Advertiser Agreement

TERMS & CONDITIONS

This Advertiser Agreement / Terms and Conditions document (a) forms a part of (i) any Order Form to which it is attached or linked by reference that both Trader Interactive, LLC (together with any applicable business line, subsidiary and/or affiliate  of Trader Interactive, LLC identified in such Order Form, collectively, “Trader”) and the customer identified therein (“Customer”) execute and deliver, whether in writing and / or electronically, and (ii) any other Order Form that references these Terms and Conditions that Trader and Customer may execute and deliver from time to time; and (b) sets forth additional terms and conditions relating to the provision and use of the Ordered Product(s)/Service(s) (defined below). The Order Forms described above, these Terms and Conditions, and all attachments, addenda, exhibits and schedules to such documents are, collectively, the “Agreement.” Capitalized terms that are not defined in these Terms and Conditions (or in an addendum or exhibit hereto), shall have the meanings given those terms under the Order Form.

 

    1. ORDERED PRODUCTS AND SERVICES
        1. All products and services ordered by Customer in any 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 Websites”) , (iii) digital retail services (“Digital Retail Services”), (iv) lead enrichment and user intelligence services (“Lead Enrichment Services”), (v) data services (“Data Services”), (vi) texting services (“Texting Services”) and/or (vii) the provision of other products or services that may include, among other things, email marketing and/or social media management services. 
        2. The initial term for each Order Form and all Ordered Products/Services described therein, unless and until terminated in accordance with Section 9, shall be (i) the initial term set forth in the Order Form, if any, or (ii) if no such term is set forth in the Order Form, a period of twelve (12) months starting on the initial “Begin Date” stated in such Order Form unless otherwise agreed in writing by Trader. Upon expiration of the initial term, the term for each Order Form and all Ordered Products/Services described therein shall be automatically renewed on a month-to-month basis (the initial term and any renewal term, the “Contract Period”), in each case, unless and until terminated in accordance with Section 9.
        3. For each Ordered Product/Service, Trader 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 Proprietary Materials (defined below) solely in connection with the lawful operation of its business.
        4. With respect to any Ordered Products/Services that include Advertising, Customer expressly acknowledges and agrees that (i) all Advertising content submitted to Trader for publication hereunder is subject to Traderʼs approval in its sole discretion, (ii) Trader 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 websites and/or third party websites) of all Advertising is and shall be at the sole discretion of Trader. 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 advertising arrangement), (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 shall not have any liability whatsoever, to any person or entity, for any inaccuracies in any Advertising submitted hereunder.
        5. With respect to any Advertising covered by an OEM (manufacturer) “Co- Op” program, Customer hereby agrees to the following terms and conditions regarding such Advertising (“Co-Op Advertising”): (i) Co-Op Advertising is available under this Agreement for any Advertising products/arrangements specified or otherwise designated by Customer’s applicable OEM; (ii) the dollar amount of Advertising that is eligible for consideration as Co-Op Advertising hereunder cannot exceed the total amount of Fees (defined below) payable by Customer under this Agreement; (iii) due to limited availability, ad detail banners, state banners and gallery banners provided by Trader as Co-Op Advertising under this Agreement cannot be discounted under any circumstances, regardless of whether such banners are provided as part of a bundle/package or provided “a la carte” (individually); (iv) Advertising must be part of a 12-month commitment from Customer under this Agreement in order to be considered for Co-Op Advertising hereunder and otherwise be eligible for participation in any OEM Co-op program; (v) Trader will file claims for Co-Op Advertising with the applicable OEM(s) on Customer’s behalf within twenty (20) days after the end of the previous month, and Customer must allow additional time for OEM reimbursement under its Co-Op program; and (vi) unless Customer specifically objects by providing Trader with written notice of its objection, Trader may provide to the OEM(s) associated with Customer its Listing Data (defined below) for any and all lawful purposes, including but not limited to regulation of any such OEM’s MSRP requirements and policies associated with any such Co-Op Advertising programs.
        6. With respect to any Ordered Products/Services that include Digital Retail Services, Trader hereby offers Customer the ability to list any unit of Customerʼs inventory for sale via Traderʼs “digital retail” platform as noted by one or more designated purchase online calls-to-action on Traderʼs applicable marketplace website (any such unit listed on a Trader website via any such call-to-action is a “Covered Unit”). Listing a Covered Unit enables a consumer to pursue the Covered Unit and generally transact on a Trader marketplace website (each, a “Transaction”), and Customer in turn hereby authorizes Trader to list and display any unit Customer designates as a Covered Unit utilizing the Trader Traxx platform provisioned by Trader to Customer. Customer also authorizes all applicable and relevant Trader partner vendors to provide their respective services as part of the Transaction process to facilitate / complete a consumerʼs buying experience on the applicable Trader website (the “Transaction Process”). Throughout the Transaction Process up until the point where a consumer discontinues a Transaction, the consumerʼs data / information will be supplied to Customer based on the various steps within the Transaction Process that the consumer has completion prior thereto. Customer (i) acknowledges that the Transaction Process may, upon completion of a Transaction or any portion thereof, require or otherwise involve Customer collecting payment from a consumer through Trader’s designated processing vendor; and (ii) agrees that Trader shall, through its processing vendor, (A) process and collect any such consumer payments, and (B) following the collection of payment from any such consumer, remit to Customer (and to Trader’s partner vendors, as applicable) their respective shares of any such collections.  Customer understands and agrees that Trader is providing the processing and collection services, and remittance to Customer, only as a courtesy and for the sake of convenience in connection with the Transaction Process; as such, Trader shall have no liability to Customer whatsoever in connection with the Transaction Process (including but not limited to the collection and remittance process), except to the extent any liability arises out of or results from Trader’s gross negligence or willful misconduct.  In addition, Customer acknowledges and agrees that on occasion Trader may be required to return funds to a consumer, whether in connection with a refund, error or other legitimate and lawful return transaction (each, a “Return Transaction”), and in connection therewith Customer hereby (x) authorizes Trader to debit Customer’s bank account to retrieve funds necessary in connection with a Return Transaction and (y) agrees that it may not and shall not implement a “debit block” on Trader or its ability to retrieve funds required for a Return Transaction.
        7. With respect to any Ordered Products/Services that include Lead Enrichment Services, Customer hereby authorizes an implementation team from Trader or a third party contractor acting on its behalf to work directly with Customer and/or Customer’s third party website provider (“Third Party Website Provider”) in order to implement certain lead enrichment and/or user intelligence functionality on the Customer Websites.  Specifically, Customer hereby grants Trader permission to (i) install certain tracking pixels or other similar tools (“Tracking Tools”) on Trader’s marketplace websites, the Customer Websites and the Customer Content (defined below) included therein, (ii) perform certain requests to enable the functionality of the Tracking Tools, including, but not limited to, placement of JavaScript code on the URLs of the Customer Websites and (iii) use the Tracking Tools to collect information relating to the Customer Websites and Customer’s use of applicable Covered Products/Services and/or any Analytics Data, Listings Data, Lead Data or Systems Data (each as defined below).  Customer further consents to Trader supplementing the privacy policies on Customer Websites with a Privacy Policy Addendum provided by Trader; however, Customer will be solely responsible for compliance with all applicable local, state, and federal laws related to Customer’s privacy policies and/or the operation of the Customer Websites, including, without limitation the Privacy Policy Addendum.  Customer consents to allow Trader to update the Privacy Policy Addendum from time to time at Trader’s discretion, and the privacy policies on Customer Websites shall be automatically modified by Trader to reflect any updates in the Privacy Policy Addendum.  Customer hereby grants to Trader a worldwide, fully paid up, nonexclusive, nontransferable, nonsublicensable, perpetual, irrevocable right and license to use, reproduce, aggregate, analyze, catalog, de-identify and anonymize Systems Data for the sole purpose of and solely to the extent necessary in connection with (x) Trader’s performance and exercise of its rights and obligations hereunder and the Privacy Policy Addendum and (y) operating the Tracking Tools.  Customer further grants to Trader a worldwide, fully paid up, nonexclusive, nontransferable, nonsublicensable, perpetual right and license to use, reproduce, aggregate, analyze and catalog the Systems Data for its internal business purposes, which purposes include, by way of illustration and not by way of limitation, benchmarking purposes, product and service development purposes (including improvements and enhancements to the Tracking Tool), analytics use, promotion of Trader’s products and services, evaluation of the efficiency, utility and functionality of Trader’s products and services, facilitation of the provision of software updates, license authentication and provision of end user support.  For purposes hereof, “Systems Data” means data, content and information regarding Customer’s use of the Tracking Tools in the nature of de-identified, anonymized, and aggregated (A) systems administrative data, (B) statistical data, (C) demographic data, (D) operational information and (E) data generated by or characterizing the use of the Tracking Tools, including, without limitation, devices, systems, related software, services or peripherals associated with the use of the Tracking Tools, in each case provided that such de-identified, anonymized and aggregated data cannot be attributed to any Customer Website and cannot be used to identify any individual.
        8.  With respect to any Ordered Products/Services that include Data Services, Trader hereby grants Customer a non-exclusive, non-transferable, revocable, limited license during the Contract Data to (i) access the data included withing the Data Services via any applicable data distribution mechanism designated by Trader and (ii) use the such and related Trader Proprietary Materials (defined below) solely for its internal use and for any other purpose, if any, expressly authorized in writing by Trader.
        9. With respect to any Ordered Products/Services that include Texting Services, (i) Trader will post next to selected listings of Customer’s inventory on its websites a toll-free phone number with a local area code, and (ii) visitors to Trader’s marketplace websites that are interested in such inventory may text the posted phone number to receive additional information about the inventory. The text will be routed to a separate phone number provided by Customer, and Customer and the interested end user are then able to exchange text messages discussing the inventory, with the end user only seeing the local area code phone number that is posted on Trader’s website next to the Customer’s listing. Trader provides Customer with the end user’s phone number only for purposes of allowing Customer to text the end user about the applicable inventory with respect to which the end user initially inquired with Customer.  In addition to and not in limitation of its other obligations hereunder, Customer will be responsible for ensuring compliance with the Telephone Consumer Protection Act of 1991 and the Telemarketing Sales Rule in connection with its use of the Texting Services hereunder, including but not limited to circumstances where Customer contacts the end user at the phone number provided by Trader beyond responding to the initial inquiry.
        10. Trader 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 social media management and data distribution (collectively, “Third-Party Products”). If (but only if) any Third Party 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 does not warrant or support any Third Party Products and hereby expressly disclaims any representations or warranties of any type or nature whatsoever with respect to any Third Party 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 Third Party Products (and not to Trader) for maintenance and support, including but not limited to resolution of system errors, bugs, patches and fixes, and (B) Customerʼs sole and exclusive rights and remedies with respect to any Third Party 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.
    2. FEES
      1. For each Ordered Product/Service, Customer shall pay Trader 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” and/or set-up fees and costs and/or “recurring fees” (collectively, “Fees”).
      2. Except to the extent that any such Fees are payable in advance, Trader will invoice Customer for all Fees on a periodic basis (which will be monthly in most cases).  Unless otherwise indicated on the invoice or agreed by Trader in writing, all invoices are due upon receipt. If any Ordered Products/Services are provided on a bundled basis, Trader will begin invoicing for those Ordered Products/Services when the first of those bundled Ordered Products/Services is deployed/activated for Customer’s benefit.
      3. 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 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 may, without limiting any of its other 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.
      4. In addition to the fees and penalties to which Customer may be subject under Section 2(c) above, if Customer’s Ordered Products/Services include Advertising services that specify a maximum amount of Customer inventory (i.e., units) that may be advertised per month (an “Inventory Advertising Package”), then Trader may be entitled to additional financial compensation if the number of units advertised in any given month exceeds the units permitted under Customer’s applicable Inventory Advertising Package.  Specifically, if such “excess” Advertising occurs, (i) then Trader may charge Customer a penalty equal to twenty dollars ($20) per unit advertised in such month in excess of the units permitted under such Inventory Advertising Package without any notice to or consent required by Customer, or (ii) if Customer has exceeded the units permitted in its Inventory Advertising Package for more than seven (7) days in a given month, then Trader may elevate Customer to the “next-level” Inventory Advertising Package and begin charging Customer for such new, enhanced Inventory Advertising Package without any notice to or consent required by Customer.
      5. 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), regardless of when they were incurred and/or whether or not they are included on any invoice.
      6. Trader may from time to time modify any monthly Fees payable under this Agreement by giving Customer at least one monthʼs prior written notice. h 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 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 Traderʼs initial notice.
    3. SYSTEMS
      1. Customer acknowledges and agrees that (i) in order to transact business using the Ordered Products/Services, certain capabilities are required of Customerʼs 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 shall not be responsible or liable if for any reason Customerʼs telecommunications and computing equipment is incompatible with or otherwise insufficient for Customer to utilize any applicable Ordered Products/Services.
      2. Customer further acknowledges and agrees that (i) Trader, in its discretion, may collect, track, analyze and/or create information and reports (collectively, “Results Reports”), and use such Results Reports in the manner authorized in this Agreement, related to each of (A) activities and/or results obtained in connection with Customerʼs use of the Ordered Products/Services, including, without limitation, analytics data, measurement data, and other data regarding the use and/or effectiveness of any Advertising, Customer Websites, Digital Retail Services, Lead Enrichment Services, Data Services, Texting Services or other Ordered Products/Services (collectively, “Analytics Data”), (B) consumer or purchaser sales leads generated from Sales Listings (defined below) on Traderʼs marketplace websites or Customer Websites in connection with the provision of the Ordered Products/Services, including, without limitation, all information about the prospective consumer or purchaser received with the lead, including their internet protocol address, geolocation, website browsing and search history, name, email address, phone number and other information as the prospective consumer or purchaser voluntarily provides (collectively, “Lead Data”) and (C) Listings Data and Customer Content (each defined below); and (ii) in furtherance thereof, and without limitation of its rights in connection with the provision of Lead Enrichment Services, Trader may install certain tracking pixels or other similar tools on Traderʼs websites, the Customer Websites and the Customer Content included therein (including photos) and use those pixels and tools to collect information relating to such use of the applicable Ordered Products/Services and/or any Analytics Data, Lead Data, Listings Data or Customer Content.
    4. COMPLIANCE
      1. Customer represents, warrants and covenants that it is currently in compliance, and shall continue to comply, with all federal, state and local laws, rules, regulations and ordinances applicable to this Agreement and its use of the Ordered Products/Services, including in each case to the extent applicable, but not necessarily limited to, the requirements of the Gramm Leach Bliley Act (15 U.S.C. §§ 6801 et seq.), the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 USC §§ 6101 et seq.), the Telephone Consumer Protection Act of 1991 (47 USC § 227), the Telemarketing Sales Rule (16 CFR Part 310), the CAN-SPAM Act (15 U.S.C. § 7701 et seq.), and the California Consumer Privacy Act (Cal. Civ. Code. § 1798.100 et. seq.) and other similar state privacy laws currently in effect or hereafter enacted, in each case as amended from time to time and including the accompanying federal or state regulations related thereto, and any other applicable federal or state requirements regarding use of the Ordered Products/Services (collectively, “Applicable Laws”). Customer further warrants and covenants that it shall comply with all policies and procedures in respect of the use of the Ordered Products/Services that Trader may provide to Customer from time to time, including, without limitation, policies and procedures regarding (i) end user utilization of any Ordered Product/Service and (ii) language that Trader may request Customer to include in its website privacy policy and customer order forms. Notwithstanding the foregoing, Customer expressly acknowledges and agrees that any website privacy policy template provided with respect to a Customer Website is provided for illustration only, and Customer agrees that it will consult with its own legal counsel in creating a privacy policy that complies with all Applicable  Laws, including, without limitation, the California Consumer Privacy Act and other similar state privacy laws currently in effect or hereafter enacted.
      2. Customer acknowledges and agrees that, as between Customer and Trader, 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 marketplace 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 Proprietary Materials, is collectively the “Customer Content”). Without limiting the foregoing, Customer represents and warrants to Trader 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 and have been obtained (for the benefit of Customer and Trader) 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 of Customer Content continues hereunder. Customer acknowledges and agrees that Trader 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.
      3. Customer acknowledges and agrees that, as between Customer and Trader, Customer is solely responsible for its access, use, storage and disclosure of Lead Data and any other personal information in compliance with all Applicable Laws. Customer acknowledges and agrees that Trader has not undertaken, and will not undertake, any obligation to ensure that the Lead Data provided to Customer can be used by Customer without violating the Telephone Consumer Protection Act of 1991 (47 USC § 227) and the Telemarketing Sales Rule (16 CFR Part 310), or any other Applicable Laws, in each case as amended from time to time and including the accompanying federal regulations related thereto.
      4. Customer shall implement and maintain commercially customary, industry-standard, technical, physical and organizational measures to ensure the security, confidentiality and integrity of Lead Data and any other personal information consistent with the requirements of all Applicable Laws.
    5. PROPRIETARY RIGHTS; LICENSE; RESTRICTIONS
      1. As between the parties, Trader shall own all right, title and interest in and to the following (the “Trader Proprietary Materials”): (i) the Ordered Products/Services, whether owned by Trader or provided through a contract or license with a third party; (ii) all Intellectual Property Rights (defined below) in the Ordered Products/Services and all software, technology, materials, documentation and Brand Features (defined below) that relate to, or are furnished in connection with, the Ordered Products/Services, including, without limitation, all Intellectual Property Rights in any software product and/or application; (iii) the style and design of any Customer Website; (iv) all text, audio, photo, video or other creative works, whether in print or electronic form, developed by Trader for any Customer Website or Sales Listing (defined below); (v) all Analytics Data, Lead Data and Results Reports and the content therein; and (vi) all derivative works and enhancements to any of the foregoing. Customer shall not acquire any right, title or interest in the Trader Proprietary Materials, except for the limited use rights expressly granted under this Agreement, and Customer shall not take any action to impair, limit or interfere in any manner with Traderʼs ownership or rights with respect to any Trader Proprietary Materials. Any rights not expressly granted herein are deemed withheld. Moreover, except as expressly permitted in this Agreement, Customer may not use, reproduce, transfer, share, sublicense, make available, communicate or transmit any Trader Proprietary Materials in any form or by any means without the prior written consent of Trader, and, without limiting the foregoing, Customer is expressly prohibited from reselling, renting, loaning or otherwise sharing any Trader 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 of or from any Ordered Products/Services or any other Trader Proprietary Materials.  Customer acknowledges and agrees that nothing herein shall be deemed or construed to limit in any manner Traderʼs use of the Trader Proprietary Materials.
      2. As between the parties, Customer shall own all right, title and interest in and to the Customer Content, all specifications and inventory data relating to any Sales Listing that Customer collects and submits to any Trader marketplace website or Customer Website (collectively, “Listings Data”), together with all Intellectual Property Rights therein (collectively, the “Customer Proprietary Materials”). Notwithstanding Customer’s ownership rights in the Customer Proprietary Materials, Customer acknowledge and agrees that Trader shall have the right, and hereby grants to Trader a non-exclusive, worldwide, irrevocable, perpetual, royalty-free right and license (with rights to sublicense), to reproduce, use, prepare derivative works from, display and distribute the Customer Proprietary Materials, including but not limited to the Listings Data and the inventory data contained therein, (i) as may be necessary or appropriate for Trader to provide the Ordered Products/Services (without limiting the foregoing, Trader may share the Customer Proprietary Materials with its affiliates and applicable third-party vendors to the extent Trader deems necessary or appropriate to provide the Ordered Products/Services), and (ii) unless Customer specifically objects by providing Trader with written notice of its objection, to the OEM(s) associated with Customer and its Listing Data for any and all lawful purposes, including but not limited to regulation of any such OEM’s MSRP requirements and policies.
      3. 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) associated with any Customer Website registered by or on behalf of Customer, and Customer shall be solely responsible for any applicable domain name registration fees (Trader may host domain name(s) on behalf of Customer, but shall have no ownership rights or responsibilities with respect thereto); (ii) Trader shall have no responsibility for Customerʼs failure to renew or maintain in good status Customerʼs domain name(s); and (iii) Customer shall not be entitled to any credit against its Fees payable to Trader if any Customer Website is unavailable due to any failure to maintain domain name(s) in good standing.
      4. In addition to Trader’s other rights set forth in this Agreement, Customer agrees that Trader may use, prepare derivative works from, reproduce, modify, sublicense, transfer, sell, and distribute any Analytics Data, Listings Data, Lead Data and/or Results Reports for any lawful purposes, including, without limitation, in connection with (i) Traderʼs internal creation, development or improvement of any products and services, or (ii) Traderʼs providing or marketing of any products and services, including analytic reports or measurements of the effectiveness of Trader products and services, to third parties. In addition, Customer further hereby agrees that Trader may, and hereby grants Trader the non-exclusive, worldwide, irrevocable, perpetual, royalty-free right and license (with rights to sublicense) to, reproduce, use, prepare derivative works from, display and distribute any Customer Content and Listings Data for any purpose described in the preceding sentence and/or include any such Customer Content or Listings Data in any Results Report, in each case subject to all Applicable Laws related to the sharing, disclosure and distribution of such data, including Applicable Laws limiting or restricting any such sharing, disclosure and distribution thereof. 
      5. Customer further agrees that, notwithstanding anything to the contrary herein, Trader may, and Customer expressly grants Trader the right to, disclose and provide to its affiliates, representatives and applicable OEM partners, any Lead Data, including the disposition status thereof, with respect to any consumer or purchaser lead that is provided or sold to Customer by such OEM, Trader or any such Trader affiliates or representatives.
      6. Trader shall have a royalty-free, worldwide, transferable, irrevocable, perpetual license (with rights to sublicense) to use or incorporate into the Ordered Products/Services any suggestions, recommendations, enhancement requests or other feedback provided by Customer relating to the Ordered Products/Services.
      7. During the Contract Period and for a period of six (6) months thereafter, Customer shall not induce or attempt to induce any customer, client or supplier/vendor of Trader to cease doing business with Trader.
      8. As used herein, (i) “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; (ii) “Brand Features” shall mean the trade names, trademarks, service marks, logos and other distinctive brand features of a party, as developed and/or utilized by such party from time to time; and (iii) “Sales Listing” shall mean a classified listing relating to Customerʼs inventory.
    6. CONFIDENTIALITY
      1. During the Contract Period and for a period of three (3) years thereafter, each party (the “Receiving Party”) shall keep confidential and not disclose (except as permitted herein) the terms of this Agreement and all confidential or proprietary information, technology, materials and know-how of the other party (the “Disclosing 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 should reasonably be understood, based on the nature of the information and/or the circumstances surrounding its disclosure, to be confidential and/or proprietary (“Confidential Information”). (Without limiting the generality of the foregoing, Customer expressly acknowledges and agrees that Traderʼs Confidential Information includes the Trader 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 and any uses authorized under Section 5, 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 Disclosing 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 Disclosing Party promptly in writing upon learning of any unauthorized use or disclosure of any Confidential Information of the Disclosing Party and will cooperate in good faith to remedy such occurrence to the extent reasonably practicable. 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 before disclosure thereof by the Disclosing Party; (B) was in or entered the public domain other than as a result of any breach of this Agreement by 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 information disclosed by the Disclosing Party hereunder.
      2. Notwithstanding Section 6(a), the Receiving Party may disclose Confidential Information or portions thereof: (i) to its affiliates and its and their respective officers, directors, employees or contractors who (A) need to know such Confidential Information for a purpose described in Section 6(a)(i) above, (B) are informed by the Receiving Party of the confidential nature of the Confidential Information and (C) are subject to confidentiality duties or obligations to the Receiving Party that are no less restrictive than the obligations set forth in this Agreement; (ii) to the extent permitted or contemplated under Section 5; and (iii) to the extent legally required by any applicable law, court order or judicial process, so long as the Receiving Party (A) provides the Disclosing Party with reasonable prior notice of such requirement, (B) discloses only that portion of the Confidential Information that is strictly required by such law, court order or judicial process, and (C) discloses such Confidential Information only to those recipients entitled to receive it under such law, court order or judicial process.
      3. Upon written request of the other party, each Receiving Party shall return to the other or destroy, at the Receiving Partyʼs option, all materials, in any medium, that contain or reveal all or any part of any Confidential Information of the other party. Notwithstanding the foregoing, with respect to Confidential Information provided by the Disclosing Party hereunder, the Receiving Party shall be permitted to retain and not destroy (i) archival copies to the extent such retention is reasonably necessary to comply with applicable laws or to determine or enforce its rights under this Agreement, and (ii) copies that are automatically stored in the ordinary course of business on its or their information technology backup and disaster recovery systems, provided, in each case, that (A) all retained copies shall remain Confidential Information that is subject to the confidentiality and non-use obligations of this Agreement and (B) access to such copies shall be limited to those officers or employees who are responsible for compliance with law, determination or enforcement of rights under this Agreement or maintenance of information technology systems.
    7. DISCLAIMER; LIMITATIONS OF LIABILITY
      1. EACH ORDERED PRODUCT/SERVICE AND ALL OTHER TRADER PROPRIETARY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR EXPRESS WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, IF ANY, TRADER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT/SERVICE OR ANY OTHER TRADER PROPRIETARY MATERIAL, AND TRADER HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE ORDERED PRODUCTS/SERVICES AND ALL OTHER TRADER 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 DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT ANY ORDERED PRODUCTS/SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL FULFILL ANY PARTICULAR NEEDS OR PURPOSES; (ii) CUSTOMER ACKNOWLEDGES THAT THE OPERATION, USE AND 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 SHALL NOT IN ANY EVENT BE LIABLE ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS OR LOSSES; (iii) TO THE EXTENT ANY ORDERED PRODUCTS/SERVICES INCLUDE LOCATION TARGETING FUNCTIONALITY, CUSTOMER ACKNOWLEDGES AND AGREES THAT (x) LOCATION TARGETING IS BASED ON A VARIETY OF SIGNALS, INCLUDING END USERS’ SETTINGS, DEVICES AND BEHAVIOR WHEN USING OR ACCESSING SUCH ORDERED PRODUCTS/SERVICES, AND (y) BECAUSE THESE SIGNALS VARY, WE CANNOT (AND DO NOT) GUARANTY ANY MINIMUM (OR ANY) PARTICULAR ACCURACY WITH RESPECT TO SUCH LOCATION TARGETING; 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.
      2. IN ADDITION TO AND WITHOUT LIMITING ANY OTHER LIMITATION OF LIABILITY HEREUNDER, CUSTOMER ACKNOWLEDGES AND AGREES THAT (i) TRADER 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 OTHER TRADER PROPRIETARY MATERIAL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRADER 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 OTHER TRADER PROPRIETARY MATERIAL, LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED), BUSINESS INTERRUPTION, COST OF RECOVERING SOFTWARE OR DATA OR OTHER SIMILAR COSTS); AND (ii) TRADERʼS TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND IN RESPECT OF ANY ORDERED PRODUCT/SERVICE OR TRADERʼS 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 UNDER THIS AGREEMENT FOR THAT ORDERED PRODUCT/SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS.
    8. INDEMNIFICATION
      1. Customer shall indemnify, defend and hold harmless Trader, its affiliates, and its and their respective officers, directors, employees, agents, successors, representatives and assigns (collectively, the “Indemnified Trader Parties”), from and against any and all claims, proceedings and demands asserted, alleged or brought against any Indemnified Trader Party by any third party (“Claims”), as well as any damages, settlements, judgments, losses, liabilities, costs and expenses (including reasonable attorneysʼ fees) incurred in connection with any such Claim, that arise out of or result from (i) Customerʼs use of any Ordered Products/Services; (ii) any Customer Proprietary Materials, including, without limitation, any Claim arising out of Traderʼs receipt or use of the Customer Proprietary Materials in the manner contemplated by this Agreement or alleging that any Customer Content or Listings Data (A) infringes upon, violates or misappropriates any Intellectual Property Right of such third party, (B) violates any Applicable Law or (C) is inaccurate or misleading; (iii) any breach by Customer of any representations, warranties, covenants or other terms and conditions set forth in this Agreement; or (iv) Customerʼs violation of or failure to comply with any Applicable Law or applicable OEM requirements.
      2. If Trader determines, in its sole discretion, that the use of any Ordered Products/Services or other Trader Proprietary Materials in accordance with this Agreement is, or may be held to be, infringing (or otherwise in violation of the Intellectual Property Rights of any person), then Trader may at its option and expense either (i) use commercially reasonable efforts to procure for Customer the right to continue using the applicable Ordered Product(s)/Service(s) or Trader Proprietary Materials as provided in this Agreement for the remainder of the applicable Contract Period, or (ii) use commercially reasonable efforts to replace or modify the applicable Ordered Product(s)/Service(s) or Trader Proprietary Materials with a version that is non-infringing but that performs substantially similar functions. While pursuing either option, Trader may in its sole discretion suspend the provision of all or any part of the applicable Ordered Product(s)/Service(s) or Trader Proprietary Materials. If neither of the foregoing options is commercially viable in the sole judgment of Trader, then Trader may terminate its continued provision to Customer of the applicable Ordered Product(s)/Service(s) or Trader Proprietary Materials and refund to Customer any Fees pre-paid by Customer with respect thereto.
    9. TERM AND TERMINATION
      1. This Agreement (i) shall commence on the initial “Begin Date” stated in the initial Order Form submitted by Customer and accepted by Trader and (ii) shall remain in effect for the duration of the Contract Period for all Order Forms between Trader and Customer, as such Contract Periods may be extended or renewed in accordance with Section 1(b) hereof, unless and until terminated in accordance with the terms of this Section 9.
      2. Termination.
        1. Unless otherwise agreed by Trader in writing, Customer may not terminate any Order Form (or this Agreement) at any time during the first twelve (12) months of the Contract Period thereof.  After such initial 12-month period, Customer may terminate any Order Form (and this Agreement) at any time on thirty (30) days’ prior written notice to Trader. Trader may terminate this Agreement or any Order Form at any time and for any reason on thirty (30) daysʼ prior written notice of termination to Customer.
        2. In addition to the foregoing termination rights, each party may terminate this Agreement at any time by written notice to the other party if (A) the other party materially breaches this Agreement and the breach remains uncured for a period of thirty (30) days (or, if the breach relates to Customerʼs failure to pay any Fees owed to Trader, then such cure period shall be ten (10) days) after notice of breach from the non-breaching party, (B) the other party suspends operations, (C) a petition for relief under any bankruptcy legislation is filed by the other party, (D) a petition for relief under any bankruptcy legislation is filed against the other party and not dismissed within forty-five (45) days thereafter, (E) the other party makes an assignment for the benefit of creditors, or (F) a receiver is appointed for all or substantially all of the other partyʼs assets. In addition to and not in limitation of the foregoing, Trader may terminate this Agreement (including any and all active Order Forms) immediately upon written notice to Customer if Customer, or any of its employees, agents or other representatives, engages in any conduct that Trader in its reasonable discretion deems offensive, inappropriate or otherwise inconsistent with Traderʼs standards of conduct, including, without limitation, use of abusive, insulting or derogatory language with any Trader personnel.
      3. 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 (and discontinue use of all other Trader Proprietary Materials) and at Trader’s request certify to Trader that it has destroyed all copies of all applicable Trader 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(c), 10 and 11 shall survive any termination or expiration of this Agreement.
    10. GOVERNING LAW; DISPUTE RESOLUTION
      1. The parties hereby expressly (a) agree that their respective rights and obligations shall be determined solely by the terms of this Agreement and (b) 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 (b) 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 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 Customerʼs account is referred to an attorney or collection agency for collection of Fees or other amounts owed hereunder, Customer will pay for all collection fees, costs and expenses incurred by Trader 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.
    11. GENERAL
      1. Authority. Each party represents and warrants to the other that (i) it is duly organized, validly existing and, where applicable, in good standing under the jurisdiction of its organization, (ii) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder, and (iii) upon the acceptance and delivery of this Agreement by Customer (including acceptance and delivery via electronic signature), this Agreement shall constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
      2. Independent Contractors. At all times during the term of this Agreement, Trader and Customer shall be treated, for all purposes, as independent contractors of each other and the execution and delivery of this Agreement is not intended to, nor shall it be construed to be, the formation of a partnership, syndication, association, joint venture or organization of any kind whatsoever between Trader and Customer, and no such entities shall have any fiduciary duty to the other as a partner, co-venture, joint owner or the like.
      3. Promotional Matters. Trader 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. Customer hereby grants Trader the limited, revocable and royalty-free right to use Customerʼs name, trademarks, service marks and logos (i) in advertising targeted to all or any portion of Customerʼs 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.
      4. 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 to be sent care of, (i) for routine business matters, the sales rep or client service rep assigned to Customer by Trader; or (ii) for material business or legal matters, Vice President/General Manager of the applicable Trader business line, with an electronic copy to [email protected] 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.
      5. 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, epidemics or pandemics, or failures of equipment, Internet, telecommunications facilities or third party software programs.
      6. Severability; Waiver. If any term or condition of this Agreement 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.
      7. Remedies. Except as otherwise expressly set forth in this Agreement, a partyʼs 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 partyʼs exercise of any other remedy. Each party acknowledges that any unauthorized use or disclosure of the other partyʼs Confidential Information would cause the other party irreparable harm that would not be adequately compensated by monetary damages; accordingly, in addition to any other remedies available to it at law or in equity, each party will be entitled to seek injunctive or other equitable relief to prevent any actual or threatened unauthorized use or disclosure of its Confidential Information without any requirement to prove the inadequacy of monetary damages or post any bond or other security.
      8. Amendment. Trader may amend, update and otherwise make changes to any portion of this Agreement from time to time and for any reason, including without limitation to reflect updates to Ordered Products/Services or changes in law.  Except as otherwise expressly provided in this Agreement (such as, by way of example, in the case of Fee increases by Trader), if Trader amends, updates or makes a change to this Agreement, it will be effective upon posting of the amended, updated or modified terms at https://www.traderinteractive.com/advertiser-agreement/ (or any successor website).  Customer is responsible for periodically reviewing this Agreement (and such website) for updates and amendments. By continuing to use Ordered Products/Services subsequent to the posting of any updates or amendments, Customer will be deemed to have agreed to and accepted such updates and amendments in their entirety. If Customer does not agree to any update or amendment to this Agreement, then as its sole remedy and recourse Customer must discontinue using the Ordered Products/Services. Trader’s customer service representatives are not authorized to modify any provision of this Agreement, either verbally or in writing.  
      9. Assignment; Continuing Obligation. This Agreement is and shall be freely assignable by Trader, 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. 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) to the extent (if at all) permitted by Applicable Law, any and all obligations (including but not limited to payment of all Fees) incurred by any such new “Customer” subsequent to such change.
      10. 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, except that each Indemnified Trader Party is a third-party beneficiary of Section 8(a) and shall be permitted to enforce its rights thereunder.
      11. Marketing Communications. By entering into this Agreement, Customer consents to receive marketing messages, including emails, from Trader. Customer may unsubscribe from such marketing messages from Trader at any time by completing and submitting to Trader an Email Opt-Out Form available upon request from Trader including entering on such form the applicable Customer email address and the name of the applicable Trader business submitting the marketing messages.
      12. Entire Agreement. This Agreement, including each applicable Order Form and these Terms and 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. (Without limiting the generality of the foregoing, this Agreement supersedes in their entirety all previous Advertising Agreements / Terms and Conditions, including any and all amendments thereto, governing or otherwise related to the Ordered Products/Services offered and provided by Trader.) Customer further agrees that in deciding to become a party to this Agreement, Customer has not relied upon any representations or warranties, written or oral, that are not expressly set forth in writing in this Agreement.

    [END OF TERMS AND CONDITIONS – UPDATED OCTOBER 2022]