Luxury Presence – Terms of Service
BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE (this “Agreement”) OR OTHERWISE USING THE LUXURY PRESENCE SERVICES, THE ENTITY IDENTIFIED AS THE CUSTOMER IN THE APPLICABLE SERIVCE ORDER (“CUSTOMER”) AGREES TO THESE TERMS AND CONDITIONS WITH LUXURY PRESENCE, INC. (“LUXURY PRESENCE”). YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT.
1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Content” means content and other material supplied or made available to Luxury Presence by Customer through the use of or access to the Luxury Presence Services.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Luxury Presence for the Luxury Presence Services.
“Luxury Presence Services” means the website development, maintenance, hosting and other related services for the purpose of establishing and/or improving Customer’s online visibility and for showcasing Customer’s listings.
“Order Form” means an order form, quote or other similar document that sets forth the specific Luxury Presence Services and pricing therefor, and that references this Agreement and is mutually executed by the parties.
2. Luxury Presence Services
2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Luxury Presence will make the Luxury Presence Services available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Luxury Presence Services to operate and display the website set forth in the Order Form (“Customer Website”).
2.2 Customer Limitations. The rights granted herein are subject to the following restrictions (the “License Restrictions”):
(a) Customer will not reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Luxury Presence Services;
(b) Except for Customer Website that use the Luxury Presence Services, Customer will not transfer, distribute, resell, lease, license, or assign Luxury Presence Services or otherwise offer the Luxury Presence Services on a standalone basis;
(c) Customer will not use the Luxury Presence Services to violate any applicable local, state, national or international law, or any regulations having the force of law; impersonate any person or entity, or falsely state or otherwise misrepresent its affiliation with a person or entity; solicit personal information from anyone under the age of 18; or further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
(d) Customer will not otherwise use the Luxury Presence Services outside the scope expressly permitted hereunder and in the applicable Order Form; and
(e) Customer will ensure that its users do not use temporary email addresses or share user accounts among multiple individuals, and Customer will permit Luxury Presence to terminate the accounts of any users that violate this Agreement.
2.3 Customer Responsibilities. Customer will (a) be responsible for all use of the Luxury Presence Services and Documentation under its account (whether or not authorized), (b) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and Customer Website(s), (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Luxury Presence Services and Documentation and notify Luxury Presence promptly of any such unauthorized access or use and (d) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Luxury Presence Services, including as set forth in the Documentation.
3.1 Fees. Customer will pay Luxury Presence the fees set forth in the Order Form, which will include a recurring subscription fee and potentially other fees depending on the Luxury Presence Services set forth therein.
3.2 Payment. Except as otherwise specified herein or in any applicable Order Form (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable, except as expressly set forth herein. Unpaid amounts are subject to a late fee of $50 if an invoice is unpaid for more than fourteen (14) days and $150 if the invoice is unpaid for more than thirty (30) days, plus all expenses of collection and may result in immediate termination of Luxury Presence Services.
3.3 Payment Method. Except as otherwise specified in any applicable Order Form, Customer expressly authorizes Luxury Presence to automatically charge its payment method on file (e.g. credit card, debit card or e-check) for each executed Order Form (including any future agreed upon charges or fees). Customer represents and warrants to Luxury Presence that it is authorized to use the payment instrument. Customer will promptly update its account information with any changes (for example, a change in to billing address or credit card expiration date) that may occur.
3.4 Net of Taxes. All applicable use, sales and other similar taxes and government charges will be payable by Customer other than U.S. taxes based on Luxury Presence’s net income. Customer will not withhold any taxes from any amounts due to Luxury Presence.
4. Proprietary Rights and Confidentiality
4.1 Luxury Presence’s Ownership Rights. As between the parties, Luxury Presence exclusively owns all right, title and interest in and to the Luxury Presence Services. Except for the express rights granted hereunder, Luxury Presence reserves all rights, title and interests in and to the Luxury Presence Services and Luxury Presence’s Confidential Information.
4.2 Luxury Presence Marks. Luxury Presence hereby grants Customer a non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of Luxury Presence (each, a “Luxury Presence Mark”) for the purpose of promoting or advertising that Customer uses the Luxury Presence Services. In using Luxury Presence Marks, Customer may not: (a) display a Luxury Presence Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Luxury Presence; (b) use Luxury Presence Marks to disparage Luxury Presence or its products or services; or (c) display a Luxury Presence Mark on a site that violates any law or regulation. Furthermore, Luxury Presence may modify any Luxury Presence Marks at any time, and upon notice, Customer will use only the updated Luxury Presence Marks. Other than as permitted in this Section, Customer may not use any Luxury Presence Marks without prior written consent. All use of the Luxury Presence Marks will be subject to any trademark usage guidelines that Luxury Presence may provide from time to time, and Customer will conduct its business in a professional manner that reflects favorably on the goodwill and reputation of Luxury Presence.
4.3 Feedback. Customer may from time to time provide Luxury Presence suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Luxury Presence Services. Luxury Presence will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Luxury Presence will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.4 Customer Content. As between the parties, the Customer Content and Customer Website(s) (excluding the any content, information and materials made available to Customer through the Luxury Presence Services) will be owned by Customer. Customer hereby grants to Luxury Presence a non-exclusive, worldwide license to copy, distribute and use Customer Content only in connection with providing the Luxury Presence Services.
4.5 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
4.6 Aggregated Information. Notwithstanding anything to the contrary, Luxury Presence shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Luxury Presence Services and shall be free (during and after the term hereof) to (i) use such data and other information to develop and improve the Luxury Presence Services and other Luxury Presence offerings, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
5. Warranties and Disclaimers
5.1 Warranties by Luxury Presence. Luxury Presence warrants that it will, consistent with prevailing industry standards, maintain the Luxury Presence Services in a manner which minimizes errors and interruptions in the Luxury Presence Services and perform the Luxury Presence Services in a professional and workmanlike manner.
5.2 Warranties by Customer. Customer warrants that it has the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Content in connection with the Luxury Presence Services as contemplated herein.
5.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
6.1 Indemnity by Luxury Presence. Luxury Presence will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Luxury Presence Services as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Luxury Presence) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Luxury Presence of such Claim, (b) Luxury Presence will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Luxury Presence may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Luxury Presence in connection therewith. If the use of the Luxury Presence Services by Customer has become, or in Luxury Presence’s opinion is likely to become, the subject of any claim of infringement, Luxury Presence may at its option and expense (i) procure for Customer the right to continue using and receiving the Luxury Presence Services as set forth hereunder; (ii) replace or modify the Luxury Presence Services to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees for unearned Luxury Presence Services. Luxury Presence will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Luxury Presence Services by Customer not in accordance with this Agreement; (C) modification of the Luxury Presence Service by any party other than Luxury Presence without Luxury Presence’s express consent; (D) Customer Content or (E) the combination, operation or use of the Luxury Presence Services with other applications, portions of applications, product(s) or services where the Luxury Presence Services would not by themselves be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Luxury Presence’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Customer. Customer will defend Luxury Presence against any Claim made or brought against Luxury Presence by a third party arising out of the Excluded Claims or Customer’s failure to comply with the License Restrictions, and Customer will indemnify Luxury Presence for any damages finally awarded against (or any approved settlement) Luxury Presence in connection with any such Claim; provided that (a) Luxury Presence will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Luxury Presence’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Luxury Presence of all liability) and (c) Luxury Presence reasonably cooperates with Customer in connection therewith.
7. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, OR A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
8.1 Term. The term of this Agreement will commence on the Effective Date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
8.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement upon written notice in the event (a) the other party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. Luxury Presence may also suspend any Luxury Presence Services immediately upon notice (i) if Customer violates (or gives Luxury Presence reason to believe it has violated) the License Restrictions; or (ii) if Luxury Presence reasonably determines that its provision of any of the Luxury Presence Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.
8.3 Suspension of Luxury Presence Services. Luxury Presence may also reasonably suspend Customer’s access to Luxury Presence Services and hosting of the Website at any time in its reasonable discretion if it possesses a good faith belief that Customer’s use of the Luxury Presence Services may be in violation of the License Restrictions or if Customer has not fully paid any invoices within fourteen (14) days after when such invoice was due. Luxury Presence shall not be liable or responsible for damages to Customer resulting from the suspension or termination of the Customer’s account. Reinstatement of suspended services requires payment of the outstanding balance in full, including any accrued interest. Suspension of Luxury Presence Services shall not release Customer from any outstanding fees.
8.4 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
8.5 Luxury Presence Insolvency. In the event Luxury Presence ceases to business in the ordinary course without a successor, Customer shall have a non-exclusive right to continue using any work product or deliverables provided by Luxury Presence to Customer solely to continue operation of the Customer Website. For clarity, Customer shall not have any right to sell, market, distribute, or otherwise commercialize such work product or deliverables.
9.1 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Luxury Presence Services.
9.2 Publicity. Customer agrees that Luxury Presence may refer to Customer’s name and trademarks in Luxury Presence’s marketing materials and website; however, Luxury Presence will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email). In addition, Luxury Presence may include a link to Luxury Presence’s website in the footer of the Customer Website and freely showcase any work product and deliverables provided to Customer on Luxury Presence’s website and social media channels.
9.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. In addition, Customer agrees that Luxury Presence may have any of its obligations performed through an Affiliate of Luxury Presence, provided that Luxury Presence will remain responsible for its obligations hereunder and will be liable for such Affiliate’s performance hereunder as if it were Luxury Presence hereunder. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Governing Law. This Agreement will be governed by the laws of the State of California, USA, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of Los Angeles, CA, USA, and the parties hereby consent to the personal jurisdiction of these courts.
9.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to Customer must be sent to the email or other address set forth in the applicable Order Form. Notices to Luxury Presence must be sent to the following address: Luxury Presence, Inc., 929 Colorado Avenue, Santa Monica, CA 90401, Attn: Mark MacDonald.
9.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and Luxury Presence with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Luxury Presence, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.10 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.