Local Advertising Terms and Conditions|
These Local Advertising Terms and Conditions (the "Agreement") govern your relationship with PalmDesertBook.com. By advertising with PalmDesertBook.com,
you (the "Business," "your" or "you") hereby agree to be bound by the terms and conditions of the Agreement set forth below.
THE PALM DESERT BOOK SERVICE
Palm Desert Book provides users with access to a rich collection of on-line resources, including without limitation business web page hosting services, on and off-line advertising services, couponing services, and the ability to contact merchants from whom consumers or businesses seek deals (collectively, the "Service"). Unless explicitly stated otherwise, any new features that enhance the current Service shall be subject to these Terms. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
In consideration of use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Palm Desert Book has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Palm Desert Book has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). Additionally, you agree that if you provide false information to obtain access to a Palm Desert Book business or consumer page that you are not legally entitled to claim, Palm Desert Book will be entitled to collect liquidated damages of $1000 per violation or actual damages incurred by Palm Desert Book from you. You understand and agree that the service may include certain electronic and telephone communications from Palm Desert Book, including but not limited to, service announcements, status reports, administrative messages and the Palm Desert Book Newsletter, and that these communications are considered part of Palm Desert Book membership and (except as prohibited by applicable law) you may not be able to opt out of receiving them.
COUPONS & PalmDesertBook.com DISCOUNT CARD
If you as a merchant use the couponing feature to provide consumers with deals through the Palm Desert Book platform, you represent and warrant that you have authority to offer such a deal and promise to honor the terms of that deal as they are presented to the consumer through the Palm Desert Book platform. Without limitation of other representations, warrants, and indemnities elsewhere within these Terms, you specifically agree to indemnify Palm Desert Book against any claims by users of the service that the terms of a coupon or other offered deal were not honored.
PALMDESERTBOOK.COM PROPRIETARY RIGHTS
You agree that all content and materials delivered via the Service or otherwise made available by Palm Desert Book are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by Palm Desert Book in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content.
Reproducing, copying or distributing any content, materials or design elements on the Palm Desert Book website for any other purpose is strictly prohibited without the express prior written permission of Palm Desert Book. Use of the content or materials for any purpose not expressly permitted in these Terms is prohibited. Any rights not expressly granted herein are reserved.
You acknowledge and agree that the you will not copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Program. You agree not to modify the Program in any manner or form, or to use modified versions of the Program, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Palm Desert Book for use in accessing the Service.
TERM AND TERMINATION
This Agreement shall begin on the date set forth on your Enrollment Form and continue for the term identified therein (the "Term"). Thereafter the Term Business shall have option to renew another one (1) year term ("Renewal Term"). In the event you terminate the Agreement prior to the expiration of the Term, or PalmDesertBook.com terminates the Agreement due to your breach thereof, PalmDesertBook.com is not liable to refund moneys paid for the annual term.
BUSINESS' ADVERTISING WITH PALMDESERTBOOK.COM
All Business placement, excluding Sponsor Plans, is determined by user reviews and ranking system and is not controlled by PalmDesertBook.com. Sponsor level plans are guaranteed to always be one of the top three in their category. PalmDesertBook.com does not guarantee which one of the top three sponsor level plans will be on an ongoing basis. PalmDesertBook.com reserves the right to modify elements of Business' advertising, including, size, format, text or any other elements and to move the listing within the directory listing categories on PalmDesertBook.com's website. PalmDesertBook.com also reserves the right not to display, or to remove, any of Business' advertising on the PalmDesertBook.com website or a PalmDesertBook.com distribution partner website, in accordance with PalmDesertBook.com's advertising guidelines, and subject to inventory availability and PalmDesertBook.com's normal course of business. PalmDesertBook.com may at its sole discretion (i) distribute Business' advertising through PalmDesertBook.com's third party distribution partners (Business may request that its advertising not be distributed through certain of PalmDesertBook.com's third party distribution partners by contacting PalmDesertBook.com's customer service department, however, certain core distribution partners may not be excluded from Business' advertising distribution) and (ii) include Business' advertising in PalmDesertBook.com's search engine marketing program. PalmDesertBook.com reserves the right to include an image, from PalmDesertBook.com's proprietary image gallery, into Business' advertising. Business may elect to remove such image at any time by notifying PalmDesertBook.com and/or accessing Business' MyAccount. Business also grants PalmDesertBook.com an irrevocable (during the term of this Agreement) right and license to copy, display and modify Business' logo and/or trademark for inclusion on Business' advertising on the PalmDesertBook.com website and the websites of PalmDesertBook.com's distribution partners, as well as for use in PalmDesertBook.com's marketing or promotional materials, online postings, emails, or any other media, and you agree that you shall not be entitled to payment associated with PalmDesertBook.com's use of the foregoing.
LOCATION RELEASE FOR MERCHANT VIDEOS
Business hereby grants PalmDesertBook.com and its contractor(s) (collectively the "Producers") permission to enter upon and use the Business' "Property" (defined as the locations set forth in the Enrollment Form) and the contents thereof and all appurtenances thereto with personnel, actors and equipment for the purpose of photographing and recording certain scenes for Merchant Videos. Business represents and warrants that it is the true owner or lessee of the Property, and is authorized to allow Producers to enter the Property for purposes of photographing and recording the Merchant Video. All physical (including electronic) embodiments of filming, audio/video recording and photography on the Property shall hereafter be known as the "Materials." Producers shall have the right to take video recordings, motion pictures, still photographs and sound recordings in, on and/or of the Property. Producers shall have the right to photograph and depict the Property and to take exterior and interior video recording of any buildings or other improvements located on said Property and photograph any people, animals, automobiles and/or any other objects on the Property. Producers may bring such personnel and equipment as they may determine necessary onto the Property for the purpose of exercising their rights hereunder and agree to remove same after completion of work. Business agrees that PalmDesertBook.com, its successors, licensees and assigns, shall have exclusive ownership of and the irrevocable, worldwide and perpetual right to make any and all use of the Materials, or any portion thereof, in connection with the Merchant Video in all media forms (now known or hereafter developed), including but not limited to all forms of website, broadcast, television, mobile phone, home video/disc, advertising and promotion of the Production. The Business may request a copy of the video footage or photography of their business to use for their own advertising, however neither the Business, nor any tenant, lessee, lessor, nor any other party shall have any right of action against Producers arising out of the use of said Materials. In the event Business or the owner of the Business participates in the Production, Business hereby unconditionally grants and releases to PalmDesertBook.com and PalmDesertBook.com's successors, assignees and licensees, the irrevocable and perpetual right throughout the universe, but not the obligation, to use, as PalmDesertBook.com, its successors, assignees and licensees may desire, all Materials which Producers may make of Business or its owner's voice, including the right to use Business owner's name, voice and/or likeness, in the Merchant Video and in connection with any and all advertising, publicizing, and exhibiting the Merchant Video, in whole or in part, in any manner whatsoever, in any and all languages, by any and all means, media, devices, processes and technology now or hereafter known or devised and for any purpose desired by PalmDesertBook.com. Business agrees that it is owed no payment or fees, Business further agrees that Producers may edit, alter, dub and/or otherwise change the Materials for any purpose whatsoever. Business hereby releases PalmDesertBook.com, its successors, assignees and licensees from any and all claims and demands arising out of or in connection with such use including, without limitation, any and all claims for invasion of privacy, infringement of my right of publicity, defamation (including libel and slander) and any other personal and/or other property rights, and Business agrees that it shall not now or in the future assert or maintain any such claim against PalmDesertBook.com, its successors, assignees and/or licenses. In no event shall Business Owner be entitled to seek to enjoin the production, distribution, exhibition and/or other exploitation of the Merchant Video or any part thereof.
You agree that payment will be made on an annual basis, and may be made to PalmDesertBook.com via cash, check or processing your credit card. Business agrees that it shall be responsible to reimburse PalmDesertBook.com for all costs incurred related to any attempted recovery of late payments, including but not limited to reasonable attorneys fees, and any costs of collection agencies. Business understands and agrees that non-payment of invoices will be deemed to be a breach of this Agreement allowing PalmDesertBook.com to cancel Business' account at its sole discretion and requiring Business to pay the amounts that would have been due for the remainder of the Term as further described above. You agree that PalmDesertBook.com has the right to require advance payment of the annual dues, and any applicable fees set forth in the Enrollment Form.
BUSINESS' REPRESENTATIONS AND WARRANTIES
Business represents and warrants to PalmDesertBook.com that (i) Business owns all artwork, text, trademarks, business names and/or other materials that it provides to PalmDesertBook.com ("Business' Content"), and none of the Business' Content shall infringe upon the intellectual property rights of any third party; (ii) Business' performance hereunder will not cause a material breach of any agreement to which it is a party; (iii) Business has the right and authority to enter into this Agreement and perform the obligations herein; (iv) Business will at all times comply with all applicable laws and regulations; and (v) Business will not provide to PalmDesertBook.com, and Business' website does not contain, any content that is obscene, pornographic or otherwise offensive in nature.You acknowledge that Palm Desert Book does not always pre-screen Content, but that Palm Desert Book and its designees shall have the right (but not the obligation) in their sole discretion to remove or block access to any Content that is available via the Service. Without limiting the foregoing, Palm Desert Book and its designees shall have the right to remove any Content that violates the Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
Business shall fully protect, indemnify and defend PalmDesertBook.com and all of its agents, officers, directors, shareholders, suppliers, partners, employees and each of their successors and assigns ("Indemnified Parties") and hold each of them harmless from and against any and all claims, demands, liens, damages, causes of action, liabilities of any and every nature whatsoever, including but not limited to personal injury, intellectual property infringement, fraud, deceptive advertising, violation of any state or federal laws or regulations, property damage, attorneys' fees and court costs, based upon or arising in any manner, directly or indirectly, out of or in connection with or in the course of or incidental to (i) any breach of Business' representations, warranties, or obligations as provided in this Agreement, and (ii) Business' advertising, products or services, or the provision thereof to consumers, Business' website, and any Business Content and any video or audio content submitted to PalmDesertBook.com by Business, REGARDLESS OF CAUSE OR OF ANY FAULT OR NEGLIGENCE OF PALMDESERTBOOK.COM OR THE INDEMNIFIED PARTIES AND WITHOUT REGARD TO CAUSE OR TO ANY CONCURRENT OR CONTRIBUTING FAULT, STRICT LIABILITY OR NEGLIGENCE, WHETHER SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE BY PALMDESERTBOOK.COM OR THE INDEMNIFIED PARTIES.
If Business executes an Enrollment Form on behalf of a third party advertiser as an agency, Business hereby represents and warrants to PalmDesertBook.com that such third party advertiser ("Third Party Advertiser") is contractually bound by the terms of this Agreement and as such is subject to all obligations and restrictions applicable to Business hereunder and all representations and warranties made by Business hereunder. In furtherance of the foregoing, Business agrees to indemnify, defend and hold harmless PalmDesertBook.com, its subsidiaries, affiliates, agents, partners, officers, directors, employees, and vendors and suppliers from and against any loss, cost, claim, injury or damage (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection with a breach of this Agreement by any Third Party Advertiser.
LIMITATION OF LIABILITY
IN NO EVENT WILL PALMDESERTBOOK.COM BE LIABLE TO BUSINESS FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, LOST REVENUE, LOST PROFITS OR LOSS OF GOODWILL. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF PALMDESERTBOOK.COM TO BUSINESS EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY BUSINESS TO PALMDESERTBOOK.COM DURING THE PRECEEDING TWELVE (12) MONTHS, REGARDLESS OF THE BASIS OR FORM OF CLAIM.
DISCLAIMER OF WARRANTIES AND GUARANTEES
BUSINESS ACKNOWLEDGES AND AGREES THAT PALMDESERTBOOK.COM'S SERVICES ARE PROVIDED TO BUSINESS ON AN "AS IS" BASIS, AND PALMDESERTBOOK.COM DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED BY LAW, PALMDESERTBOOK.COM DISCLAIMS ALL WARRANTIES AND GUARANTEES REGARDING AN ADVERTISEMENT'S POSITIONING OR THE NUMBER OF IMPRESSIONS ON THE PALMDESERTBOOK.COM WEBSITE OR A PALMDESERTBOOK.COM PARTNER WEBSITE, THE QUALITY OR TIMING OF CLICK-THROUGHS, CLICK-THROUGH RATES, CONVERSIONS OR OTHER PERFORMANCE OR RESULTS FOR ANY ADVERTISING.
You agree to indemnify and hold Palm Desert Book, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of the Terms, or your violation of any rights of another.
NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service.
MODIFICATIONS TO SERVICE
Palm Desert Book reserves the right at any time and from time to time to modify or temporarily discontinue, the Service (or any part thereof) with or without notice. You agree that Palm Desert Book shall not be liable to you or to any third party for any modification, suspension or temporary discontinuance of the Service.
The terms of this Agreement and the Enrollment Form may be changed by PalmDesertBook.com from time to time, and any notices hereunder shall be made, by providing you with email or written notice, or by posting any such changes on the PalmDesertBook.com website, and you agree to be bound by any changes. Business acknowledges and agrees that PalmDesertBook.com may from time to time send surveys and other marketing-related correspondence to Business via electronic or standard mail, and that Business may opt-out from receiving such correspondence in the future. In addition, Business agrees that it is required to maintain a current and operational email address on file with PalmDesertBook.com. Business will be liable for any attorneys' fees and costs if PalmDesertBook.com takes any legal action to enforce this Agreement. The laws of the State of California (excluding the laws and principles with respect to conflicts of law) govern this Agreement. You hereby consent and agree that the state or federal courts in Los Angeles, California are the exclusive forum for litigation of any claim by you arising under this Agreement, and you submit to sole and exclusive jurisdiction in Los Angeles, California, and hereby irrevocably waive and relinquish any right to bring, or cause to be brought, any such action, or to have any such action brought, in any judicial or administrative forum outside Los Angeles, California. This Agreement constitutes the entire agreement between the parties and supersedes all oral and written negotiations of the parties with respect to the subject matter hereof. The terms and conditions of this Agreement may not be modified or amended other than by a writing signed by both parties.