ORDERED PRODUCTS AND SERVICES
All products and services ordered by Customer in the Order Form and/or any additional or supplemental order form are referred to herein collectively as the “Ordered Product(s)/Service(s)”. The Ordered Products/Services may include, but are not necessarily limited to, (i) advertising services (“Advertising”), (ii) the development, hosting, maintenance and/or support of one or more websites (each, a “Customer Website”) and/or (iii) the provision of other products or services that may include, among other things, email marketing and/or social media management services.
For each Ordered Product/Service, Trader Interactive Commercial hereby grants Customer a non-exclusive, non-transferable, revocable, limited license during the term of this Agreement to access and use that Ordered Product/Service and the related Trader Interactive Commercial Proprietary Materials (defined below) solely in connection with the lawful operation of its business expressly identified in the Order Form.
With respect to any Ordered Products/Services that include Advertising, Customer expressly acknowledges and agrees that (i) all Advertising content submitted to Trader Interactive Commercial for publication hereunder is subject to Trader Interactive Commercial’s approval in its sole discretion, (ii) Trader Interactive Commercial reserves the right in its sole discretion to reject or cancel any Advertising at any time, with or without notice to Customer, and (iii) the positioning within any applicable media (including Trader Interactive Commercial websites and/or third party websites) of all Advertising is and shall be at the sole discretion of Trader Interactive Commercial. In addition, while there is no requirement that Customer own the inventory/units included within any Advertising submitted hereunder (for instance, in the case of a broker or auction situation), (A) Customer must (and hereby represents and warrants that it does and shall) have all necessary rights to include such inventory/units within any and all such Advertising, and (B) Customer acknowledges and agrees that it is (and shall be) solely responsible for accurately representing all applicable inventory/units included within such Advertising (e.g., price, color, condition, features etc.), whether or not Customer owns such inventory/units, and Trader Interactive Commercial shall not have any liability whatsoever, to any person or entity, for any inaccuracies in any Advertising submitted hereunder.
With respect to any Advertising covered by an OEM “Co-Op” program, Trader Interactive Commercial hereby agrees that it shall reimburse Customer for any funds lost due to rejected claims based on Advertising content (but not if co-op funds are depleted) (the “Co-Op Reimbursement”). Trader Interactive Commercial’s agreement with respect to the Co-Op Reimbursement is valid for up to six (6) consecutive weeks, provided that (i) Advertising is submitted in time to seek pre-approval, (ii) notice of rejection is received by Trader Interactive Commercial from the applicable OEM (manufacturer) within two (2) weeks after Customer has received notice of rejection and (iii) the Co-Op Reimbursement will be limited to the amount of the co-op funds rejected within that time period. If Customer has received a Co-Op Reimbursement for a given co-op Advertising content violation, no Co-Op Reimbursement will be issued for future rejections due to the same infraction. – THIS IS NOT APPLICABLE FOR COMMERCIAL WEB SERVICES
Trader Interactive Commercial may also offer various products, services and/or other solutions that are provided by third parties and interoperate with one or more Ordered Products/Services hereunder, including but not necessarily limited to chat, social media management and data distribution (collectively, “Third-Party Products”). If (but only if) any ThirdParty Products are utilized together with Ordered Products/Services, Customer expressly acknowledges and agrees that the following terms shall apply with respect to such Third-Party Products: (i) any use by Customer of any Third-Party Products, and any exchange of data between Customer and any provider of such Third-Party Products, is solely between Customer and the applicable third-party provider, and Trader Interactive Commercial does not warrant or support any ThirdParty Products and hereby expressly disclaims any representations or warranties of any type or nature whatsoever with respect to any ThirdParty Products; and (ii) in addition to and not in limitation of the foregoing, Customer understands and agrees that (A) Customer shall look solely to the third-party vendor of the applicable ThirdParty Products (and not to Trader Interactive Commercial) for maintenance and support, including but not limited to resolution of system errors, bugs, patches and fixes, and (B) Customer’s sole and exclusive rights and remedies with respect to any ThirdParty Products, including rights and remedies in the event any Third Party Products give rise to an infringement claim, will be against the third-party vendor and not against Trader Interactive Commercial.
For each Ordered Product/Service, Customer shall pay Trader Interactive Commercial all fees designated in the Order Form for that product or service, as the same may be hereafter modified, which may include one-time “upfront fees” or set-up fees and costs and/or recurring “monthly fees” (collectively, the “Fees”).
Except to the extent that any such fees are payable in advance, Trader Interactive Commercial will invoice Customer for all Fees on a periodic basis (which will be monthly in most cases), and all invoices are due upon receipt. If any Ordered Products/Services are provided on a bundled basis, Traer Interactive Commercial will begin invoicing for those Ordered Products/Services when the first of those bundled Ordered Products/Services is deployed/activated.
Any invoice that remains unpaid thirty (30) days after the original invoice date shall be subject to interest on any outstanding balance at a rate equal to the lesser of (i) 1.5% per month or (ii) the maximum rate permitted by applicable law. Trader Interactive Commercial also reserves the right to impose a late fee of twenty dollars ($20) on any invoice that remains unpaid thirty (30) days after the original invoice date. If any outstanding Fees remain unpaid for thirty (30) (or more) days from the original invoice date, Trader Interactive Commercial may, without limiting any of its rights and remedies, suspend the provision of the Ordered Products/Services in respect of which payment has not been received plus any or all other Ordered Products/Services.
All Fees are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed for the provision of Ordered Products/Services, and Customer shall be solely liable for and shall pay all such taxes (except for any such taxes based on the net income of Trader Interactive Commercial), regardless of when they were incurred and/or whether or not they are included on any invoice.
Trader Interactive Commercial may modify any monthly Fees payable under this Agreement by giving Customer at least thirty (30) days’ prior written notice from time to time. Any such Fee modification shall not require an affirmative response by Customer or any further action by the parties; provided, however, if any such Fee modification will result in an increase in the Fees that are payable in respect of an Ordered Product/Service, then Customer may cancel the applicable Ordered Product/Service by giving Trader Interactive Commercial written notice of cancellation before the Fee increase goes into effect. If Customer does not timely cancel the applicable Ordered Product/Service, then such Fee increase shall be effective (and binding on Customer) as of the date specified in Trader Interactive Commercial’s initial notice.
Customer acknowledges and agrees that (i) in order to transact business using various applicable Ordered Products/Services, certain capabilities are required of Customer’s computing and telecommunications equipment (both hardware and software), (ii) Customer is obligated to procure and install for its use, at its own expense, all equipment and infrastructure (including wiring) that is necessary to access and otherwise receive the benefit of the applicable Ordered Products/Services, and (iii) Trader Interactive Commercial shall not be responsible or liable if for any reason Customer’s telecommunications and computing equipment is incompatible with or otherwise insufficient for Customer to utilize any applicable Ordered Products/Services.
Customer further acknowledges and agrees that (i) Trader Interactive Commercial, in its discretion, may track, analyze and/or create reports related to activity and/or results obtained in connection with Customer’s use of the Ordered Products/Services (collectively, “Results Reports”), provided, however, that the Results Reports shall not include or contain any lead data or similar data related to Customer’s own customers; and (ii) in furtherance thereof, Trader Interactive Commercial may install certain tracking pixels or other similar tools on the Customer Websites and the Customer Content (defined below) included therein (including photos) and use those pixels and tools to collect information relating to such use of the applicable Ordered Products/Services, which information may be used by Trader Interactive Commercial for any lawful purpose, including without limitation to create, market and sell products and services.
Customer acknowledges and agrees that, as between Customer and Trader Interactive Commercial, Customer is solely responsible for all products advertised via any Advertising hereunder (including but not limited to the pricing thereof) as well as all information, content, messages, editorial content, music recordings, photographs, videos, artwork or other similar content that is included within, displayed on or distributed through any Advertising, any Customer Website, any Trader Interactive Commercial website or any other product maintained or made available, in any media (electronic or otherwise), through any Ordered Product/Service (such content, except to the extent it incorporates any Trader Interactive Commercial Proprietary Material, is collectively the “Customer Content”). Without limiting the foregoing, Customer represents and warrants to Trader Interactive Commercial that (i) Customer owns the Customer Content and/or (ii) all licenses, rights and other permissions from third parties (including but not limited to ASCAP, BMI and the Copyright Clearance Center) that are necessary to display or distribute the Customer Content through the applicable Ordered Products/Services shall be obtained (for the benefit of Customer and Trader Interactive Commercial) and fully paid before such display and/or distribution commences and, further, shall thereafter be maintained in full force and effect by Customer for so long as such distribution continues hereunder. Customer acknowledges and agrees that Trader Interactive Commercial has not undertaken, and will not undertake, any obligation to investigate or evaluate the extent to which the display or distribution of any Customer Content infringes upon or misappropriates any right of any third party or is otherwise permissible.
PROPRIETARY RIGHTS; LICENSE; RESTRICTIONS
As between the parties, Trader Interactive Commercial shall own all right, title and interest in and to the Ordered Products/Services and all Intellectual Property Rights (defined below) relating to the Ordered Products/Services (and any derivative works or enhancements thereof), including, but not limited to, all associated software, technology, materials, documentation, trade names, trademarks, service marks, logos, and other distinctive brand features, the style and design of any Customer Website and any other text, audio, photo, video or other creative work, whether in print or electronic form, developed by Trader Interactive Commercial for Customer or any Customer Website, as well as the Results Reports and the content therein (collectively, the “Trader Interactive Commercial Proprietary Materials”). Customer shall not acquire any right, title or interest in the Ordered Products/Services or any other Trader Interactive Commercial Proprietary Materials, except for the limited use rights expressly set forth in this Agreement, and Customer shall not take any action to impair, limit or interfere in any manner with Trader Interactive Commercial’s ownership or rights with respect to any Trader Interactive Commercial Proprietary Materials. Any rights not expressly granted herein are deemed withheld. Except as expressly permitted in this Agreement, Customer may not use, reproduce, transfer, share, sublicense or transmit any Trader Interactive Commercial Proprietary Materials in any form or by any means without the prior written consent of Trader Interactive Commercial, and, without limiting the foregoing, Customer is expressly prohibited from reselling, loaning or otherwise sharing any Trader Interactive Commercial Proprietary Materials or divulging any related Confidential Information (defined below). Furthermore, Customer shall not directly or indirectly, and shall not permit or authorize a third party to, modify, translate, transform, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code from any Trader Interactive Commercial Proprietary Materials. Customer acknowledges and agrees that nothing herein shall be deemed or construed to limit in any manner Trader Interactive Commercial’s use of the Trader Interactive Commercial Proprietary Materials.
As between the parties, Customer shall own all right, title and interest in and to the Customer Content and all Intellectual Property Rights therein; provided, Customer hereby grants to Trader Interactive Commercial a non-exclusive, worldwide, irrevocable, perpetual, royaltyfree right and license (with rights to sublicense) to, reproduce, use, prepare derivative works from, display and distribute the Customer Content as may be necessary or appropriate for Trader Interactive Commercial to provide the Ordered Products/Services (without limiting the foregoing, Trader Interactive Commercial may share the Customer Content with its affiliates and applicable third-party vendors to the extent Trader Interactive Commercial deems necessary or appropriate to provide the Ordered Products/Services). In addition to and not in limitation of the foregoing, the parties acknowledge and agree that, (i) subject to the rights of applicable registries and/or registrars in and to any such domain name(s), Customer is the sole owner of the domain name(s) for any Customer Website registered by or on behalf of Customer, and Customer shall be solely responsible for any applicable domain name registration fees (Trader Interactive Commercial may host domain name(s) on behalf of Customer, but shall have no ownership rights or responsibilities with respect thereto); (ii) Trader Interactive Commercial shall have no responsibility for Customer’s failure to renew or maintain in good status Customer’s domain name(s); and (iii) Customer shall not be entitled to any credit against its Fees payable to Trader Interactive Commercial if any Customer Website is unavailable due to any failure to maintain domain name(s) in good standing.
During the term of this Agreement and for a period of six months following the expiration or termination hereof, Customer shall not (i) solicit or attempt to solicit any actual or prospective client or customer of Trader Interactive Commercial to purchase, license or otherwise acquire rights to use on a commercial basis any product or service that is similar in any material respect to any product or service provided by Trader Interactive Commercial as part of its offerings or (ii) induce or attempt to induce any customer, client or supplier/vendor of Trader Interactive Commercial to cease doing business with Trader Interactive Commercial.
As used herein, “Intellectual Property Rights” shall mean any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
During the term of this Agreement and for a period of three (3) years thereafter, each party (the “Receiving Party”) shall retain in confidence the terms of this Agreement and all confidential or proprietary information, technology, materials and know-how of the other party disclosed to or acquired by the Receiving Party pursuant to or in connection with this Agreement that either is designated as confidential and/or proprietary or that reasonably should be understood to be confidential and/or proprietary given the nature of the information and/or the circumstances surrounding its disclosure (“Confidential Information”). (Without limiting the generality of the foregoing, Customer expressly acknowledges and agrees that Trader Interactive Commercial’s Confidential Information includes the Trader Interactive Commercial Proprietary Materials.) In connection with the foregoing, (i) neither party shall use any Confidential Information with respect to which it is the Receiving Party for any purpose other than to carry out the activities permitted or contemplated hereunder (including provision or use of the Ordered Products/Services, as applicable), or to exercise or enforce its rights under this Agreement; (ii) each Receiving Party shall use commercially reasonable efforts to protect the Confidential Information of the other party against any unauthorized use or disclosure, and in any event shall take precautions at least commensurate with those taken to protect its own Confidential Information of a similar nature; and (iii) each Receiving Party shall notify the other party promptly in writing in the event such party learns of any unauthorized use or disclosure of any Confidential Information that it has received from such other party, and will cooperate in good faith to remedy such occurrence to the extent reasonably possible. The restrictions set forth in this Section 6 shall not apply to any information that: (A) was known by the Receiving Party without obligation of confidentiality prior to disclosure thereof by the other party; (B) was in or entered the public domain through no fault of the Receiving Party; (C) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; or (D) is independently developed by the Receiving Party without use of or reference to any Confidential Information of the other party.
If a Receiving Party is required to disclose Confidential Information of the other party pursuant to an order from a court of competent jurisdiction or governmental agency with appropriate legal authority, the Receiving Party shall (i) provide the disclosing party with prior notice of such compelled disclosure, (ii) provide reasonable assistance, at the disclosing party’s cost and expense, if the disclosing party wishes to contest the disclosure, and (iii) disclose only those portions of the Confidential Information as are necessary to comply with the order.
Upon request of the other party, each Receiving Party shall return to the other or destroy all materials, in any medium, which contain or reveal all or any part of any Confidential Information of the other party.
DISCLAIMER; LIMITATIONS OF LIABILITY
EACH ORDERED PRODUCT/SERVICE AND ALL OTHER TRADER INTERACTIVE COMMERCIAL PROPRIETARY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR EXPRESS WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, IF ANY, TRADER INTERACTIVE COMMERCIAL DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT/SERVICE OR ANY OTHER TRADER INTERACTIVE COMMERCIAL PROPRIETARY MATERIAL, AND TRADER INTERACTIVE COMMERCIAL HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE ORDERED PRODUCTS/SERVICES AND THE OTHER TRADER INTERACTIVE COMMERCIAL PROPRIETARY MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING ANYTHING IN THE FOREGOING, (i) TRADER INTERACTIVE COMMERCIAL DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE ORDERED PRODUCTS/SERVICES WILL BE UNINTERRUPTED OR ERRORFREE OR WILL FULFILL ANY PARTICULAR NEEDS OR PURPOSES; (ii) TRADER INTERACTIVE COMMERCIAL DOES NOT PROVIDE ANY WARRANTY AGAINST INFRINGEMENT; (iii) CUSTOMER ACKNOWLEDGES THAT THE OPERATION, USE OR PERFORMANCE OF THE ORDERED PRODUCTS/SERVICES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS AND LOSSES, INCLUDING INADVERTENT LOSS OR DISCLOSURE OF DATA OR DAMAGE TO MEDIA, WHICH MAY GIVE RISE TO LOSS OR DAMAGE, AND CUSTOMER AGREES THAT TRADER INTERACTIVE COMMERCIAL SHALL NOT BE LIABLE IN ANY EVENT ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES; AND (iv) CUSTOMER ACKNOWLEDGES AND AGREES THAT NO STATEMENTS MADE IN ANY MARKETING MATERIALS OR ANY OTHER DOCUMENTATION (OTHER THAN STATEMENTS THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT) HAVE FORMED A PART OF THE PARTIES’ AGREEMENT OR UNDERSTANDING, AND CUSTOMER IS NOT ENTITLED TO RELY ON ANY SUCH STATEMENTS IN MARKETING MATERIALS OR OTHER DOCUMENTATION.
IN ADDITION TO AND NOT IN LIMITATION OF ANY OTHER LIMITATION OF LIABILITY HEREUNDER, CUSTOMER ACKNOWLEDGES AND AGREES THAT (i) TRADER INTERACTIVE COMMERCIAL SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HEREUNDER, ANY ORDERED PRODUCT/SERVICE OR ANY TRADER INTERACTIVE COMMERCIAL PROPRIETARY MATERIAL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRADER INTERACTIVE COMMERCIAL SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR REVENUE, INCLUDING, BUT NOT LIMITED TO, ANY SUCH LOSSES INCURRED AS A RESULT OF LOSS OF USE OF ANY ORDERED PRODUCT/SERVICE OR ANY TRADER INTERACTIVE COMMERCIAL PROPRIETARY MATERIAL, LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED), BUSINESS INTERRUPTION, COST OF RECOVERING SOFTWARE OR DATA OR OTHER SIMILAR COSTS); AND (ii) TRADER INTERACTIVE COMMERCIAL’S TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND IN RESPECT OF ANY ORDERED PRODUCT/SERVICE OR TRADER INTERACTIVE COMMERCIAL’S OBLIGATIONS UNDER THIS AGREEMENT RELATING THERETO, OR THE RELATIONSHIP OF THE PARTIES HEREUNDER, REGARDLESS OF THE FORM IN WHICH ANY CLAIM MAY BE BROUGHT (INCLUDING ANY PURPORTED “CLASS ACTION” OR SIMILAR CLAIMS), SHALL NOT EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY CUSTOMER TO TRADER INTERACTIVE COMMERCIAL UNDER THIS AGREEMENT FOR THAT ORDERED PRODUCT/SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS.
If Trader Interactive Commercial is not appointed to handle the hosting of domain-name service (“DNS”) entries or domain names relating to the Customer Website(s) that constitute Ordered Products/Services hereunder (if applicable), then Trader Interactive Commercial shall not be responsible for any issues that may result from or relate to the hosting, including domain downtime. – THIS IS NOT APPLICABLE FOR COMMERCIAL TRUCK TRADER OR EQUIPMENT TRADER.
Customer assumes sole responsibility for all use of the Ordered Products/Services and the other Trader Interactive Commercial Proprietary Materials. Furthermore, Customer shall indemnify, defend and hold harmless Trader Interactive Commercial and its affiliates, and its and their respective officers, directors, employees, agents and representatives (collectively, the “Indemnified Trader Interactive Commercial Parties”), from and against any and all claims, proceedings and demands asserted or alleged by third parties against an Indemnified Trader Interactive Commercial Party (“Claims”), and from and against any damages, costs, expenses and liabilities of any kind whatsoever (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any such Claims, arising out of or in any way related to (i) Customer’s use of any of the Ordered Products/Services, (ii) any breach by Customer of any representations, warranties, covenants or other terms and conditions set forth in this Agreement, (iii) Customer’s violation of or failure to comply with any applicable law, rule or regulation, or (iv) any allegation that any Customer Content (including but not limited to any and all Advertising content), whether as displayed on or in any website, product or otherwise, (A) is inaccurate in any respect, or infringes (directly or in a contributory manner), violates or misappropriates any Intellectual Property Right of a third party, (B) violates any right of publicity or privacy of any third party or (C) constitutes unlawful use, disclosure or misappropriation of a third party’s trade secrets or otherwise constitutes unfair competition under applicable law.
In the event that use of the Ordered Products/Services (excluding any Customer Content displayed thereon or therein) or other Trader Interactive Commercial Proprietary Materials becomes, or in Trader Interactive Commercial’s sole determination is likely to become, the subject of any Claim of infringement by any third party, then Trader Interactive Commercial may at its option and expense either (i) use commercially reasonable efforts to procure for Customer the right to continue to use the applicable Ordered Product(s)/Service(s) or Trader Interactive Commercial Proprietary Materials as provided in this Agreement, or (ii) use commercially reasonable efforts to replace or modify the applicable Ordered Product(s)/Service(s) or Trader Interactive Commercial Proprietary Materials with a version that is noninfringing but that performs substantially similar functions. In the event that neither of the foregoing options is commercially viable in the sole judgment of Trader Interactive Commercial, then Trader Interactive Commercial may cancel its provision to Customer of the applicable Ordered Product(s)/Service(s) or other Trader Interactive Commercial Proprietary Materials and refund to Customer any Fees prepaid by Customer with respect thereto.
TERM AND TERMINATION
This Agreement shall commence on the date that the initial Order Form is submitted by Customer and accepted by Trader Interactive Commercial and shall remain in effect in accordance with the Order Form and this Agreement in general unless and until terminated in accordance with the terms hereof.
Customer may terminate this Agreement at any time during the initial one (1) year term hereof only upon delivery of (i) written notice to Trader Interactive Commercial and (ii) payment to Trader Interactive Commercial in an amount equal to (x) the number of months remaining in the initial term of the Agreement multiplied by (y) the Fees payable for the applicable Ordered Products/Services. Thereafter, unless otherwise expressly set forth in the Order Form with respect to a given Ordered Product/Services, Customer may terminate this Agreement with respect to any (or all) Ordered Products/Services by providing Trader Interactive Commercial with at least thirty (30) days’ prior written notice, delivered in accordance with the express requirements of Section 11(c) below. Trader Interactive Commercial may terminate this Agreement at any time on thirty (30) days’ prior written notice to Customer.
In addition to the foregoing termination rights, each party may terminate this Agreement at any time by written notice to the other party if (i) the other party materially breaches this Agreement and the breach remains uncured for a period of ten (10) days after notice of breach from the non-breaching party, or (ii) the other party ceases to do business in the normal course, a petition for relief under any bankruptcy legislation is filed by or against the other party, the other party makes an assignment for the benefit of creditors, or a receiver is appointed for all or substantially all of the other party’s assets. In addition to and not in limitation of the foregoing, Trader Interactive Commercial may terminate this Agreement (including any and all active Order Forms) immediately upon written notice to Customer in the event that Customer, or any of its employees, agents or other representatives, engages in any conduct that Trader Interactive Commercial in its reasonable discretion deems offensive, inappropriate or otherwise inconsistent with Trader Interactive Commercial’s standards of conduct, including, but not limited to, use of abusive, insulting or derogatory language with any Trader Interactive Commercial personnel.
Following termination of this Agreement for any reason, all rights and licenses granted herein shall terminate and Customer shall immediately cease use of all Ordered Products/Services (including by discontinuing use of all Trader Interactive Commercial Proprietary Materials) and certify to Trader Interactive Commercial that it has destroyed all copies of all applicable Trader Interactive Commercial Proprietary Materials. Notwithstanding the foregoing, termination of this Agreement shall not limit either party from pursuing any remedies available to it at the time of or in connection with such termination, nor shall such termination release Customer from its obligation to satisfy all payment obligations under this Agreement. Sections 2, 5, 6, 7, 8, 9(d), 10 and 11 shall survive any termination or expiration of this Agreement.
GOVERNING LAW; DISPUTE RESOLUTION
The parties hereby expressly (i) agree that their respective rights and obligations shall be determined by the terms of this Agreement and (ii) waive and opt out of any application of the Uniform Computer Information Transactions Act, or any version thereof, adopted in any State in any form to the maximum extent permitted by applicable law. This Agreement will be construed in accordance with and governed by the laws of the Commonwealth of Virginia (subject to clause (ii) in the preceding sentence), without regard to principles of conflicts of law. Each party irrevocably consents to the exclusive jurisdiction and venue of any local, state or federal court that is located in Norfolk, Virginia, in connection with any dispute, claim or controversy arising out of or relating to this Agreement, and waives any objections in the nature of jurisdiction or venue. In any action or other proceeding by which Customer’s account is referred to an attorney or collection agency for collection, Customer will pay for all collection fees, costs and expenses incurred by Trader Interactive Commercial in connection therewith. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Independent Contractors. The relationship of the parties hereunder is that of independent contractors. Neither Trader Interactive Commercial, on the one hand, nor Customer, on the other hand, has or will have any power to bind the other or to create any obligation on behalf of the other, nor shall it represent that it has any such power.
Promotional Matters. Trader Interactive Commercial may issue press releases and other marketing and promotional material describing the relationship created by this Agreement and, among other things, may display websites or products developed for or provided to Customer as examples of the service offerings available from Trader Interactive Commercial. Customer hereby grants Trader Interactive Commercial the right to use Customer’s name, trademarks, service marks and logos (i) in advertising targeted to all or any portion of Customer’s customer base in connection with the performance of the Ordered Products/Services hereunder, and (ii) in any advertising and publicity identifying Customer as a customer of Trader Interactive Commercial.
Notices. All notices and other communications to each party must be in writing and sent to the applicable address specified in the Order Form, with any such notices to Trader Interactive Commercial to be sent care of, (i) for routine business matters, the sales rep or client service rep assigned to Customer by Trader Interactive Commercial; or (ii) for material business or legal matters, Vice President/General Manager, Commercial Solutions. Unless otherwise agreed, notice shall be deemed given upon (A) receipt when delivered personally, (B) written verification of receipt from overnight courier, (C) verification of receipt of registered or certified mail, or (D) verification of receipt via email.
Force Majeure. No party shall be deemed to be in default or otherwise liable for any delays or failure in performance of its obligations under this Agreement (other than its obligation to pay any monies owed hereunder, which shall not be excused) resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including but not limited to acts of God or nature, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, shortages in fuel, transportation facilities or materials, or failures of equipment, Internet, telecommunications facilities or third party software programs.
Severability; Waiver. If any term or condition hereof is found or ruled to be invalid or unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
Remedies. Except as otherwise expressly set forth in this Agreement, a party’s remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of a party’s exercise of any other remedy.
Amendment; Assignment; Continuing Obligation. Except to the extent otherwise expressly provided herein (such as, by way of example, in the case of Fee increases by Trader Interactive Commercial), this Agreement may not be amended or otherwise modified except by a writing signed by both parties. This Agreement is and shall be freely assignable by Trader Interactive Commercial, but Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity without the express prior written consent of Trader Interactive Commercial. In addition, and notwithstanding anything to the contrary set forth in this Agreement, if another person, business or entity becomes the “Customer” under this Agreement, whether by way of a permitted assignment hereof, change of ownership of the original/current Customer hereunder, or any other means or mechanism whatsoever, then following such assignment, ownership change or other means/mechanism the original/current Customer shall nonetheless be and remain responsible for both (i) all obligations incurred by the original/current Customer hereunder prior to such change and (ii) any and all obligations (including but not limited to payment of all Fees) incurred by any such new “Customer” subsequent to such change.
Third Party Beneficiaries. This Agreement is not intended to benefit any third party and the parties do not intend to create, and do not and shall not be deemed to create, any third party beneficiary rights hereunder.
Entire Agreement. This Agreement, including the Order Form and these Terms & Conditions, constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, written or oral, with respect thereto.
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