WebAnalytix, LLCTheTop100 Service AgreementApril 1, 2014This Service Agreement (this “Agreement”) is a legal agreement between WebAnalytix, a LLC filed in the State of California (“WebAnalytix”, “us” or “we”), and the business by which the individual accepting this Agreement is employed or otherwise engaged (the “Client” or “you”). WebAnalytix and Client are each referred to herein as a “Party,” and collectively as the “Parties.” This Agreement governs in its entirety the relationship between WebAnalytix and the Client in connection with the TheTop100 (the “Service”) and the paid Premiere Services Program (the “PSP”).
- Description of the Service.
- 1.1 Overview. WebAnalytix will provide Client with a subscription to the Service and, upon election, the PSP, which will enable Client to: (i) gain exposure and recognition from the online platform displaying the Client profile, (ii) gain exposure from multiple profile listings on third-party online platforms, (iii) benefit from the marketing activities of TheTop100, including multiple advertising outlets including, but not limited to, Internet, radio, print, television, etc.
- Fees and Payment.
- 2.1 Fees. The Service is free. By registering for the PSP, you agree to the payment amount that will be described in the invoice you will receive from WebAnalytix, and/or during the online registration process for the PSP. Any PSP fees are exclusive of any sales or other taxes.
- 2.2 Provision of Credit Card Information; Payment Terms. You will be required to provide WebAnalytix with a valid credit card number upon registration for the PSP. You hereby warrant and represent that you have the authority to provide such credit card information to WebAnalytix and shall be responsible for all changes made thereto. WebAnalytix 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 WebAnalytix at the time of registration for the PSP, though WebAnalytix 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 we incur in connection with collecting late amounts.
- Use of the Service.
- 3.1 License. WebAnalytix hereby grants Client a limited, non-exclusive, non-transferable right and license to access and use the Service solely in connection with Client’s legitimate business needs. This license will terminate in the event this Agreement expires or is terminated pursuant to Section 4, in which case Client will immediately cease any further use of the Service.
- 3.2 Ownership. The Service (TheTop100) is the copyrighted work of WebAnalytix and/or its various third-party licensors and partners.
- 3.3 Trademarks. The trademarks, service marks, logos and any designs used or displayed on the Service (TheTop100) are trademarks and/or service marks owned by WebAnalytix or its licensors. Nothing in this Agreement shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use WebAnalytix or TheTop100 trademark displayed on the Service without WebAnalytix’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 Service is limited solely to those rights granted in Section 3.1. Client shall not copy, prepare derivative works, decompile or reverse engineer the Service. Client will not remove any trademark, copyright, or other proprietary rights notices which appears on the Service. In addition, Client will not use the Service for any unlawful or fraudulent purpose including, but not limited to: (a) impersonating any person or entity or (b) harvesting or collecting any personal information in violation of applicable law.
- 3.5 License to Client Content. Client hereby grants WebAnalytix a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of WebAnalytix’s business), perpetual, irrevocable right and license to use, copy, publish, distribute, syndicate, reformat and update (for example, to improve accuracy and/or standardize formats) any and all listing content and other content that Client provides in connection with its use of the Service. WebAnalytix may sublicense this right to any other online partners. This license will survive any termination or expiration of this Agreement.
- 3.6 License to Client Marks. Client hereby grants WebAnalytix a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of WebAnalytix’s business) right and license to use Client’s marks on any of WebAnalytix’s websites or other marketing materials to indicate your participation in the service. WebAnalytix may sublicense this right to any other online partners. In the event of any termination or expiration of this Agreement, WebAnalytix will use commercially reasonable efforts to remove your marks from WebAnalytix’s websites and marketing materials within a reasonable period of time, and to instruct WebAnalytix’s online partners to do the same.
- Term and Termination.
- 4.1 Term. This Agreement is effective as of the date you register for the Service, and if applicable, the date your register for the PSP, and shall remain in full force and effect, for twelve (12) consecutive months, at the end of which the Agreement will automatically renew for an additional twelve (12) months, unless terminated by either party in accordance with this Section 4, or unless negotiated and stated otherwise in the invoice received by WebAnalytix after the acceptance of this Agreement.
- 4.2 Termination by Client. Client may terminate this Agreement and cancel your Service, and/or PSP, at any time for convenience upon thirty (30) days written notice to WebAnalytix (as provided in Section 8.2).
- 4.3 Termination by WebAnalytix. We may terminate this Agreement and cancel your Service, and/or PSP, at any time for convenience at any time upon thirty (30) days written notice (as provided in Section 8.2). We may terminate this agreement, with cause, forthwith, in the event Client does not remain in good public standing as an Unparalleled Professional.
- 4.4 Termination with Cause. Either party shall have the right to terminate this Agreement forthwith by written notice (as provided in Section 8.2) to the other in the event that:
- (a) the other party breaches any term of the Agreement and does not remedy its breach within thirty (30) days of receipt of written notice of such breach from the first party;
- (b) the other party assigns this Agreement without securing the advance written approval of the first party; or
- (c) the other party becomes subject to any voluntary or involuntary petition for bankruptcy or any other similar proceedings for the relief of debtors.
- 4.5 Survival. Upon any termination or expiration of this Agreement, Client will pay WebAnalytix the PSP Fees for each month that has commenced prior to the effective date of such termination or expiration. The following provisions shall survive any termination of this Agreement: Section 3.4 (“License to Client Content”), this Section 4.4 (“Survival”), Section 5 (“Disclaimer and Limitation of Liability”), Section 6(“Indemnification”), Section 7 (“Representations and Warranties”) and Section 8 (“General Provisions”).
- Disclaimer and Limitation of Liability. THE SERVICE, PSP, AND ANY OTHER SERVICES PROVIDED BY WEBANALYTIX IN CONNECTION WITH THIS AGREEMENT ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, WEBANALYTIX 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. WEBANALYTIX AND OTHER WEBSITES, DATABASES AND/OR THIRD-PARTY PROGRAMS CONTAINED WITHIN THE SERVICE OR PSP MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. WEBANALYTIX HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD-PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF, OR INABILITY TO USE, WEBANALYTIX WEBSITES, DATABASES AND/OR PROGRAMS. WEBANALYTIX 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 WEBANALYTIX’S WEBSITE, DATABASES AND/OR PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT SHALL WEBANALYTIX OR ANY LISTING 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 WEBANALYTIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WEBANALYTIX 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 WEBANALYTIX’S CONTROL. IN ADDITION, AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, WEBANALYTIX’S LIABILITY UNDER ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO $500. To the extent any liability of WebAnalytix 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, WebAnalytix, its third-party licensors 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 participation in the Service and/or the PSP; (c) any allegation arising from or relating to any listings or other content provided by you, including, but not limited to, any allegation that any listings content, or other content provided by or on behalf of you 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 or services; and/or (e) any third-party dispute with you, 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 or regulation to which you 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.
- General Provisions.
- 8.1 Confidentiality. You may not disclose the terms or conditions of this Agreement to any third-party, except to your professional advisors under a strict duty of confidentiality or as necessary to comply with applicable laws or regulations.
- 8.2 Notices. All notices between WebAnalytix and Client shall be in writing, and shall be delivered by certified or registered mail. All notices to WebAnalytix shall be sent to WebAnalytix, LLC at 8954 Rio San Diego Drive Suite 102, San Diego, CA, 92108, attention President. Any notices to Client shall be sent to the mailing address indicated by Client during the online acceptance of Agreement terms process. The parties shall notify each other of any change in mailing address within 10 business days of such change.
- 8.3 Policies. Client’s participation in the Service (TheTop100), and any participation in the PSP shall be subject to all applicable WebAnalytix policies including, without limitation, the Privacy Policies posted on any Website on which Client listings are published, and any applicable Website specification requirements (collectively, “Policies”). The Policies may be modified by WebAnalytix at any time. The latest Policies can be found on any of WebAnalytix’s websites. You should review the Policies regularly. By your continued participation in a Service and/or PSP, you agree to all of the associated terms and conditions contained within the Policies effective at that time.
- 8.4 Force Majeure.
- (a) Neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including, and without limitation to, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion.
- (b) In the event of either party being so delayed or prevented from performing its obligations, such party shall give notice in writing (pursuant to Paragraph 8.2) of delay or prevention to the other party as soon as reasonably possible of the starting date and extent of such delay or prevention and the cause thereof. The party whose performance has been delayed or prevented shall resume performance of its obligations as soon as reasonably possible after the removal of the cause and shall notify the other party. In the event that such cause continues for more than six (6) months, either party may terminate this Agreement on thirty (30) days’ written notice to the other party.
- 8.5 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.
- 8.6 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 ventures or partners for any purpose.
- 8.7 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 California, without regard to its choice of law provisions. Each of the Parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in San Diego County, California, for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts.
- 8.8 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof. WebAnalytix may modify the terms of this Agreement at any time without liability, and your use of the Service (TheTop100) and the PSP, after notice that the terms of this Agreement have changed constitutes your acceptance of the new terms.
- 8.9 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.
- 8.10 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.
TheTop100WebAnalytix, LLC
8954 Rio San Diego Drive, Suite 102San Diego, CA 92108
T: (619) 400-1199
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