This Agreement is made and entered by and between CritiqueMedia. (“Company”), a limited liability corporation, with its principal place of business in South Plainfield, New Jersey and Client (collectively, “the Parties”) effective as of August 21, 2013.
Client hereby appoints Company to act as its agent for purposes of review management services as set forth more fully in our description of services and any addenda to this Agreement. All information provided is for the benefit of Client only and may not be used for any other purpose.
All services are provided on a 6 or 12month basis based on Client’s date of sign-up and payment is due at the beginning of the monthly period. In addition, Client agrees to pay first and last month payment then in effect at the time of sign-up. Customer will pay the invoice in full within thirty (30) days of receipt. If full payment is not made, a charge equal to one and one-half percent (1.5%) will be added to the balance due, not to exceed the maximum legal limit permitted by law. If Customer becomes thirty (30) or more days past due, the Services shall be suspended until all past due charges are paid, and Customer shall be in default of this Agreement. If it becomes necessary for Provider to enforce this Agreement through an attorney, collection agency, or directly through small claims court, Customer shall pay all attorney’s fees, agency fees, court costs, and other collections costs, including without limitation post-judgment costs for legal services at trial and appellate levels. Delinquency may affect Customer’s credit rating.
Client represents and warrants to Company that (i) it is retaining Company on its own accord to monitor social media traffic with respect to its own brands and is not repackaging or otherwise repurposing any content provided by Company hereunder; and (ii) Company’s services are provided on an “as is” and “as available basis”. Company makes no warranty as to the accuracy or completeness of the data provided to Client hereunder.
Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; and (ii) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE, SOFTWARE, DATA AND INFORMATION ACCESSIBLE THROUGH THE USE OF THE SERVICE ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. CRITIQUEMEDIA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Use of the Site and/or Service and its content, data, information and documentation is at your sole risk. You acknowledge that the Service, technology and techniques for monitoring, collecting and sharing reviews may differ from those employed by third parties. You acknowledge that it is your responsibility to collect real and valid reviews from your customers/client. You acknowledge that is your responsibility to assess the impact of any promotional activities associated with review collection and the use of those reviews. You acknowledge that it is your responsibility to provide appropriate disclosures with any activities associated with review collection and sharing. You also acknowledge that sharing reviews includes risks of fraud and abuse that could undermine the benefits of the Service. Company expressly disclaims any representation or warranty that the Service is suitable for use to determine or verify the accuracy of third party data. Therefore, you agree not to use or rely upon the Service to determine the accuracy or inaccuracy of third party data. Review sites often times employ certain policies intended to discourage certain review posting activities (the “Policies”). A Site’s single or repeated violation of these Policies can result in certain disciplinary actions, up to and including delisting from the review sites (“Penalties”). Additionally, Policies change from time to time, which could result in certain Penalties with or without prior notice from the review sites. YOU acknowledge that by entering into this Agreement and contracting with Company for the provision of sharing of reviews, YOUR site listing may be subject to Penalties, up to and including delisting from the Search Engines due to the publication activities hereunder. Such Penalties may result in a substantial reduction in YOUR Site’s Traffic and Placement and are not under the Company’s direct control. Changes to the review site Content, Algorithms and Policies are not always provided with notice or adequate time for Company to adjust the Review Monitoring, Capturing and Publication Services in order to prevent a temporary or permanent reduction in service. Additionally, competitive actions of third parties rapidly affect the content of reviews for your listings. These variables could lead to unpredictable fluctuations in YOUR review sites, which could affect your listing on an ongoing basis.
EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL CRITIQUEMEDIA, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS OR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SERVICE AND/OR ITS CONTENTS BE LIABLE TO YOU FOR ANY PERSONAL INJURY OR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF DATA OR PROPERTY) ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE USE, RELIANCE ON OR TRANSFER OF ANY PROPERTY, SERVICE, INFORMATION OR DATA PROVIDED OR MADE ACCESSIBLE UNDER THIS AGREEMENT, EVEN IF CRITIQUEMEDIA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH INJURY OR DAMAGES.
You agree to indemnify and hold harmless Company, its officers, directors, employees, representatives, successors and assigns from and against any claims, actions, demands, liabilities, settlements and damages including without limitation, reasonable attorneys’ fees and costs, arising from or related to your violation of this Agreement.
If you are located outside the jurisdiction of the U.S., then the provisions of this Section shall apply to you: (i) this Agreement and all related documentation shall be in the English language (LES PARTIES AUX PRESENTES CONFIRMENT LEUR VOLONTE QUE CETTE CONVENTION DE MEME QUE TOUS LES DOCUMENTS Y COMPRIS TOUT AVIS QUI S’Y RATTACHE, SOIENT REDIGES EN LANGUE ANGLAISE); and (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Service, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this Agreement and license valid and enforceable.
You agree to comply with all export and import laws and restrictions and regulations of the United States and foreign countries, and not to export, re-export or import the Service or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary authorizations. Neither the Service nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) to Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria or any other country subject to a U.S. trade sanctions or embargo, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to any named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, and/or the U.S. Department of Commerce, Bureau of Industry and Security Denied Persons List or Entity List. By using the Service, Client agrees to the foregoing and represents and warrants that it is not located within an embargoed jurisdiction and is otherwise in compliance with these conditions.
We respect the privacy of our users and members. By registering and accessing or using the Site and Service, you consent to the transfer and processing of your personal information in the United States and agree to our use of your personal information and email address to contact you regarding your use of the Site and the Service, and their features and services.
CritiqueMedia Inc. reserves the right to change the terms and conditions of this Agreement without prior notice to you. You are responsible for reviewing the terms and conditions of this Agreement each time you access and use the Service. Your continued use of the Service constitutes your agreement to the then current terms and conditions.
The Site may contain links to other web sites (“Third Party Sites”) and content or materials originating from third parties (“Third Party Content”). Such links (“Third Party Links”) are provided as a convenience to our users of the Site only and do not imply approval or endorsement or any sponsorship or affiliation. Your use of Third Party Links, Third Party Sites and Third Party Content is entirely at your own risk. CritiqueMedia is not responsible for Third Party Links, Third Party Sites or Third Party Content. This agreement no longer applies after you leave our Site.
In addition, CritiqueMedia may run third party advertisements and promotions on the Site for third party services and/or products. If you enter into correspondence or engage in commercial transactions with third parties in connection with your use of the Site, such activity is solely between you and the applicable third party. Any terms, conditions, warranties or representations related to such activity are solely between you and the relevant third party. CritiqueMedia shall have no liability, obligation or responsibility for the result of any third party activity or the result of third-party advertisements on our Site. You acknowledge and agree that CritiqueMedia is not responsible or liable for any action or inaction of any third party to a transaction, including, but not limited, any third party’s failure to perform, to pay any amounts due, or to deliver any merchandise or services as promised, or for any claim or liability arising from or related to any third-party transaction.
During the term of this Agreement and in the course of the parties performance hereunder, the parties may receive and otherwise be exposed to certain confidential and proprietary information relating to the parties business practices, strategies, and technologies (collectively referred to hereafter as “Confidential Information”). Accordingly, except as otherwise provided herein and as is necessary for performance under this Agreement, the parties and their designated agents, employees and contractors agree not to reproduce any of the Confidential Information without the other party’s prior written consent; the parties will not use the information except in the performance of the Agreement, and parties will not divulge all or any part of the Confidential Information in any form to any third party or otherwise materially disparage the other party and/or its officers or employees, either during or after the term of this Agreement. These restrictions shall not apply to information that each party can document is: (i) already in the possession of or known by the Receiving Party, (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party, (iii) lawfully received from a third party without restriction on use or disclosure if, to the Receiving Party’s knowledge, such third party had the legal right to disclose such information, (iv) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, (v) pre-approved in writing by the other party for disclosure, or (vi) disclosed as required by law, governmental agency or rule, or court order, so long as the party required to disclose the information provides the other party with timely prior notice of such requirement where permitted.
The parties recognize that a breach of the obligations imposed herein would cause irreparable injury to the Non-Breaching Party; therefore, in the event any party breaches or threatens to breach the provisions of this section, the other party, in addition to any other remedies it may have, shall be entitled to seek preliminary and permanent injunctive relief without the necessity of posting a bond.
You agree not to directly or indirectly: (i) redistribute, encumber, sell, rent, lease, lend, sub-lease, sublicense or otherwise transfer the Service, or the right to access and use the Service, to any third party without the express written consent of CritiqueMedia; (ii) remove or obscure CritiqueMedia’s copyright, trademark and other proprietary rights notices, legends, symbols or labels; (iii) alter, modify, decompile, disassemble, create any derivative works of the Service, including customization, translation or localization, or reverse engineer or otherwise attempt to derive the source code for the Service (except as expressly permitted by local law); (iv) utilize the Service in connection with any service bureau or time-sharing system or to provide processing services for any third party; (v) allow any other person to access and use this Service via a LAN, WAN or other network of computers; (vi) use the Service or its aggregated data for the development of or in connection with a Service application or service that has the same or substantially similar features and/or function to the Service; and (vii) use the Service for any unlawful purpose.
The Site and the Service, its software and its databases and compilations of aggregated data, all copies thereof, and associated trademarks are protected under United States Copyright Law, International Treaty, trade secret, trademark and other applicable laws. You agree not to copy, reproduce, publicly distribute, transmit or display the Site and/or S, or all or substantially all of the content of any database without the express written consent of CritiqueMedia.
a. For registered users without a prepaid subscription agreement, CritiqueMedia Inc. reserves the right to suspend and/or terminate access and use of the Site, the Service and this Agreement, in whole or in part, at any time with or without notice.
b. For users with a prepaid subscription, CritiqueMedia may immediately suspend your access and use of the Site and/or the Service upon discovery of a material breach by you (or your employer, if applicable) and terminate your access and use of the Site, the Service and this Agreement concurrently with the termination of the subscription agreement (in accordance with its terms). The provisions of Sections Copyright, Ownership, Disclaimer of Warranties, Limitation of Liability, Indemnity, and General shall survive the termination of this Agreement.
The Parties agree that this Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which collectively shall constitute one and the same instrument. For purposes hereof, a facsimile or PDF of the executed copy of this Agreement shall be deemed to be an original.