PROVIDER LISTING AGREEMENT
TERMS AND CONDITIONS
1. Definitions. When used herein the following capitalized words shall mean the following:
“Agreement” means this agreement.
“Business Listing” means the submission of requested information about Providers business for inclusion in WineryPartners’ searchable database of businesses.
“Effective Date” means the date that the Business Listing is scheduled to first be available and accessible on the WineryPartners Web Site.
“Term of this Agreement” means the term of this Agreement commencing on the Effective Date and continuing until termination or expiration as provided herein.
2. Representations and Warranties/Indemnification. Provider is solely responsible for any legal liability arising out of or relating to (a) the Business Listing, (b) any material to which users can link through the Business Listing and (c) the products or services offered through the Business Listing via a hypertext or other link (“Link”) to third party or Provider web sites. Provider represents and warrants that: (i) Provider has the power and authority to enter into and perform its obligations under this Agreement; (ii) the Provider Listing request is honest and truthful; (iii) that Provider owns all of the unencumbered necessary rights to permit the publication, distribution and use of the Provider Listing by WineryPartners for the purposes of this Agreement; and (iv) that the use, reproduction, distribution, transmission, display or serving of the Business Listing will not violate any laws or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, or other proprietary, property or other right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or violation of any antidiscrimination law or regulation (collectively “Indemnified Violation”). Provider will continue to own any Business Listing and other materials supplied to WineryPartners by Provider. Provider grants to WineryPartners the royalty-free license to copy, modify, publish and distribute the Business Listing, trademarks, service marks and other materials delivered by Provider for publication on the WineryPartners Web Site in accordance with this Agreement. WineryPartners shall own any works or creations prepared by WineryPartners’ employees or Providers, including without limitation those works and creations incorporated by WineryPartners into any Business Listing or other materials supplied by Provider. Provider shall defend, indemnify and hold WineryPartners and its employees, officers, directors, shareholders, and agents harmless from any and all liability, loss, damage, expense, claim, or cause of action, including, without limitation legal fees and expenses, arising out of or related to Provider’s breach (or alleged breach) of this Agreement or any of the representations and warranties contained herein, including, without limitation, any liability, loss, damage, expense, claim, or cause of action arising from an Indemnified Violation. Provider and the persons submitting application on behalf of Provider represent and warrant that the persons submitting Business Listing for Provider have the right and power to enter into this Agreement.
3. LIMITATIONS ON DAMAGES AND WARRANTIES. IN THE EVENT OF A BREACH OF ANY OF THE TERMS OF THIS AGREEMENT BY WineryPartners, THE SOLE AND EXCLUSIVE REMEDY OF PROVIDER AND ITS AGENTS SHALL BE RECOVERY OF DAMAGES NOT TO EXCEED THE AMOUNT PAID BY PROVIDER FOR THE BUSINESS LISTING IN CONNECTION WITH WHICH THE BREACH OCCURRED. WineryPartners SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT WineryPartners HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WineryPartners DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES AND PRODUCTS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT RESTRICTED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WineryPartners makes no warranty or guaranty whatsoever regarding the availability, operation or content of the WineryPartners Web Site. Access to the WineryPartners Web Site is provided on an “AS-IS, AS-AVAILABLE” basis. Provider acknowledges that the WineryPartners Web Site and the Business Listing may be unavailable from time to time for maintenance, service, lack of capacity, network congestion and other causes within or without the control of WineryPartners. WineryPartners is not responsible or liable in any manner for any information, materials or comments posted on the WineryPartners Website, whether posted by users of the WineryPartners Website, by WineryPartners, or by third parties. Although WineryPartners provides rules for user conduct and postings, WineryPartners does not control and is not responsible for what users post, transmit or share on the WineryPartners Website and is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content that may be posted on the WineryPartners Website. WineryPartners is not responsible for the conduct, whether online or offline, of any user of the WineryPartners Website.
4. Default and Termination. Either party may terminate the Term of this Agreement on written notice to the other party if the other party materially breaches this Agreement. Sections 1, 2, 3, 4, 5, 7, 9, 10, and 11 and all payment obligations of Provider shall survive any termination or expiration of the Term of this Agreement. All sums owed by Provider to WineryPartners shall be immediately due and payable upon termination or expiration of the Term of this Agreement.
5.1 Terms and Conditions; Publicity. The terms and conditions of this Agreement will be considered confidential and will not be disclosed to any third parties except to such party’s employees, agents, representatives, accountants and attorneys, on a need-to-know basis only, or except as otherwise required by law. Neither party will disclose the existence of this Agreement prior to the Effective Date other than to such party’s employees, agents, representatives, accountants and attorneys, or except as otherwise required by law.
5.2 Privacy of User Information. All information and data provided to WineryPartners by users of the WineryPartners Website or otherwise collected by WineryPartners relating to user activity on the WineryPartners Web Site, shall be retained and owned solely by WineryPartners.
6. Reservation of Rights. Notwithstanding anything to the contrary contained in this Agreement, WineryPartners reserves the right to refuse to serve or display, and reserves the right to remove, any Business Listing or other Provider-provided material from the WineryPartners Website for any reason or no reason, in its sole discretion.
7. Assignment. Provider shall not assign or otherwise transfer this Agreement and any rights or obligations hereunder without the express written approval of WineryPartners.
8. Governing Law. This Agreement shall be construed and controlled by the internal substantive laws of the State of California, without application of conflict of law provisions, and Provider consents to jurisdiction and venue in the state and federal courts sitting in Sonoma County, California.
9. Termination of Insertion Orders. Provider may terminate any Business Listing by giving at least thirty (30) days prior written notice of the termination date. WineryPartners may terminate any Business Listing by giving at least fifteen (15) days prior written notice of the termination date. In the event of any such termination, all payments for Business Listings pursuant to the applicable Insertion Order shall be immediately due and payable based upon the time the Business Listing was actually active on WineryPartners’ website.
10. Entire Agreement. This Agreement does not constitute an offer by either party and it shall not be effective until Provider has submitted Business Listing and WineryPartners has agreed to display Business Listing as evidenced by Business Listing appearing on WineryPartners website. This Agreement and all exhibits, attachments shall constitute the entire agreement between the parties with respect to the subject matter hereof and shall be deemed to merge all prior and contemporaneous agreements, communications and understandings (both written and oral). The terms and conditions of this Agreement will prevail over any contrary or inconsistent terms in any other document. This Agreement may not be modified except by a written agreement signed on behalf of WineryPartners and Provider by their respective duly authorized representatives. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
11. Force Majeure/Interruption. Neither party shall be liable for any failure to perform any of its obligations under this Agreement (except payment obligations) due to unforeseen circumstances or causes beyond the party’s reasonable control, including without limitation, acts of God, riot, embargoes, acts of governmental authorities, fire, earthquake, flood, accident, strikes, or inability to secure transmission facilities (“Force Majeure”).
12. Notices. All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) three days after being deposited in the U.S. mail, postage prepaid, certified or registered, return receipt requested; or (ii) one day after being sent by air express courier, charges prepaid; and addressed to the address for the receiving party as shown in the Business Listing (or to such other address as the party to receive the notice or request so designates by written notice to the other).