Terms of Service
These Terms of Service (this “Agreement”) are entered into by and between Luxury Presence Inc., a Delaware corporation (“Luxury Presence”), and the entity or person accessing or using the Luxury Presence Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any Order Forms that reference this Agreement. If you are accessing or using the Luxury Presence Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company.
Please note that Luxury Presence may modify the terms and conditions of this Agreement in accordance with Section 9.4 (Amendment; Waivers).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, EXECUTING AN ORDER FORM WITH LUXURY PRESENCE OR ACCESSING OR USING THE LUXURY PRESENCE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE LUXURY PRESENCE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
- 1. Definitions
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, and excluding the Luxury Presence Services and related materials, templates and technology.
“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”). The Luxury Presence Services require Customer’s reasonable cooperation and diligent efforts in working with Luxury Presence to create and launch a website. To the extent Customer does not provide reasonable cooperation, there may be delays in connection with the launch of Customer’s 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 Regarding Account. 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.
2.5 Delays to Subscription Start Date. Customer shall be responsible for the recurring monthly fees after the Subscription Start Date (as set forth in the corresponding Order Form). The Subscription Start Date may only be postponed if there are website bugs that prevent the site from functioning materially as outlined in the Agreement. For clarity, the following are not valid reasons to delay the Subscription Start Date: (i) Customer is unable to produce or supply the proper content needed for the website (community copy, bio, images, videos, etc.), or voluntarily chooses to delay the launch of the website due to lacking the aforementioned content; (ii) Customer would like to have a new feature completed prior to website launch that is outside the original scope of contract; in such case, the new feature would be developed on a different timeline outside of the original delivery date and would not delay the Subscription Start Date; or (iii) Customer was not aware that subscriptions may start even without a website being fully launched.
2.6 Website Launch.
(a) Provision of Content by Customer. Customer shall provide all necessary website content using the mechanism designated by Luxury Presence within fourteen (14) days from the effective date to allow appropriate time for the development of the website. In the event that Customer fails to provide the necessary content on a timely basis, the website launch date shall be pushed back by the amount of the delay.
(b) Revision Process. Following delivery of the necessary content by Customer, Luxury Presence shall deliver a staging link with the initial draft of the website no later than fourteen (14) days from the day all necessary content is received by Luxury Presence. After staging link is sent to Customer, Customer shall request any further revisions to the website within seven (7) days using the feedback form provided by Luxury Presence. After the requests have been received, Luxury Presence shall make the revisions within seven (7) days of receiving them. Luxury Presence shall provide up to two (2) rounds of revisions subject to Customer’s reasonable approval of all revisions included in each round. Customer acknowledges that Luxury Presence does not proceed with any additional revision work until all changes/requests for each round are confirmed by Customer. Customer further acknowledges that any additional revision requests, no matter how minimal, will only be worked on when submitted as part of an official revision round.
(c) Final Approval Process. Customer shall provide final approval within seven (7) days of receiving the revised staging website. Luxury Presence shall undertake its best efforts to launch the fully-functioning website no later than four (4) weeks from the effective date of this Agreement provided the Customer supplies all necessary assets (including photos, videos and copy) within seven (7) days of contract signing.
(d) Scope of Revisions. For clarity, “revisions” shall only include changes that can be made within the structure of the applicable template such as HTML & CSS, but do not include any custom coding changes or non-standard template features, which shall be subject to Luxury Presence’s approval and standard hourly rate (as set forth below). Further, Customer understands that requesting components from other design templates is outside the scope of the agreement except where approved in writing by Luxury Presence. Finally, Customer acknowledges that web design and development is a creative and subjective endeavor that is heavily guided by Customer direction. Any final website deliverable is the responsibility of the Customer if the original design template was modified in any way.
- 3. Fees
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. Customer understands and agrees to be charged the monthly subscription fees outlined above starting on Subscription Start Date independently of whether or not the website has been launched at that time. Unless Luxury Presence has a separate written agreement with Customer, Luxury Presence reserves the right to change its prices and fees from time to time in its sole discretion. If it does so, Luxury Presence will provide Customer with written notice of any such changes and such the new pricing and fees will take effect upon Customer’s next renewal.
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. 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 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 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 use commercially reasonable efforts to maintain the Luxury Presence Services in a manner designed to minimize 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. In addition, Customer represents and warrants that Customer’s use of Luxury Presence Services: (i) will comply with all applicable laws and regulations (including, without limitation, all applicable laws regarding online conduct and data privacy); (ii) will not be for any unlawful purposes, to publish illegal content, or in furtherance of illegal activities; and (iii) will not infringe or misappropriate the intellectual property rights of Luxury Presence or any third party.
5.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, LUXURY PRESENCE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. LUXURY PRESENCE DOES NOT REPRESENT OR WARRANT THAT THE LUXURY PRESENCE SERVICE WILL BE ERROR-FREE, AND LUXURY PRESENCE EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE LUXURY PRESENCE SERVICE. LUXURY PRESENCE IS NOT RESPONSIBLE OR LIABLE FOR ANY PRODUCTS OR SERVICES NOT PROVIDED BY LUXURY PRESENCE (INCLUDING ANY THIRD-PARTY PRODUCTS), AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS SOLE DISCRETION.
- 6. Indemnification
Customer will defend Luxury Presence against any claim, demand, suit, or proceeding made or brought against Luxury Presence by a third party arising out of the Customer Content, Customer’s breach of this Agreement, or use of the Luxury Presence Templates, and Customer will indemnify Luxury Presence for any damages finally awarded against (or any approved settlement) Luxury Presence in connection with any such Claim.
- 7. Limitation of Liability
UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL LUXURY PRESENCE BE LIABLE 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 LUXURY PRESENCE HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
- 8. Termination
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 subscription term will start on sooner of (a) the Subscription Start Date as set forth in the Order Form and (b) website launch date and will continue until the Subscription End Date as set forth in the Order Form. 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 Early Termination by Customer. Customer may terminate this Order Form prior to the Subscription End Date upon thirty (30) days’ written notice to Luxury Presence and payment of 100% of the remaining fees for the full Subscription Term (including any unpaid Subscription Fees, Set-Up Fees, Marketing Fees, Add-On Services, etc.). Any fees paid or outstanding before the time of termination are non-refundable.
8.4 Suspension of Luxury Presence Services. Luxury Presence may also reasonably suspend Customer’s access to Luxury Presence Services and hosting of the Customer 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.
8.5 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.
- 9. General
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. Luxury Presence reserves the right in its sole discretion and at any time and for any reason to modify this Agreement. With respect to each Order Form, any modifications to this Agreement, shall become effective upon posting. It is Customer’s responsibility to review this Agreement from time to time for any changes or modifications. If Customer does not agree to the modified Agreement, Customer may provide written notice to Luxury Presence and terminate this Agreement. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. 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., 504 Lavaca St, Suite 840, Austin, TX 78701, Attn: Phi Vo.
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.