THIS LISTING AND
ADVERTISING AGREEMENT (hereinafter referred to as the "Agreement") is
made and entered into on the date of payment (hereinafter referred to as the
"Effective Date”) by and between Nurture, LLC
(herein after referred to
as the "Website Owner") and the Business
(hereinafter referred to as
In consideration of the promises and mutual covenants contained in this Agreement, the parties agree as follows:
This Agreement shall commence on date of payment (hereinafter referred to as "Start Date”) and shall expire 365 days from Start Date.
2. COMPENSATION AND REFUND POLICY
The Client shall pay the Website Owner an amount as listed for the service level chosen by the Client as consideration for the publication of the listing and if applicable, the advertisement(s) on the website.
All fees and payments are due and payable upon the execution of this Agreement. For recurring billing, late payments due to declined credit cards are subject to interest accrued at the rate of 1.5% per month, or up to the maximum amount allowed by law, whichever is greater. Client listings and/or advertising may be taken off the site by the Website Owner in the event of non-payment, late payment, or decline of credit card. Website Owner may, at its discretion receive full payment for the term of the listing agreement before reinstating the listing and/or advertising. All listings and advertising are for the full term stated, and no refunds will be given to the Client for cancellation of listings or advertising.
3. LISTING DISPLAY AND SERVICES
Website Owner agrees to publish the Listing and associated content and advertising for a period of 365 days starting from the Start Date.
If Client desires to take the listing off the website prior to the end of 365 period, the request must be submitted in writing. No refund will be made for such early withdrawal of advertising.
All advertisements for applicable listing packages must be submitted digitally. Website owner will work with Client to produce draft of advertising art for Client and will make one revision at request of Client. All other revisions will be billed at $40/hour. Website Owner will not be held responsible for the quality of any portion of the advertisement that does not meet the established mechanical criteria.
Client shall assume full responsibility and liability for the content of its advertisement. Website Owner is not responsible for, and in no way warrants, guarantees, or ratifies, the representations made or implied in Client’s content. If Client desires to modify its content, it shall provide a written request to Website Owner specifying in detail the modification desired. Website Owner shall, within a reasonable time, effectuate the modifications to the content. However, modifications may only be made once per six month period of the listing term, unless Client provides Web-ready art for the ad.
5. CONTENT RESTRICTIONS AND RIGHT TO REJECT AND CANCEL
Listings and advertisements shall not contain or contain links to, content promoting the use of illegal substances; nudity, sex, pornography, or adult-oriented content; explicative or inappropriate language; content promoting illegal activity, racism, hate, "spam", mail fraud, pyramid schemes, or investment opportunities or advice which is not permitted under law; content that is libelous, defamatory, contrary to public policy or otherwise unlawful or any other content deemed inappropriate by Website Owner in its sole discretion. Use of any such inappropriate content by the Client will result in the suspension, termination and removal of the listing and/or advertisement or any other action deemed necessary in Website Owner's sole discretion.
Website Owner reserves the right to review and approve the suitability of the listings and advertisements submitted. Website Owner may reject or cancel any listing and/or advertisement for any reason which Website Owner believes in good-faith to be detrimental to Website Owner, its agents, employees and/or assigns, including but not limited to, the following: Advertisements which fail to conform to applicable laws and regulations, Website Owner's policies, or the public interest. If Website Owner so rejects Client's listing or advertisement or terminates its display, then this Agreement shall be terminated, and Website Owner will return any fess to the Client at a prorated rate.
6. INTELLECTUAL PROPERTY RIGHTS
Client grants Website Owner a nonexclusive license to set up and display the Client’s listing information and/or advertisement (including any trademarks and service marks shown) during the term of this Agreement.
7. LIMITATION OF LIABILITY
The Website Owner and Client hereby agree that Website Owner exercises no control and has no responsibility whatsoever over the content or quality of any listing or advertising material; use of Website Owner's service is at Client's own risk. Except as expressly provided herein, the services are provided "as is" and "as available" and Website Owner disclaims all warranties of any kind, whether express or implied, for the advertisement services, including but not limited to the implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. Website Owner shall not be liable for any contents of the Advertisement. Website Owner makes no warranty or guarantee of any kind for sale of Client’s products or services advertised on the Website Owner’s website.
Without limiting the foregoing, Website Owner's entire liability under, for breach of, arising under, or related to this Agreement or the services to be provided hereunder (whether in tort, Agreement or any other theory), and Clients sole remedy is for Website Owner if possible, to provide the services agreed hereunder or refund any amounts prepaid by Client related to the services giving rise to such liability. In no event shall Website Owner be liable for direct, exemplary, special, incidental consequential damages, or costs, including but not limited to, any lost profits or revenues, loss of use or good will, or any third party claims.
8. CLIENT’S WARRANTIES
The Client hereby warrants that:
A. The advertisement is truthful and will not violate any foreign, federal, state, or local law or regulation;
B. The advertisement will not infringe or misappropriate any copyright, trademark, patent, trade secrets, publicity, or privacy rights of any person or third-party in any jurisdiction;
C. The advertisement does not contain any material which is unlawful, harmful, abusive, hateful, obscene, threatening, or defamatory.
Client agrees to defend, indemnify, and hold harmless Website Owner, its officers, directors, sub-licensees, employees, members and agents, from and against all losses, costs, damages and expenses, including reasonable legal and accounting fees, arising from any claims, actions, or demands, for infringement of the rights of third parties based upon publication of the Client’s advertisement, including but not limited to claims or lawsuits arising from defamation, copyright or trademark infringement, misappropriation, rights of privacy or publicity or from any and all similar claims. Website Owner shall provide notice to Client promptly of any such claim, suit, or proceedings and shall assist Client, at Client’s expense, in defending any such claim, suit, or proceeding.
Website Owner may terminate this Agreement immediately at any time and for any reason, with or without cause. Client may terminate this Agreement prior to the end of the duration of Advertisement, by delivering fifteen (15) days’ written notice to Website Owner.
11.GOVERNING LAW & JURISDICTION
All issues relating to this Advertising will be governed by the laws of the state of Texas. Any action relating to the Advertising must be brought in the state of Texas, and the parties hereby consent to the jurisdiction of such courts. The prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceedings, in addition to any other relief to which it may be entitled.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes any prior agreement, terms and conditions, understanding, representations, discussions, negotiations, and agreements, whether written or oral.
13. MODIFICATIONS & WAIVERS
The Agreement may not be modified except by written instrument signed by both parties. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
Client may not assign its rights or obligations arising under this Agreement without Website Owner’s prior written consent. Website Owner may assign its right and obligations under this Agreement.
If any provision of this Agreement is held by any court to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect.
All notices, requests, and other communications required to be given under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. Any such notice will be considered to have been given when received, or if mailed, five business days after it was mailed, as evidenced by the postmark. The mailing address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this Section.