Local Marketing Suite Terms
These Terms and Conditions (this “Agreement”, “Master Agreement“) is a legal agreement between Xtreme Websites, LLC a Maryland corporation (“Xtreme”, “us” or “we”), and the business by which the individual accepting this Agreement is employed or otherwise engaged (the “Client” or “you”). Xtreme 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 Xtreme and the Client in connection with the Products (as defined below) for which Client has purchased a subscription. By clicking a box or link 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. Xtreme offers its clients subscriptions to various products and services (each, a “Product”). Use of Products are subject to additional technical standards, content rules and other terms and conditions (of both Xtreme and its Partners (as defined below) (collective, the “Product Terms”). The Product Terms are currently located at http://www.xtremewebsites.com/legal/lm-product-terms/, and are incorporated into, and form a part of, this Agreement.
1.2 Partners. Certain Products may involve distribution of Client Content (as defined in Section 3.4) 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 Xtreme or the Partner at any time to comply with such policies, (ii) Xtreme 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. XTREME 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.
1.3 Implementation at Client’s Request. Xtreme 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 Xtreme is at the Client’s own risk. XTREME 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, taxes, levies, duties or similar governmental assessments (other than taxes on Xtreme’s income). Client is responsible for paying any Taxes associated with its purchases hereunder. Purchased subscriptions may not be cancelled during the subscription term and any fees paid are nonrefundable. Client agrees that its purchases are not contingent on Xtreme’s delivery of any future functionality or feature.
2.2 Provision of Credit Card Information; Payment Terms. You will be required to provide Xtreme 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 Xtreme and shall be responsible for all charges made thereto. Xtreme 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 Xtreme at the time of registration, though Xtreme 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%) of the outstanding balance 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 Xtreme incurs in connection with collecting late amounts. If any amount owed by you under this Agreement is overdue, Xtreme may, without limiting our other rights and remedies, suspend your access to the Products until such amounts are paid in full. Notwithstanding the termination provisions set forth in Section 4.2, if your access to the Products has been suspended for a period of seven (7) days or more for an overdue payment pursuant to the preceding sentence, Xtreme may, upon notice to you, immediately terminate this Agreement and cancel your account.
2.3 Automatic Renewal. Xtreme 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. Xtreme may also periodically pre-authorize your credit card in anticipation of account or related charges.
- Use of the Products.
3.1 Right to Use. Xtreme and Partners 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 4.2, in which case Client will immediately cease any further use of the Products. Client is solely responsible for all use of the Products through any of its account(s).
3.2 Proprietary Rights. Xtreme technology partners own and retain all rights, title and interest (including all intellectual property rights) to the Products herein. Xtreme has the right to use all aspects of the technology and any software or other marketing materials in connection with the delivery of the Products hereunder.
3.3 Usage Restrictions. Client’s use of the Products is limited solely to those rights granted in Section 3.1. Client will not (i) copy, prepare derivative works of, decompile or reverse engineer any Product, or any portion of any of the Products, (ii) use the Products to store or transmit any malware, or for any unlawful or fraudulent purpose, or (iii) sell, resell, license, sublicense, distribute, rent or lease any Product. 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.
3.4 License to Client Content. Client hereby grants Xtreme non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of Xtreme’s business), perpetual, irrevocable, unlimited use rights (or a subset of such rights) to use, distribute, copy, publish, syndicate, reformat and update (for example, to improve accuracy and/or standardize formats) any and all business listing and other information or content that is made available by or on behalf of you in connection with your use of the Products (“Client Content”). Xtreme 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 Xtreme shall be the source of record for Client’s business listing information and that Client will only make available 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 (the “Effective Date”) and shall continue for a period of twelve (12) months (the “Initial Term”). Initial term may vary if the subscription is part of a larger All-Inclusive Service Agreement, at which point that agreement’s term will take precedence over this. After the expiration of the Initial Term, this Agreement shall renew automatically for a period of twelve (12) months, unless a prior cancellation request is received from client in accordance with this Section 4.2.
4.2 Termination. 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 to be effective at the end of your current subscription period (such cancellation notice may be provided through the client area at https://my.xtremewebsites.com). In the event of early termination, an early termination fee of 25% of remaining term balance will be applied to the account. In addition, Xtreme may, upon notice to you, immediately terminate this Agreement and cancel your account in the event of your material breach of this Agreement.
4.3 Survival. Upon any termination or expiration of this Agreement, Client will pay Xtreme 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 3.4 (“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 (“General Provisions”).
- Disclaimer and Limitation of Liability.THE PRODUCTS PROVIDED BY XTREME IN CONNECTION WITH THIS AGREEMENT ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, XTREME 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 XTREME PRODUCTS AND XTREME WEBSITE, AND OTHER WEBSITES, DATABASES AND/OR THIRD PARTY PROGRAMS CONTAINED WITHIN THE PRODUCTS, MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. XTREME HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR ANY CHANGES MADE TO THE CONTENT OF YOUR WEBSITE AS A RESULT OF XTREME’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, XTREME WEBSITES, DATABASES AND/OR PROGRAMS. XTREME 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 XTREME’S WEBSITE, DATABASES AND/OR PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT SHALL XTREME 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 XTREME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XTREME 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 XTREME’S CONTROL. IN ADDITION, AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, XTREME’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 XTREME UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE FIRST CLAIM ARISES. To the extent any liability of Xtreme 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, Xtreme, 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:
- the individual accepting this agreement is authorized to act on behalf of you and to bind you to this Agreement;
- you have the full power and authority to conduct your business, to enter into this Agreement, and to perform your obligations under this Agreement;
- you have obtained, and grant to Xtreme, sufficient rights to access and use the Content necessary to deliver the Products in accordance with this Agreement;
- your execution, delivery and performance of this Agreement will not conflict with or violate: (a) any provision of law, rule, regulation, industry guidelines or codes of conduct to which you or your activities are subject; (b) any order, judgment or decree applicable to you; (c) any provision of your organizational documents; or (d) any agreement or other instrument applicable to you; and
- you will comply with all applicable federal, state and local laws, rules, regulations, court orders, judgments and decrees.
- General Provisions.
8.1 Promotional Materials. During the term of this Agreement, Xtreme may use Client’s name and logo for the purpose of referring to Client as a Xtreme client on Xtreme’s website and in its other promotional materials.
8.2 Policies. Client’s participation in any subscription shall be subject to all applicable Xtreme 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 Xtreme at any time. The latest Policies can be found on this page. 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.
8.3 Representatives. Except as where otherwise stated, each Party is permitted to use contractors, agents and professional advisors (“Representatives”) in connection with this Agreement, but it is liable for their acts and omissions.
8.4 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.
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 venturers 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 Maryland, 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 Montgomery County, Maryland, U.S.A for any such disputes, and hereby irrevocably waive any objections to the laying of venue in such courts.
(Last Updated December 1, 2017)