Last updated April 8, 2022
This Terms and Conditions document (a) forms a part of (i) any Order Form to which it is attached or appended by reference that both Love That RV (collectively “Love That RV, “we”, or “us”) and the customer identified therein (“Customer”) execute and deliver, and (ii) any other Order Form that references these Terms and Conditions that Love That RV and Customer may execute and deliver from time to time, and (b) sets forth additional terms and conditions relating to the provision and use of the Ordered Product(s)/Service(s) (defined below).
The Order Forms described above, these Terms and Conditions, and all attachments, addenda, exhibits and schedules to such documents are, collectively, the “Agreement.” Capitalized terms that are not defined in these Terms and Conditions (or in an addendum or exhibit hereto), shall have the meanings given those terms under the Order Form.
1. Ordered products and services
2. Fees
3. Systems
4. Compliance
5. Proprietary Rights; License; Restrictions
6. Confidentiality
7. Disclaimer; Limitations of Liability
8. Indemnification
9. Term and Termination
10. Governing Law; Dispute Resolution
11. General
1. Ordered Products and Services
a. All products and services ordered by Customer in the Order Form and/or any additional or supplemental order form are referred to herein collectively as the “Ordered Product(s)/Service(s).” The Ordered Products/Services may include, but are not necessarily limited to, (i) advertising services (“Advertising”), (ii) the development, hosting, maintenance and/or support of one or more websites (each, a “Customer Website”) and/or (iii) the provision of other products or services that may include, among other things, email marketing and/or social media management services. The initial term for each Order Form and all Ordered Products/Services described therein, unless and until terminated in accordance with Section 9, shall be (A) the initial term set forth in the Order Form, if any, or (B) if no such term is set forth in the Order Form, a period of twelve (12) months starting on the effective date of such Order Form. Upon expiration of the initial term, the term for each Order Form and all Ordered Products/Services described therein shall be (1) renewed or extended in the manner specified in the Order Form, if any, or (2) if the Order Form does not specify the manner of renewal or extension, automatically renewed on a month-to-month basis (the initial term and any extension or renewal term, the “Contract Period”), in each case, unless and until terminated in accordance with Section 9.
b. For each Ordered Product/Service, Love That RV hereby grants Customer a non-exclusive, non-transferable, revocable, limited license during the term of the Agreement to access and use that Ordered Product/Service and the related Love That RV Proprietary Materials (defined below) solely in connection with the lawful operation of its business expressly identified in the Order Form.
c. With respect to any Ordered Products/Services that include Advertising, Customer expressly acknowledges and agrees that (i) all Advertising content submitted to Love That RV for publication hereunder is subject to Love That RV’s approval in its sole discretion, (ii) Love That RV reserves the right in its sole discretion to reject or cancel any Advertising at any time, with or without notice to Customer, and (iii) the positioning within any applicable media (including Love That RV websites and/or third party websites) of all Advertising is and shall be at the sole discretion of Love That RV. In addition, while there is no requirement that Customer own the inventory/units included within any Advertising submitted hereunder (for instance, in the case of a broker or auction situation), (A) Customer must (and hereby represents and warrants that it does and shall) have all necessary rights to include such inventory/units within any and all such Advertising, and (B) Customer acknowledges and agrees that it is (and shall be) solely responsible for accurately representing all applicable inventory/units included within such Advertising (e.g., price, color, condition, features etc.), whether or not Customer owns such inventory/units, and Love That RV shall not have any liability whatsoever, to any person or entity, for any inaccuracies in any Advertising submitted hereunder.
d. With respect to any Advertising covered by an OEM (manufacturer) “Co-op” program, Customer hereby agrees to the following terms and conditions regarding such Advertising (“Co-op Advertising”): (i) Co-op Advertising is available under this Agreement for any Advertising products/arrangements specified or otherwise designated by Customer’s applicable OEM; (ii) the dollar amount of Advertising that is eligible for consideration as Co-op Advertising hereunder cannot exceed the total amount of Fees (defined below) payable by Customer under this Agreement; (iii) due to limited availability, ad detail banners, state banners and gallery banners provided by Love That RV as Co-op Advertising under this Agreement cannot be discounted under any circumstances, regardless of whether such banners are provided as part of a bundle/package or provided “a la carte” (individually) (iv) Advertising must be part of a 12-month commitment from Customer under this Agreement in order to be considered for Co-op Advertising hereunder and otherwise be eligible for participation in any OEM Co-op program; and (v) Love That RV will file claims for Co-op Advertising with the applicable OEM(s) on Customer’s behalf within twenty (20) days after the end of the previous month, provided, Customer must allow additional time for OEM reimbursement under its Co-op program.
e. Love That RV may also offer various products, services and/or other solutions that are provided by third parties and interoperate with one or more Ordered Products/Services hereunder, including but not necessarily limited to chat, social media management and data distribution (collectively, “Third-Party Products”). If (but only if) any Third Party Products are utilized together with Ordered Products/Services, Customer expressly acknowledges and agrees that the following terms shall apply with respect to such Third-Party Products: (i) any use by Customer of any Third-Party Products, and any exchange of data between Customer and any provider of such Third-Party Products, is solely between Customer and the applicable third-party provider, and Love That RV does not warrant or support any Third Party Products and hereby expressly disclaims any representations or warranties of any type or nature whatsoever with respect to any Third Party Products; and (ii) in addition to and not in limitation of the foregoing, Customer understands and agrees that (A) Customer shall look solely to the third-party vendor of the applicable Third Party Products (and not to Love That RV) for maintenance and support, including but not limited to resolution of system errors, bugs, patches and fixes, and (B) Customer’s sole and exclusive rights and remedies with respect to any Third Party Products, including rights and remedies in the event any Third Party Products give rise to an infringement claim, will be against the third-party vendor and not against Love That RV.
2. Fees
a. For each Ordered Product/Service, Customer shall pay Love That RV all fees designated in the Order Form for that product or service, as the same may be hereafter modified, which may include one-time “upfront fees” or set-up fees and costs and/or recurring “monthly fees” (collectively, the “Fees”).
b. Except to the extent that any such fees are payable in advance, Love That RV will invoice Customer for all Fees on a periodic basis (which will be monthly in most cases), and all invoices are due upon receipt. If any Ordered Products/Services are provided on a bundled basis, Love That RV will begin invoicing for those Ordered Products/Services when the first of those bundled Ordered Products/Services is deployed/activated.
c. Any invoice that remains unpaid thirty (30) days after the original invoice date shall be subject to interest on any outstanding balance at a rate equal to the lesser of (i) 1.5% per month or (ii) the maximum rate permitted by applicable law. Love That RV also reserves the right to impose a late fee of twenty dollars ($20) on any invoice that remains unpaid thirty (30) days after the original invoice date. If any outstanding Fees remain unpaid for thirty (30) (or more) days from the original invoice date, Love That RV may, without limiting any of its rights and remedies, suspend the provision of the Ordered Products/Services in respect of which payment has not been received plus any or all other Ordered Products/Services.
d. All Fees are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed for the provision of Ordered Products/Services, and Customer shall be solely liable for and shall pay all such taxes (except for any such taxes based on the net income of Love That RV), regardless of when they were incurred and/or whether or not they are included on any invoice.
e. Love That RV may modify any monthly Fees payable under the Agreement by giving Customer at least one month’s prior written notice from time to time. Any such Fee modification shall not require an affirmative response by Customer or any further action by the parties; provided, however, if any such Fee modification will result in an increase in the Fees that are payable in respect of an Ordered Product/Service, then Customer may cancel the applicable Ordered Product/Service by giving Love That RV written notice of cancellation before the Fee increase goes into effect. If Customer does not timely cancel the applicable Ordered Product/Service, then such Fee increase shall be effective (and binding on Customer) as of the date specified in Love That RV’s initial notice.
3. Systems
a. Customer acknowledges and agrees that (i) Love That RV, in its discretion, may collect, track, analyze and/or create information and reports (collectively, “Results Reports”) related to each of (A) activities and/or results obtained in connection with Customer’s use of the Ordered Products/Services, including, without limitation, analytics data, measurement data, and other data regarding the use and/or effectiveness of any Advertising, Customer Website, or other Ordered Products/Services (collectively, “Analytics Data”), (B) consumer or purchaser sales leads generated from Sales Listings (defined below) on Love That RV’s websites or Customer Websites in connection with the provision of the Ordered Products/Services, including, without limitation, all information about the prospective consumer or purchaser received with the lead, including their internet protocol address, geolocation, website browsing and search history, name, email address, phone number and other information as the prospective consumer or purchaser may provide (collectively, “Lead Data”); and (C) Listings Data and Customer Content (each defined below); and (ii) in furtherance thereof, Love That RV may install certain tracking pixels or other similar tools on Love That RV’s websites, the Customer Websites and the Customer Content included therein (including photos) and use those pixels and tools to collect information relating to such use of the applicable Ordered Products/Services and/or any Analytics Data, Lead Data, Listings Data, or Customer Content.
4. Compliance
a. Customer represents, warrants and covenants that it is currently in compliance, and shall continue to comply, with all federal, state and local laws, rules, regulations and ordinances applicable to the Agreement and its use of the Ordered Products/Services, including in each case to the extent applicable, but not necessarily limited to, the requirements of the Gramm Leach Bliley Act (15 U.S.C. §§ 6801 et seq.), the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 USC §§ 6101 et seq.), the Telephone Consumer Protection Act of 1991 (47 USC § 227), the Telemarketing Sales Rule (16 CFR Part 310), the CAN-SPAM Act (15 U.S.C. § 7701 et seq.), and the California Consumer Privacy Act (Cal. Civ. Code. § 1798.100 et. seq.), in each case as amended from time to time and including the accompanying federal or state regulations related thereto, and any other applicable federal or state requirements regarding use of the Ordered Products/Services. Customer further warrants and covenants that it shall comply with all policies and procedures in respect of the use of the Ordered Products/Services that Love That RV may provide to Customer from time to time, including, without limitation, policies and procedures regarding (i) end user use of an Ordered Product/Service and (ii) language that Love That RV may request Customer to include in its website privacy policy and customer order forms. Notwithstanding the foregoing, Customer expressly acknowledges and agrees that any website privacy policy template provided with respect to a Customer Website is provided for illustration only, and Customer agrees that it will consult with its own legal counsel in creating a privacy policy that complies with all applicable federal, state and local laws, rules, regulations and ordinances, including, without limitation, the California Consumer Privacy Act.
b. Customer acknowledges and agrees that, as between Customer and Love That RV, Customer is solely responsible for all products advertised via any Advertising hereunder (including but not limited to the pricing thereof) as well as all information, content, messages, editorial content, music recordings, photographs, videos, artwork or other similar content that is included within, displayed on or distributed through any Advertising, any Customer Website, any Love That RV website or any other product maintained or made available, in any media (electronic or otherwise), through any Ordered Product/Service (such content, except to the extent it incorporates any Love That RV Proprietary Material, is collectively the “Customer Content”). Without limiting the foregoing, Customer represents and warrants to Love That RV that (i) Customer owns the Customer Content and/or (ii) all licenses, rights and other permissions from third parties (including but not limited to ASCAP, BMI and the Copyright Clearance Center) that are necessary to display or distribute the Customer Content through the applicable Ordered Products/Services shall be obtained (for the benefit of Customer and Love That RV) and fully paid before such display and/or distribution commences and, further, shall thereafter be maintained in full force and effect by Customer for so long as such distribution continues hereunder. Customer acknowledges and agrees that Love That RV has not undertaken, and will not undertake, any obligation to investigate or evaluate the extent to which the display or distribution of any Customer Content infringes upon or misappropriates any right of any third party or is otherwise permissible.
c. Customer acknowledges and agrees that, as between Customer and Love That RV, Customer is solely responsible for the access, use, storage and disclosure of Lead Data and any other personal information in compliance with the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 USC §§ 6101 et seq.), the Telephone Consumer Protection Act of 1991 (47 USC § 227), the Telemarketing Sales Rule (16 CFR Part 310), the CAN-SPAM Act (15 U.S.C. § 7701 et seq.), and the California Consumer Privacy Act (Cal. Civ. Code § 1798.100 et. seq.), in each case as amended from time to time and including the accompanying federal or state regulations related thereto. Customer acknowledges and agrees that Love That RV has not undertaken, and will not undertake, any obligation to ensure that the Lead Data provided to Customer can be used by Customer without violating the Telephone Consumer Protection Act of 1991 (47 USC § 227) and the Telemarketing Sales Rule (16 CFR Part 310), in each case as amended from time to time and including the accompanying federal regulations related thereto.
d. Customer shall implement and maintain technical, physical and organizational measures that are designed to ensure the security, confidentiality and integrity of Lead Data and any other personal information consistent with the requirements of all applicable federal, state and local laws, rules, regulations and ordinances.
5. Proprietary Rights; License; Restrictions
a. As between the parties, Love That RV shall own all right, title and interest in and to the following (the “Love That RV Proprietary Materials”): (i) the Ordered Products/Services, whether owned by Love That RV or provided through a contract or license with a third party; (ii) all Intellectual Property Rights (defined below) in the Ordered Products/Services and all software, technology, materials, documentation, and Brand Features (defined below) that relate to, or furnished in connection with, the Ordered Products/Services, including, without limitation, all Intellectual Property Rights in any software product and/or application; (iii) the style and design of any Customer Website; (iv) all text, audio, photo, video or other creative works, whether in print or electronic form, developed by Love That RV for any Customer Website or Sales Listing (defined below); (v) all Analytics Data, all Lead Data, and all Results Reports and the content therein; and (vi) all derivative works and enhancements to any of the foregoing. Customer shall not acquire any right, title or interest in the Love That RV Proprietary Materials, except for the limited use rights expressly granted under the Agreement, and Customer shall not take any action to impair, limit or interfere in any manner with Love That RV’s ownership or rights with respect to any Love That RV Proprietary Materials. Any rights not expressly granted herein are deemed withheld. Customer acknowledges and agrees that nothing herein shall be deemed or construed to limit in any manner Love That RV’s use of the Love That RV Proprietary Materials. Except as expressly permitted in the Agreement, Customer may not use, reproduce, transfer, share, sublicense, make available, communicate or transmit any Love That RV Proprietary Materials in any form or by any means without the prior written consent of Love That RV, and, without limiting the foregoing, Customer is expressly prohibited from reselling, renting, loaning or otherwise sharing any Love That RV Proprietary Materials or divulging any related Confidential Information (defined below). Furthermore, Customer shall not directly or indirectly, and shall not permit or authorize a third party to, modify, translate, transform, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code from any Love That RV Proprietary Materials. Customer acknowledges and agrees that nothing herein shall be deemed or construed to limit in any manner Love That RV’s use of the Love That RV Proprietary Materials.
b. As between the parties, Customer shall own all right, title and interest in and to the Customer Content, all specifications and inventory data relating to any Sales Listing that Customer collects and submits to any Love That RV website or Customer Website (collectively, “Listings Data”), and all Intellectual Property Rights therein (collectively, the “Customer Proprietary Materials”); provided, Customer hereby grants to Love That RV a non-exclusive, worldwide, irrevocable, perpetual, royalty free right and license (with rights to sublicense) to reproduce, use, prepare derivative works from, display and distribute the Customer Proprietary Materials as may be necessary or appropriate for Love That RV to provide the Ordered Products/Services (without limiting the foregoing, Love That RV may share the Customer Proprietary Materials with its affiliates and applicable third-party vendors to the extent Love That RV deems necessary or appropriate to provide the Ordered Products/Services). In addition to and not in limitation of the foregoing, the parties acknowledge and agree that (i) subject to the rights of applicable registries and/or registrars in and to any such domain name(s), Customer is the sole owner of the domain name(s) for any Customer Website registered by or on behalf of Customer, and Customer shall be solely responsible for any applicable domain name registration fees (Love That RV may host domain name(s) on behalf of Customer, but shall have no ownership rights or responsibilities with respect thereto); (ii) Love That RV shall have no responsibility for Customer’s failure to renew or maintain in good status Customer’s domain name(s); and (iii) Customer shall not be entitled to any credit against its Fees payable to Love That RV if any Customer Website is unavailable due to any failure to maintain domain name(s) in good standing.
c. Without limiting the foregoing, Customer agrees that Love That RV may use, prepare derivative works from, reproduce, modify, sublicense, transfer, sell, and distribute any Analytics Data, Lead Data, and/or Results Reports for any lawful purposes, including, without limitation, in connection with (i) Love That RV’s internal creation, development, or improvement of any products and services, or (ii) Love That RV’s providing or marketing of any products and services, including analytic reports or measurements of the effectiveness of Love That RV products and services, to third parties. In addition, Customer further hereby agrees that Love That RV may, and hereby grants Love That RV the non-exclusive, worldwide, irrevocable, perpetual, royalty-free right and license (with rights to sublicense) to, reproduce, use, prepare derivative works from, display and distribute any Customer Content and Listings Data for a purpose described in clauses (i) or (ii) in the preceding sentence and/or include any such Customer Content or Listings Data in any Results Report; provided, however, that all Customer Content, Listings Data, Analytics Data and/or Lead Data, whether contained in any Results Report or otherwise, that is shared, disclosed, distributed, transferred, or made available by Love That RV to a third party shall, before being so shared, disclosed, distributed, transferred or made available, be converted into an aggregated, anonymized format that does not display (A) any information that is personally identifiable information of any individual customer of Customer, (B) the financial terms of any sale made by Customer or any other information relating to a Sales Listing that is published publicly, or (C) any information that identifies the Customer.
d. Customer further agrees that, notwithstanding anything to the contrary herein, Love That RV may, and Customer expressly grants Love That RV the right to, disclose and provide to its affiliates, representatives, and applicable OEM partner, any Lead Data, including the disposition status thereof, with respect to any consumer or purchaser lead that is provided or sold to Customer by such OEM, Love That RV, or any such Love That RV affiliates or representatives.
e. Love That RV shall have a royalty-free, worldwide, transferable, irrevocable, perpetual license (with rights to sublicense) to use or incorporate into the Ordered Products/Services any suggestions, recommendations, enhancement requests or other feedback provided by Customer relating to the Ordered Products/Services.
f. During the Contract Period and for a period of six (6) months thereafter, Customer shall not (i) solicit or attempt to solicit any actual or prospective client or customer of Love That RV to purchase, license or otherwise acquire rights to use on a commercial basis any product or service that is similar in any material respect to any product or service provided by Love That RV as part of its offerings or (ii) induce or attempt to induce any customer, client or supplier/vendor of Love That RV to cease doing business with Love That RV.
g. As used herein, (i) “Intellectual Property Rights” shall mean any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide; (ii) “Brand Features” shall mean the trade names, trademarks, service marks, logos, and other distinctive brand features of a party, as secured by such party from time to time; and (iii) “Sales Listing” shall mean a classified listing relating to Customer’s inventory.
6. Confidentiality
a. During the Contract Period and for a period of three (3) years thereafter, each party (the “Receiving Party”) shall keep confidential and not disclose (except as permitted herein) the terms of the Agreement and all confidential or proprietary information, technology, materials and know-how of the other party (the “Disclosing Party”) disclosed to or acquired by the Receiving Party pursuant to or in connection with the Agreement that either is designated as confidential and/or proprietary or that should reasonably be understood, based on the nature of the information and/or the circumstances surrounding its disclosure, to be confidential and/or proprietary (“Confidential Information”). (Without limiting the generality of the foregoing, Customer expressly acknowledges and agrees that Love That RV’s Confidential Information includes the Love That RV Proprietary Materials.) In connection with the foregoing, (i) neither party shall use any Confidential Information with respect to which it is the Receiving Party for any purpose other than to carry out the activities permitted or contemplated hereunder (including provision or use of the Ordered Products/Services and any uses authorized under Section 5, as applicable), or to exercise or enforce its rights under the Agreement; (ii) each Receiving Party shall use commercially reasonable efforts to protect the Confidential Information of the Disclosing Party against any unauthorized use or disclosure, and in any event shall take precautions at least commensurate with those taken to protect its own Confidential Information of a similar nature; and (iii) each Receiving Party shall notify the Disclosing Party promptly in writing upon such party learning of any unauthorized use or disclosure of any Confidential Information of the Disclosing Party, and will cooperate in good faith to remedy such occurrence to the extent reasonably possible. The restrictions set forth in this Section 6 shall not apply to any information that: (A) was known by the Receiving Party without obligation of confidentiality before disclosure thereof by the other party; (B) was in or entered the public domain other than as a result of any breach of the Agreement by the Receiving Party; (C) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; or (D) is independently developed by the Receiving Party without use of or reference to any information disclosed by the Disclosing Party hereunder.
b. Notwithstanding Section 6(a), the Receiving Party may disclose Confidential Information or portions thereof: (i) to its officers, directors, employees, or contractors who (A) need to know such Confidential Information for a purpose described in Section 6(a)(i), (B) are informed by the Receiving Party of the confidential nature of the Confidential Information, (C) are subject to confidentiality duties or obligations to the Receiving Party that are no less restrictive than the Agreement, and (D) are directed by the Receiving Party to comply with the Agreement; (ii) to the extent permitted or contemplated under Section 5; and (iii) to the extent legally required by any applicable law, court order, or judicial process, provided that (A) the Receiving Party provides reasonable prior notice to the Disclosing Party of such requirement, (B) discloses only that portion of the Confidential Information that is strictly required by such law, court order, or judicial process, and (C) discloses such Confidential Information only to those recipients entitled to receive it under such law, court order, or judicial process.
c. Upon written request of the other party, each Receiving Party shall return to the other or destroy, at the Receiving Party’s option, all materials, in any medium, to the extent that such materials contain or reveal all or any part of any Confidential Information of the other party. Notwithstanding the foregoing, the Receiving Party shall be permitted to retain and not destroy (i) archival copies to the extent such retention is reasonably necessary to comply with applicable laws or to determine or enforce obligations under the Agreement, and (ii) copies that are automatically stored in the ordinary course of business on its or their information technology backup and disaster recovery systems.
7. Disclaimer; Limitations of Liability
a. EACH ORDERED PRODUCT/SERVICE AND ALL OTHER LOVE THAT RV PROPRIETARY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR EXPRESS WARRANTIES EXPRESSLY SET FORTH IN THE AGREEMENT, IF ANY, LOVE THAT RV DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT/SERVICE OR ANY OTHER LOVE THAT RV PROPRIETARY MATERIAL, AND LOVE THAT RV HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE ORDERED PRODUCTS/SERVICES AND THE OTHER LOVE THAT RV PROPRIETARY MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING ANYTHING IN THE FOREGOING, (i) LOVE THAT RV DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE ORDERED PRODUCTS/SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR WILL FULFILL ANY PARTICULAR NEEDS OR PURPOSES; (ii) CUSTOMER ACKNOWLEDGES THAT THE OPERATION, USE OR PERFORMANCE OF THE ORDERED PRODUCTS/SERVICES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS AND LOSSES, INCLUDING INADVERTENT LOSS OR DISCLOSURE OF DATA OR DAMAGE TO MEDIA, WHICH MAY GIVE RISE TO LOSS OR DAMAGE, AND CUSTOMER AGREES THAT LOVE THAT RV SHALL NOT BE LIABLE IN ANY EVENT ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES; AND (iii) CUSTOMER ACKNOWLEDGES AND AGREES THAT NO STATEMENTS MADE IN ANY MARKETING MATERIALS OR ANY OTHER DOCUMENTATION (OTHER THAN STATEMENTS THAT ARE EXPRESSLY SET FORTH IN THE AGREEMENT) HAVE FORMED A PART OF THE PARTIES’ AGREEMENT OR UNDERSTANDING, AND CUSTOMER IS NOT ENTITLED TO RELY ON ANY SUCH STATEMENTS IN MARKETING MATERIALS OR OTHER DOCUMENTATION.
b. IN ADDITION TO AND NOT IN LIMITATION OF ANY OTHER LIMITATION OF LIABILITY HEREUNDER, CUSTOMER ACKNOWLEDGES AND AGREES THAT (i) LOVE THAT RV SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HEREUNDER, ANY ORDERED PRODUCT/SERVICE OR ANY LOVE THAT RV PROPRIETARY MATERIAL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LOVE THAT RV SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR REVENUE, INCLUDING, BUT NOT LIMITED TO, ANY SUCH LOSSES INCURRED AS A RESULT OF LOSS OF USE OF ANY ORDERED PRODUCT/SERVICE OR ANY LOVE THAT RV PROPRIETARY MATERIAL, LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED), BUSINESS INTERRUPTION, COST OF RECOVERING SOFTWARE OR DATA OR OTHER SIMILAR COSTS); AND (ii) LOVE THAT RV’S TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND IN RESPECT OF ANY ORDERED PRODUCT/SERVICE OR LOVE THAT RV’S OBLIGATIONS UNDER THE AGREEMENT RELATING THERETO, OR THE RELATIONSHIP OF THE PARTIES HEREUNDER, REGARDLESS OF THE FORM IN WHICH ANY CLAIM MAY BE BROUGHT (INCLUDING ANY PURPORTED “CLASS ACTION” OR SIMILAR CLAIMS), SHALL NOT EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY CUSTOMER TO LOVE THAT RV UNDER THE AGREEMENT FOR THAT ORDERED PRODUCT/SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS.
c. If Love That RV is not appointed to handle the hosting of domain-name service (“DNS”) entries or domain names relating to the Customer Website(s) that constitute Ordered Products/Services hereunder (if applicable), then Love That RV shall not be responsible for any issues that may result from or relate to the hosting, including domain downtime.
8. Indemnification
a. Customer shall indemnify, defend and hold harmless Love That RV, its affiliates, and its and their respective officers, directors, employees, agents, successors, representatives, and assigns (collectively, the “Indemnified Love That RV Parties”), from and against any and all claims, proceedings and demands asserted, alleged, or brought against any Indemnified Love That RV Party by any third party (“Claims”), as well as any damages, settlements, judgments, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred in connection therewith, that arise out of or result from (i) Customer’s use of any of the Ordered Products/Services; (ii) the Customer Proprietary Information, including, without limitation, any Claim arising out of Love That RV’s receipt or use of the Customer Proprietary Materials in the manner contemplated by the Agreement or alleging that any Customer Content or Listings Data (A) infringes upon, violates or misappropriates any Intellectual Property Right of such third party, (B) violates applicable law, or (C) is inaccurate or misleading; (iii) any breach by Customer of any representations, warranties, covenants or other terms and conditions set forth in the Agreement; or (iv) Customer’s violation of or failure to comply with any applicable law or applicable OEM requirements.
b. If Love That RV determines, in its sole discretion, that the use of any Ordered Products/Services or Love That RV Proprietary Materials in accordance with the Agreement is, or may be held to be, infringing (or otherwise in violation of the Intellectual Property Rights of any person), then Love That RV may at its option and expense either (i) use commercially reasonable efforts to procure for Customer the right to continue to use the applicable Ordered Product(s)/Service(s) or Love That RV Proprietary Materials as provided in the Agreement for the remainder of the then-applicable Contract Period, or (ii) use commercially reasonable efforts to replace or modify the applicable Ordered Product(s)/Service(s) or Love That RV Proprietary Materials with a version that is non-infringing but that performs substantially similar functions. While pursuing either option, Love That RV may at its option suspend the provision of all or any part of the applicable Ordered Product(s)/Service(s) or Love That RV Proprietary Materials. If neither of the foregoing options is commercially viable in the sole judgment of Love That RV, then Love That RV may cancel its provision to Customer of the applicable Ordered Product(s)/Service(s) or Love That RV Proprietary Materials and refund to Customer any Fees pre-paid by Customer with respect thereto.
9. Term and Termination
a. The Agreement shall commence on the date that the initial Order Form is submitted by Customer and accepted by Love That RV and shall remain in effect for the duration of the Contract Period for all Order Forms between Love That RV and Customer, as such Contract Periods may be extended or renewed in accordance with Section 1(a) hereof, unless and until terminated in accordance with the terms hereof.
b. Termination.
i. Customer may terminate any Order Form at any time during the first twelve (12) months of the Contract Period only upon delivery of (A) thirty (30) days’ prior written notice of termination to Love That RV and (B) payment to Love That RV in an amount equal to (x) the number of months remaining in such initial twelve (12) month term of the Contract Period multiplied by (y) the Fees payable for the applicable Ordered Products/Services that are terminated. After such initial twelve (12) month term of the Contract Period, unless otherwise expressly set forth in the Order Form with respect to a given Ordered Product/Services, Customer may terminate any Order Form with respect to any (or all) Ordered Products/Services by providing Love That RV with written notice of termination, which termination shall be effective as of the later of (1) 30 days from the day which such notice of termination is delivered, or (2) the date specified in such notice of termination. Love That RV may terminate the Agreement or any Order Form at any time on thirty (30) days’ prior written notice of termination to Customer.
ii. In addition to the foregoing termination rights, each party may terminate the Agreement at any time by written notice to the other party if (A) the other party materially breaches the Agreement and the breach remains uncured for a period of thirty (30) days (or, if the breach is Customer’s failure to pay any required Fees, such period shall be ten (10) days) after notice of breach from the non-breaching party, (B) the other party suspends operations, (C) a petition for relief under any bankruptcy legislation is filed by the other party, (D) a petition for relief under any bankruptcy legislation is filed against the other party and not dismissed within forty-five (45) days thereafter, (E) the other party makes an assignment for the benefit of creditors, or (F) a receiver is appointed for all or substantially all of the other party’s assets. In addition to and not in limitation of the foregoing, Love That RV may terminate the Agreement (including any and all active Order Forms) immediately upon written notice to Customer if Customer, or any of its employees, agents or other representatives, engages in any conduct that Love That RV in its reasonable discretion deems offensive, inappropriate or otherwise inconsistent with Love That RV’s standards of conduct, including, without limitation, use of abusive, insulting or derogatory language with any Love That RV personnel.
c. Following termination of the Agreement for any reason, all rights and licenses granted herein shall terminate and Customer shall immediately cease use of all Ordered Products/Services (including by discontinuing use of all Love That RV Proprietary Materials) and certify to Love That RV that it has destroyed all copies of all applicable Love That RV Proprietary Materials. Notwithstanding the foregoing, termination of the Agreement shall not limit either party from pursuing any remedies available to it at the time of or in connection with such termination, nor shall such termination release Customer from its obligation to satisfy all payment obligations under the Agreement. Sections 2, 5, 6, 7, 8, 9(c), 10 and 11 shall survive any termination or expiration of the Agreement.
10. Governing Law; Dispute Resolution
The parties hereby expressly (a) agree that their respective rights and obligations shall be determined by the terms of the Agreement and (b) waive and opt out of any application of the Uniform Computer Information Transactions Act, or any version thereof, adopted in any State in any form to the maximum extent permitted by applicable law. The Agreement will be construed in accordance with and governed by the laws of the State of Utah (subject to clause (b) in the preceding sentence), without regard to principles of conflicts of law. Each party irrevocably consents to the exclusive jurisdiction and venue of any local, state or federal court that is located in the State of Utah in connection with any dispute, claim or controversy arising out of or relating to the Agreement, and waives any objections in the nature of jurisdiction or venue. In any action or other proceeding by which Customer’s account is referred to an attorney or collection agency for collection, Customer will pay for all collection fees, costs and expenses incurred by Love That RV in connection therewith. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE AGREEMENT.
11. General
a. Authority. Each party represents and warrants to the other that (i) it is duly organized, validly existing and, where applicable as a concept, in good standing under the jurisdiction of its organization, (ii) it has the full right, power and authority to enter into the Agreement and to perform its obligations hereunder, and (iii) upon the complete execution and delivery of the Agreement, the Agreement shall constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
b. Independent Contractors. The relationship of the parties hereunder is that of independent contractors. Neither Love That RV, on the one hand, nor Customer, on the other hand, has or will have any power to bind the other or to create any obligation on behalf of the other, nor shall it represent that it has any such power.
c. Promotional Matters. Love That RV may issue press releases and other marketing and promotional material describing the relationship created by the Agreement and, among other things, may display websites or products developed for or provided to Customer as examples of the service offerings available from Love That RV. Customer hereby grants Love That RV the right to use Customer’s name, trademarks, service marks and logos (i) in advertising targeted to all or any portion of Customer’s customer base in connection with the performance of the Ordered Products/Services hereunder, and (ii) in any advertising and publicity identifying Customer as a customer of Love That RV.
d. Notices. All notices and other communications to each party must be in writing and sent to the applicable address specified in the Order Form, with any such notices to Love That RV to be sent care of, (i) for routine business matters, the sales rep or client service rep assigned to Customer by Love That RV; or (ii) for material business or legal matters, Vice President/General Manager of the applicable Love That RV business line. Unless otherwise agreed, notice shall be deemed given upon (A) receipt when delivered personally, (B) written verification of receipt from overnight courier, (C) verification of receipt of registered or certified mail, or (D) verification of receipt via email.
e. Force Majeure. No party shall be deemed to be in default or otherwise liable for any delays or failure in performance of its obligations under the Agreement (other than its obligation to pay any monies owed hereunder, which shall not be excused) resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including but not limited to acts of God or nature, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, shortages in fuel, transportation facilities or materials, or failures of equipment, Internet, telecommunications facilities or third party software programs.
f. Severability; Waiver. If any term or condition hereof is found or ruled to be invalid or unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. The failure of either party to enforce any provision of the Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
g. Remedies. Except as otherwise expressly set forth in the Agreement, a party’s remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of a party’s exercise of any other remedy. Each party acknowledges that any unauthorized use or disclosure of the other party’s Confidential Information would cause the other party irreparable harm that may not be adequately compensated by monetary damages; accordingly, in addition to any other remedies available to it at law or in equity, each party will be entitled to seek injunctive or other equitable relief to prevent any actual or threatened unauthorized use or disclosure of its Confidential Information without any requirement to prove the inadequacy of monetary damages or post any bond or other security.
h. Amendment. The Agreement may not be amended or otherwise modified except by a writing signed by both parties or as otherwise expressly provided in the Agreement (such as, by way of example, in the case of Fee increases by Love That RV). If at any time after the effective date of Customer’s initial Order Form Love That RV updates its model Terms and Conditions, then as a condition to renewing any Contract Period, Customer may be required to agree to such updated Terms and Conditions. In addition, Love That RV may, at any time and from time to time during the Contract Period, propose amendments or modifications to these Terms and Conditions by delivering to Customer written notice of Love That RV’s proposed amendment or modification, which notice shall identify the sections or paragraphs hereof that are being amended. If Customer does not object to such amendment or modification by delivering to Love That RV written notice of objection within thirty (30) days after Love That RV delivers to Customer notice of the proposed amendment, then such amendment or modification will be deemed accepted and agreed to by Customer, and the Agreement and these Terms and Conditions shall be automatically amended to include such amendment or modification without any further action by the parties. If Customer validly and timely objects to the proposed amendment or modification in accordance with the preceding sentence, then Customer and Love That RV shall endeavor to negotiate a mutually acceptable amendment or modification in good faith.
i. Assignment; Continuing Obligation. The Agreement is and shall be freely assignable by Love That RV, but Customer may not assign or otherwise transfer the Agreement or any of its rights or obligations hereunder to any other person or entity without the express prior written consent of Love That RV. In addition, and notwithstanding anything to the contrary set forth in the Agreement, if another person, business or entity becomes the “Customer” under the Agreement, whether by way of a permitted assignment hereof, change of ownership of the original/current Customer hereunder, or any other means or mechanism whatsoever, then following such assignment, ownership change or other means/mechanism the original/current Customer shall nonetheless be and remain responsible for both (i) all obligations incurred by the original/current Customer hereunder prior to such change and (ii) any and all obligations (including but not limited to payment of all Fees) incurred by any such new “Customer” subsequent to such change.
j. Third Party Beneficiaries. The Agreement is not intended to benefit any third party and the parties do not intend to create, and do not and shall not be deemed to create, any third party beneficiary rights hereunder, except that each Indemnified Love That RV Party is a third party beneficiary of Section 8(a) and shall be permitted to enforce its rights thereunder.
k. Entire Agreement. The Agreement, including the Order Form and these Terms and Conditions, constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, written or oral, with respect thereto. Customer further agrees that in deciding to become a party to the Agreement, Customer has not relied upon any representations or warranties, written or oral, that are not set forth in the Agreement.
l. Marketing Communications. By entering into the Agreement, Customer consents to receive marketing messages, including emails, from Love That RV. Customer may unsubscribe from such marketing messages from Love That RV at any time by completing and submitting to Love That RV an Email Opt Out Form found on Love That RV’s website, including entering on such form the applicable Customer email address and the name of the applicable Love That RV business submitting the marketing messages.