall pay the full amount of the Service Fee, exclusive of any sales, use, excise, value-added or other similar taxes, all of which shall be the responsibility of Client.
4. Term and Termination.
4.1 Term. The initial term (the 'Initial Term') of this Agreement shall commence on the Effective Date and end on the one (1) month anniversary of the Go-Live Date. Thereafter, the term shall automatically renew on a month-to-month basis on each monthly anniversary of the Go-Live Date. The Initial Term and any monthly renewal thereafter shall be referred to herein as the 'Term.'
4.2 Termination by Client. Following the Initial Term, Client may terminate this Agreement for any reason by calling the Townsquare Interactive Support Desk at (855) 463-5490 between the operating hours of 9:00 a.m. EST and 6:00 p.m. EST, Monday through Friday (excluding federal holidays). Client must submit its notice of cancellation no later than 6:00 p.m. EST on the day before the next billing date to avoid further charges; provided, that if such day is a Saturday or Sunday or a federal holiday, then no later than 6:00 p.m. EST of the last business day immediately prior to the start of the next billing cycle.
4.3 Termination by Townsquare. Townsquare shall have the right to terminate this Agreement with immediate effect with or without notice to Client as follows: (i) pursuant to Section 3.2 or 3.3 of this Agreement,; (ii) upon a breach of this Agreement, including, without limitation, Section 2.10, by Client (including anyone acting under its authority or on its behalf); (iii) if Client becomes insolvent, files for bankruptcy, or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or makes an arrangement pursuant to any bankruptcy law, or if a receiver, liquidator, custodian, trustee or the like is appointed for its business; or (iv) if Client winds down, liquidates, or otherwise ceases or discontinues its business for any reason. Notwithstanding the foregoing, Townsquare shall have the right to terminate this Agreement with thirty (30) days prior written notice to Client for any reason or no reason.
4.4 Effect of Termination. Upon any termination of this Agreement:
(i) All unpaid and accrued Service Fee and Miscellaneous Costs amounts (including interest thereon, if any) owed by Client hereunder shall become immediately due and payable to Townsquare;
(ii) All rights and licenses granted by each Party to the other Party under this Agreement shall automatically cease and terminate;
(iii) Townsquare will cease all of the Services, permanently deactivate and terminate the Client Properties, and permanently delete the Client account and all Client-Furnished Material from the Townsquare Website and the Townsquare Systems;
(iv) Client shall have no further right or permission to access or use, except for the Client-Furnished Materials: (1) the Client Website, including any templates, designs or look-and-feel contained therein; (2) Townsquare Website; (3) any of the Townsquare-Furnished Material; (4) any of the Services; and (5) any of the Townsquare Systems;
(v) To the extent Client is in possession of any Townsquare-Furnished Material (including any copies thereof), Client shall promptly return the same to Townsquare or, if so requested by Townsquare, promptly destroy the same;
(vi) To the extent Client is in possession or control of any confidential information of Townsquare, it shall promptly return the same (including all copies thereof) to Townsquare or, if so requested by Townsquare, promptly destroy the same; and
(vii) Notwithstanding anything herein to the contrary, all of the provisions of Sections 2.8, 2.9, 2.15, 4.4, 5, 6, 7 and 8 (including all definitions pertaining thereto) of this Agreement shall specifically survive any termination of this Agreement.
EXCEPT AS EXPRESSLY OTHERWISE STATED HEREIN, ALL OF THE SERVICES, THE TOWNSQUARE WEBSITE AND THE CLIENT PROPERTIES ARE PROVIDED ON AN 'AS IS' BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, TOWNSQUARE HEREBY SPECIFICALLY DISCLAIMS, WITH RESPECT TO THE SERVICES, THE TOWNSQUARE WEBSITE AND THE CLIENT PROPERTIES, ANY AND ALL (I) IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND NON-INFRINGEMENT, (III) WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND (IV) WARRANTIES THAT THE SERVICES, THE TOWNSQUARE WEBSITE AND THE CLIENT PROPERTIES WILL BE UNINTERRUPTED, ERROR-FREE AND SECURE.
7. Limitations of Liability.
7.1 No Consequential Damages. IN NO EVENT SHALL TOWNSQUARE BE LIABLE HEREUNDER TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF BUSINESS OR OPPORTUNITY, OR LOSS OF USE OR DATA, EVEN IF TOWNSQUARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
7.2 Maximum Liability. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF TOWNSQUARE HEREUNDER TO CLIENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED A SUM EQUAL TO THE TOTAL AMOUNT OF SERVICE FEES ACTUALLY PAID BY CLIENT TO TOWNSQUARE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF THE RELEVANT CLAIM OR ACTION.
8.1 Publicity. Neither Party shall issue any press release or public announcement about this Agreement or the relationship of the Parties hereunder unless such press release or announcement is issued jointly by the Parties.
8.2 Marketing Use of Client's Name. Client acknowledges and agrees that, during the Term, Townsquare and its corporate affiliates may mention and use Client's name in sales, marketing, advertising and promotional materials (including, without limitation, sales/marketing pitches and presentations, and client/customer lists) for the purpose of identifying Client as a customer of Townsquare.
8.3 Relationship of the Parties. The relationship of the Parties hereunder is that of independent contractors. Nothing in this Agreement shall be deemed or construed to constitute an agency, partnership or joint venture between the Parties.
8.4 No Assignment. Client may not assign this Agreement, in whole or in part, without the prior written consent of Townsquare.
8.5 Notices. Except with respect to the cancellation notice set forth in Section 4.2, all notices and other communications required or permitted under this Agreement shall be in writing and sent by courier or via e-mail or facsimile.
8.6 Entire Agreement. This Agreement (including all of the Exhibits hereto) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior understandings, communications and agreements, written or oral, between them with respect thereto. This Agreement may not be amended or modified, except by a written instrument executed by both Parties.
8.7 Severability. If any provision or any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, such shall be deemed stricken and deleted from this Agreement to the same extent and effect as if never incorporated herein, but all other provisions of this Agreement and any remaining portion of any provision which is not deemed illegal, invalid or unenforceable shall continue in full force and effect.
8.8 No Waiver. No failure or delay by a Party to exercise any remedy in the event of a breach of this Agreement by the other Party will in any way operate as a waiver of such remedy, nor will any single or partial enforcement of any remedy for breach preclude the further enforcement of such remedy or the enforcement of any other remedy.
8.9 Governing Law. This Agreement, including all disputes and controversies between the Parties arising from or connected to this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflict of laws rules.
Townsquare Engage Platform Terms
We reserve the right to make changes, at any time, to the Web-App, this site and this Agreement. Your continued use of this site or the Web-App will constitute your acceptance of any new or amended terms and conditions.
To the extent that the provisions of Regulation (EU) 2016/679 ("GDPR") apply to the processing of personal data under these Terms of Service, Our Technology Partner's Data Processing Addendum serves as an integral part of these Terms of Service.
You and your Users are expressed prohibited from using Our services in any manner that involves the maintenance, creation, transmission, receipt, use or processing of Protected Health Information, as defined by HIPAA. We will not be responsible in any manner to comply with HIPAA in connection with your account.
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YOUR USER'S FEES
The Web-App allows you to create and send detailed invoices to your Users based on information you provide, including, but not limited to, the description of your company, the services you provide (the "Services"), any applicable taxes and so forth. Upon scheduling an appointment or ordering Services, your Users will be directed by the Web-App to make the required payment to your account at the Gateway through one of the payment methods recognized by the Gateway (including but not limited to credit cards, debit cards and bank accounts). The payments will be transferred by the Gateway to your account minus any fees payable to the Gateway in accordance with the Gateway's specific terms of service. You hereby grant Us permission to utilize any applicable technological means in order to facilitate the above-mentioned connection between the Users, the Web-App and the Gateway. You are fully responsible for the determination and collection of the fees from your Users as well as for any dispute, chargebacks and refunds required by your Users, the Gateway or other financial institution involved in the payment process and We will not have any control or responsibility with regards to any of the forging.
WE ARE NOT RESPONSIBLE FOR THE INFORMATION YOU PROVIDE IN YOUR INVOICES OR FOR ANY FAILURE BY USERS TO MAKE DUE PAYMENTS OR FOR YOUR FAILURE TO COLLECT SUCH PAYMENTS.
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The audio and visual information, documentation, data, software, products, services, material and related graphics available on this site ("Materials") and the Web-App are provided by Us. The Web-App and the Materials contained on this site are protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties.
As between the parties, We alone own all rights, title and interest evidenced by, embodied in, and/or attached/connected/related to the Web-App and the Materials. Our name, trademarks, service marks, logos and the product names associated with the services provided by Us, are trademarks and/or service marks and/or trade names owned by Us or third parties that licensed their rights to Us, and no right or license is granted hereunder to use them. You may not reproduce, edit, modify, display, distribute or make any other use of the Web-App or the Materials, in any form or by any means, without Our prior written consent. We grant you permission to integrate the Web-App on your website and use it solely for the performance of the Services, provided that you do not modify the Web-App or any Materials and provided further that you retain all copyright and proprietary notices as they appear in the Web-App and Materials.
You expressly agree that Our logos and other references to Us such as "powered by Townsquare Interactive" will be displayed on the Web-App's interface.
You may not use the Web-App or any content contained in the Materials in any manner that may give a false or misleading impression or statement as to Us or any third party referenced in the Web-App or the Materials. You agree to use the site, the Web-App and the Materials accessible via the site only for lawful purposes.
We do not claim ownership over content, such as text and images that you upload through the Web-App. However, when you do so, you represent and warrant to us that you are the rightful owner of all rights to that content or that you are licensed by the rightful owners to post and use such content on the Internet through the Web-App, in accordance with this Agreement. Without derogating from the foregoing, We do not endorse or assume any responsibility with respect to content posted by you through the Web-App and marked improperly.
This Agreement does not convey to you any ownership interest in or to the Web-App, but only a limited and revocable right of use in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of Our intellectual property rights which include, without limitation, unpatented inventions and ideas, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world and under any law, as well as any goodwill associated therewith. Use of the Web-App in violation of the limited license granted hereunder will result in the termination of this Agreement and may expose you to claims for damages. You agree to take all necessary steps to prevent any unauthorized disclosure or use of the Web-App, or any part thereof, by others.
Except as expressly permitted in this Agreement, you may not: (i) commercially exploit the Web-App or make it available to any third party in any way; (ii) display publicly, decompile, disassemble, reduce to human readable form, execute publicly, adapt, process, compile, translate, lend, rent, reverse engineer or combine the Web-App with other software or services; (iii) interfere in any manner with the functionality of the Web-App or use the Web-App in any way that breaches any code of conduct, policy or other notice applicable to the Web-App; (iv) copy any ideas, features, functions or graphics of the Web-App or any content, including the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Web-App (collectively, "Content"); (v) use the Web-App for commercial purposes (other than for the performance of the Services), including but not limited to, using the Web-App's platform to send commercial email solicitation or advertisements or any unsolicited bulk e-mail or unsolicited commercial e-mail or any activities that violate anti-spamming laws and regulations; (vi) modify, alter or create derivative works of the Web-App, or any part of the Web-App, either by yourself or by a third party on your behalf, in any way or by any means whether electronic, mechanical, optical or others, other than expressly permitted in this Agreement; (vii) remove or tamper with any trademark, logo, copyright or other intellectual property notice appearing on or contained within the Web-App, whether of Us or any other third parties; or (viii) otherwise use the Web-App not in compliance with the terms of this Agreement.
RESPONSIBILITIES AND ACCEPTABLE USE OF THE WEB-APP
You are solely responsible for the performance of the Services and the manner in which the Services are performed, and We will not bear any liability in connection therewith nor will We be responsible for any claim arising out of, or resulting from, the Services or their performance by you.
By using the Web-App, you represent to Us that: you are at least 18 years old; you are qualified to provide the Services; and you will provide the Services in accordance with any professional rules and regulations which apply to you or to the field of practice in which the Services are being rendered, to the extent that such professional rules and regulations exist, and with any legal obligations imposed on you in connection with such Services.
You are responsible for all of the acts or omissions associated with your access and use of the Web-App and the access and use of the Web-App by anyone on your behalf. You shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Web-App, including those related to data privacy, international communications and the transmission of technical or personal data.
You shall comply with any instructions concerning access to and/or use of the Web-App that We may offer from time to time.
You specifically agree not to, in any way: (i) access (or attempt to access) the Web-App by any unauthorized or automated means, other than through the interface that is provided by Us; (ii) breach this Agreement or any other applicable rules and instructions that We may convey with respect to the use of the Web-App; (iii) interfere with or disrupt the integrity or damage the performance of the Web-App or any other computer system or network or circumvent or manipulate the operation, or functionality of the Web-App, including any hosting services provided by third parties to facilitate the Web-App; (iv) post false, inaccurate, or misleading content or content which is not compatible with the defined topics, or with the rules of behavior, in the Web-App; (v) use robots, crawlers and similar applications to collect and compile Content from the Web-App, for the purposes of competing with the Web-App, or in such ways that might impair or disrupt the Web-App's functionality; (vi) impersonate any person or entity, or make any false statement pertaining to your identity, employment, agency or affiliation with any person or entity; (vii) collect or process personal information of Users without their explicit consent; (viii) be involved in any illegal activities, including promoting, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography; (ix) violate the security or integrity of any network, computer or communications system, software application, or network or computing device involved in the Web-App; (x) interfere with the proper functioning of any system, including deliberate attempt to overload a system by mail bombing, or flooding techniques; or (xi) send, store, provide or link through the Web-App to any content or material that contain or may reasonably be deemed as:
- Infringing or violating intellectual property rights of other parties, including patents, copyrights and trademarks;
- Software viruses, Trojan Horses, Worms, Vandals, Spyware and any other Malicious Applications or any other similar software or programs that may damage the operation of the Web-App;
- Encouraging, supporting, assisting, providing instructions or advising in the committing of a criminal offense, under applicable laws;
- Constituting a violation of a person's right for privacy or right of publicity;
- Prohibited by any applicable law, including court restraining orders, to be posted, published, disseminated, or otherwise made available to the public;
- Threatening, abusive, harassing, defamatory, libelous, vulgar, obscene or racially, ethnically or otherwise objectionable;
- Unsolicited commercial communications ("spam"), chain letters, or pyramid schemes.
We reserve the right to review any content posted using the Web-App and delete, remove, block access to it, or refuse to upload it through the use of the Web-App, for any reason that We may consider to be justified in Our sole discretion, including: (i) preventing misuse of the Web-App; (ii) when We deem the content to be in breach of this Agreement, or an infringement of any applicable law; (iii) when your user account is canceled, either by yourself or by Us; and (iv) when the owner of content that you have posted on the Internet wishes it to be removed, whether as result of a person's complaint, or of Our own initiative.
We do not warrant or guarantee that any content that you wish to upload, store, provide, or link to through the Web-App, will be uploaded, stored, provided or linked to.
Nothing in the foregoing, however, shall impose on Us any responsibility to check, review, screen or supervise any content posted on the Web-App, and nothing in the foregoing shall derogate from or relieve you of any of your representations, warranties and undertakings in this Agreement.
DISCLAIMER OF WARRANTIES
We intend for the Materials contained on this site to be accurate and for the Web-App to be reliable. The Materials and the Web-App may, however, contain technical inaccuracies, typographical errors or other mistakes. We may make corrections or other changes to the Web-App and the Materials at any time. We reserve the right to make corrections, modifications, enhancements, improvements and other changes to the Web-App and to its products, programs and services at any time, or to discontinue the Web-App or any other products, programs, or services without notice.
In addition, the Web-App's performance is measured using specific computer and communication systems and components and reflects approximate performance of the tested products. Any difference in hardware or software may affect actual performance.
THE WEB-APP AND MATERIALS ON THIS SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL EXERCISE YOUR OWN INDEPENDENT ANALYSIS AND JUDGMENT IN YOUR USE OF THE WEB-APP AND MATERIALS. WE ASSUME NO LIABILITY FOR YOUR USE OF THE WEB-APP AND THE MATERIALS OR ANY APPLICATIONS OR ASSISTANCE PROVIDED BY US.
NOTHING IN THIS AGREEMENT CONSTITUTES ANY WARRANTY OR REPRESENTATION ABOUT THE SUITABILITY OF THE WEB-APP FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION RESULTING FROM USE OF THIS SITE OR ARISING OUT OF THE USE OR PERFORMANCE OF THE WEB-APP OR THE MATERIALS AVAILABLE ON THIS SITE, REGARDLESS OF WHETHER WE OR ANY AUTHORIZED REPRESENTATIVE OF OURS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
Notwithstanding anything to the contrary in this Agreement or elsewhere, you agree to indemnify, defend and hold harmless Us and Our officers, managers, directors, shareholders, employees, sub-contractors, agents, licensors and anyone acting on their behalf, at your expense and immediately after receiving a written notice from Us, from and against any damages, loss, costs, expenses and payments, including reasonable attorney's fees and legal expenses, resulting from any complaint, claim or demand by any third party, including Users, arising from or in connection with the use of the Web-App or the rendering of the Services, any of your actions or omissions with respect to the performance of this Agreement, any communications that you convey through the Web-App, or your breach of this Agreement (including, without limitation, any of your undertakings or representations thereunder) or any other terms, laws, rules or regulations applicable to the Web-App or the Services, or your violation or infringement of a third party's rights.
SPECIFIC NOTICE REGARDING LINKS TO THIRD PARTY SITES
This site and the Web-App may contain certain links that will let you access other websites that are not under Our control. The links are only provided as a convenience and We do not endorse any of these websites. We are not responsible for the contents of any linked site or any changes or updates to such sites. We assume no responsibility or liability for any material that may be accessed on other websites or reached through this site or the Web-App.
OUR PUBLICATION OF INFORMATION REGARDING THIRD-PARTY PRODUCTS OR SERVICES DOES NOT CONSTITUTE AN ENDORSEMENT REGARDING THE SUITABILITY OF SUCH PRODUCTS OR SERVICES OR A WARRANTY, REPRESENTATION OR ENDORSEMENT OF SUCH PRODUCTS OR SERVICES, EITHER ALONE OR IN COMBINATION WITH ANY OF OUR PRODUCTS OR SERVICES.
The trademarks, service marks and logos used and displayed on this site or the Web-App are registered and unregistered trademarks and service marks of Ours and others. All other registered and unregistered trademarks used on the Site or the Web-App are the property of their respective owners. Except as provided herein, you are not granted, expressly or by implication, estoppel or otherwise, any license or right to use any of Our trademarks, service marks or logos ("Marks") used or displayed on the site or the Web-App without Our prior express written permission and, in each case: (a) are subject to Our usage guidelines, (b) all use and goodwill generated thereby shall inure to Our benefit, and (c) We are entitled to monitor and control the nature and quality of the Marks in connection with such use. When used with Our permission, all trademarks must be identified as trademarks of Ours using the appropriate symbol (e.g., ™ or ®) at the first occurrence in the text of any published printed or electronic communications.
AVAILABILITY AND INTERNET DELAYS
The availability and functionality of the Web-App depend on various factors and elements, including software, hardware and communication networks, which may be provided by third parties. These factors are not fault free. We do not warrant or guarantee that the Web-App will operate without disruption, limitations, delays, errors or interruptions, or that it will be accessible, or available at all times, or immune from unauthorized access or error free.
TERM AND TERMINATION
THIS AGREEMENT IS EFFECTIVE FROM THE MOMENT OF YOUR ACCEPTANCE, BY CLICKING ON THE "I AGREE" BUTTON (OR ANY SIMILAR BUTTON), AND SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL TERMINATED IN ACCORDANCE WITH THE TERMS OF THIS SECTION. We have the right to terminate this Agreement immediately, upon written notice to you. You have the right to terminate this Agreement immediately, upon written notice to Us, provided, however, that any Fees that have been received by Us prior to such termination shall be non-refundable.
The expiry or termination of this Agreement for any reason shall not affect any rights, obligations or liabilities accrued before the date of termination or expiry, or any rights, obligations or liabilities specifically stated herein to continue in force after and despite expiry or termination.
We may give you notice (on behalf of Us and of a User or other third parties, to the extent necessary) by means of a general notice on the Web-App or by electronic mail to your e-mail address on record in Our account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after posting or 12 hours after sending by email. You may give notice to Us at any time by email addressed to email@example.com. We reserve the right to publish - including on Our website - any communications with you, as long as your personal details are not revealed without your prior consent.
MODIFICATION TO TERMS
We reserve the right to modify the terms and conditions of this Agreement or any policies relating to the Web-App. Changes will take effect 7 days after We have posted an initial notification on the Web-App, unless such amendments are made in order to comply with legal requirements. If Our amendments are made to comply with legal requirements, such amendments will become effective immediately upon their initial posting, or as otherwise required by applicable law.
You agree to be bound by any of the changes made in this Agreement, including changes to any and all documents, forms and policies incorporated herein and any other policies relating to the Web-APP. Continued use of the Web-App after any such changes shall constitute your consent to such changes. If you do not agree with any of the amended terms, you must cease any further use of the Web-App. The date at the beginning of this Agreement indicates the last date that the Web-App Agreement was updated.
We advise you to periodically read the terms of this Agreement, as they may change from time to time.
CHANGES IN OWNERSHIP
We may transfer ownerships rights and title in the Web-App or in Us (whether by way of merger, sale of shares, sale of assets, license or otherwise), to a third party, provided that your rights remain in effect according to this Agreement. In which case, all of the details and information pertaining to you will be passed on to the corporation receiving the rights in the Web-App and you hereby give your prior consent thereto.
The provisions of the intellectual property, disclaimer of warranty, limitation of liability and indemnification sections, shall survive any termination or expiration of this Agreement.
We use commercially reasonable efforts to implement information security systems and procedures to secure your personal information and to prevent unauthorized access to the Web-App and any information routed through or stored on the Web-App. To learn more about how We secure personal information, please see the Privacy Policies.
Cookies are alphanumeric identifiers that We transfer to your computer's hard drive through your web browser to enable Our systems to recognize your browser and tell Us how and when pages in Our website are visited and by how many people. Our cookies do not collect personal information, and We do not combine information collected through cookies with other personal information to tell Us who you are or what your screen name or e-mail address is. The "help" portion of the toolbar on the majority of browsers will direct you on how to prevent your browser from accepting new cookies, how to command the browser to tell you when you receive a new cookie, or how to fully disable cookies. In addition to the information that you share with Us, this website uses standard log files. These logs include Internet Protocol (IP) addresses, browser type, Internet service provider (ISP), and page information in order to administer Our website, refine content and flow, and to gather broad demographic information for aggregate use.
This website does not target and is not intended to attract children under the age of 16. We do not knowingly solicit personal information from children under the age of 16 and We do not send them requests for personal information.
All requests for further information or for permission to use the Web-App or reproduce any portions of the Materials in addition to the permission granted above should be directed to: firstname.lastname@example.org.
This Agreement and the use of the Web-App by you will not be construed as, and do not create, or imply a relationship of agency, joint venture, franchise or partnership between you and Us, unless expressly stated herein. You may not make any representations, bind or hold yourself out as a representative of Ours.
This Agreement shall be exclusively governed by the laws of the State of Delaware, without regard to the choice or conflicts of law provisions thereof, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of Delaware. You agree to resolve any dispute or claim that you may have against Us and to submit to personal jurisdiction in the exclusive jurisdiction of courts in Delaware. This Agreement comprises the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. The failure of Us to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Us in writing. The section headings in this Agreement are included for convenience only and shall take no part in the interpretation, or construing of this Agreement. "Including", whether capitalized or not, means without limitation. This Agreement may not be assigned by you without Our prior written approval and any assignment without such prior written consent shall be null and void. We may freely assign Our rights and obligations in this Agreement, in part or in full.