WHITERAIL REVIEWS TERMS AND CONDITIONS
This Agreement between Whiterail Reviews. (“Company”), a LLC, with a principal place of business in Portland, Oregon and Customer (collectively, “the Parties”) effective as of May 2, 2014.
1. Services Provided
By agreeing to these terms and conditions, Customer designates Company to act as an agent to provide reviews services. Specifics about this service are provided within the description of services and any additional addenda provided in association with this agreement.
2. Warranties Of Services
Customer represents and warrants that it is signing with and appointing Company to act or speak for Customer to drive and monitor social media traffic with respect to only its own products or brands. Company is not reselling or repackaging or repurposing any content provided by Company. Company’s services are provided on “as is” and “as available” basis. The accuracy or completeness of the data provided to Customer is not warrantied.
Each party agrees and warrants that it has the full power, capability, legal capacity, and legal authority to enter into, to deliver and to completely perform under this Agreement; and this party also recognizes, accepts and agrees that the other party makes no representations, warranties, or agreements related to the subject matter contained within this Agreement that are not expressly provided for in this Agreement.
EXCEPT AS EXPRESSLY SET FORTH WITHIN THIS AGREEMENT, THE SERVICE, SOFTWARE, DATA AND INFORMATION ACCESSIBLE THROUGH THE USE OF THE SERVICE ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. COMPANY EXPLICITLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Use of the Company and/or Site and its intellectual property, its data, content, and other documentation is at Customer sole risk. Customer acknowledge that the Service discussed in this document, the technology and data techniques for collecting, monitoring, and sharing internet reviews can differ from those employed by third parties. Customer acknowledges that it is their own responsibility to collect real and valid reviews from their customers / clients. Customer recognizes and acknowledges that it is Customer’s authority to determine and assess the impact of any promotional activities associated with review collection and the use of those reviews. Customer recognizes that it is Customer’s authority and responsibility to provide appropriate disclosures with any actions in relation to sharing and review collection. Customer also recognizes that sharing reviews includes risks of fraud or / and abuse that could undermine the positive effects of the Service. Company specifically disclaims any representation or warranty that the Service is suitable for use to determine or verify the accuracy of third party data.
Therefore, Customer agrees to not use or to depend upon the Service to validate or check the accuracy or inaccuracy of third party information or data. Review sites frequently employ certain policies intended to discourage certain review posting activities (the “Policies”). A Site’s individual or reoccurring violation of these Policies can at times result in certain disciplinary actions, up to and including delisting from the review sites (“Penalties”). In addition, Policies may change from time to time and from Site to Site, which could result in certain Penalties with or without any advanced notice from the review sites. Customer recognizes and acknowledges that by entering into this Agreement and contracting with Company for the purpose of providing a system of sharing of reviews, Customer site listing may be subject to Penalties, up to and including delisting from the Search Engines due to the publication activities hereunder. Such Penalties may result in a significant reduction in Customer Website’s Traffic and search engine placement and are not under the Company’s immediate or direct control.
Potential changes to the review site Content, Algorithms and Site Policies are not always completed with notice or adequate time for Company to adjust the Review Monitoring, Capturing and Publication Services in order to prevent a temporary or permanent reduction in service. In addition, competitive proceedings of third parties that quickly affect the content of reviews for your listings. Such variables could potentially lead to unpredictable fluctuations in Customer review sites, which could affect your listing on an ongoing basis.
3. Liability Limitation
EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL WHITERAIL REVIEWS, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS OR ANY SPECIFIC PARTY CONNECTED OR INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SERVICE AND/OR ITS CONTENTS BE LIABLE TO YOU FOR ANY PERSONAL INJURY OR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF DATA OR PROPERTY) ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE USE, RELIANCE ON OR TRANSFER OF ANY PROPERTY, SERVICE, INFORMATION OR DATA PROVIDED OR MADE ACCESSIBLE UNDER THIS AGREEMENT, EVEN IF COMPANY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL PENALTIES INJURY OR DAMAGES.
You agree to indemnify and hold harmless Company, its partners, officers, directors, employees, contractors representatives, successors and assigns from and against any claims, actions, requests demands, liabilities, settlements and damages including without limitation, reasonable attorneys’ fees and costs, arising from or related to your violation of this Agreement.
5. End Users Outside the US
If you are located outside the jurisdiction of the U.S., then the provisions of this Section shall apply to you: (i) this Agreement and all such related documentation will be kept in the English language (LES PARTIES AUX PRESENTES CONFIRMENT LEUR VOLONTE QUE CETTE CONVENTION DE MEME QUE TOUS LES DOCUMENTS Y COMPRIS TOUT AVIS QUI S’Y RATTACHE, SOIENT REDIGES EN LANGUE ANGLAISE); and (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Service, and you have remained in accordance with any and all regulations, restrictions or registration procedures required by such applicable law to make this Agreement and license valid and enforceable.
Customer explicitly agrees to comply with all export and import laws, regulations and restrictions govern by the United States and foreign countries, and to not in any way export, re-export or import the Service or any direct product thereof in violation of any such restrictions, or laws or regulations, or without all necessary authorizations. Neither the Service nor the underlying intellectual property, information or technology may be downloaded or otherwise exported or re-exported (i) to Iran, Iraq, Cuba, Serbia, Libya, North Korea, Sudan, Syria or any other country subject to a U.S. trade sanctions or embargo, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to any named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, Individuals, Groups or Organizations, and/or the U.S. Department of Commerce, Bureau of Industry and Security Denied Persons List or Entity List. By using the Service, Customer agrees to the foregoing and represents and warrants that it is not geographically located within an embargoed jurisdiction and is otherwise in compliance with these conditions.
We respect the privacy of our users and members. By registering and accessing or using the Site and Service, Customer consents to the transfer and processing of Customer personal information in the United States and agree to our use of Customer personal information and email address to contact Customer regarding use of the Site and the Service, and their features and services.
Company reserves the right without notice to change the terms and conditions of this Agreement without prior notice to Customer. Customer is responsible for reviewing the terms and conditions of this Agreement each time it accesses and uses the Service. Customer’s continued use of the Service constitutes Customer’s agreement to the then current terms and conditions.
9. Third Party Sites, Contents and Transactions
The Site and reports may contain links to other web sites (“Third Party Sites”) and content or materials originating from other third parties (“Third Party Content”). Such links (“Third Party Links”) are provided as a convenience to our users of the Site only. Links do not imply approval or endorsement or any sponsorship or affiliation. Customer’s use of Third Party Links, Third Party Sites and Third Party Content is entirely at their own risk. Company is not responsible for Third Party Links, Third Party Sites or Third Party Content. This agreement no longer applies after you leave our Site.
Additionally, Company may run third party advertisements, promotions or endorsements on the Site or reports for third party services and/or products. If Customer then enters into correspondence or communicates or engages in commercial transactions with third parties in connection with your use of the Site or reports, such activity is solely between Customer and the applicable third party. Any and all contracts, agreements, terms, conditions, warranties or representations related to such activity or relationships or communications are solely between Customer and the relevant third party. Company shall have no contract, liability, obligation, connection or responsibility for the result of any third party activity or the result of third-party advertisements on our Site or reports generated. Customer acknowledge and agrees that Company is not responsible or liable for any action, or inaction of any third party to a transaction, or business decisions including, but not limited to, any specific third party organization’s failure to perform, to pay any amounts due, or to deliver any merchandise or services as promised, or for any claim or liability arising from or related to any third-party transaction.
During the term of this specific Agreement and in the course of all the parties performance that the agreement applies to, the parties may receive and otherwise be exposed to certain confidential and proprietary information relating to the parties business practices, strategies, training information, sales methodologies and technologies (collectively referred to hereafter as “Confidential Information”).
Also within context of this agreement except as otherwise provided within this document and as is necessary for performance under this Agreement, the parties and their designated agents, employees and contractors agree not to reproduce any of the Confidential Information without the other party’s prior written consent; the parties within this agreement will not use the information except in the performance of this Agreement, and parties will not divulge or reveal or provide all or any part of the Confidential Information, Strategies or Intellectual Property in any form to any third party or parties or otherwise materially denigrate the other party and/or its officers or employees, either during or after the term of this Agreement. These restrictions shall not apply to information that Company or Customer can document is: (i) already held by or aware of or known by the Receiving Party, (ii) publicly known by or becomes known publically through no unauthorized act of the Receiving Party, (iii) lawfully received by them by a third party without restriction for the use or disclosure if, to the Receiving Party’s awareness or knowledge, such third party had the right legally to disclose the information, (iv) was developed independently of or by the Receiving Party without use of the Disclosing Party’s Confidential Information or Intellectual Property, (v) written pre-approval by the other party for its disclosure, or (vi) disclosed as ordered by court order, or required by law, governmental agency or rule, so long as the party that is required to disclose the information provides the other party with timely advanced notice prior to such requirement where permitted.
Both parties recognize that a breach of the discussed obligations imposed within this agreement would cause irreparable injury to the Non-Breaching Party; therefore, in the event that any or either party does breach or threatens to breach the provisions within this section, the other party, in addition to any other remedies it may choose, shall be entitled to seek preliminary and perpetual injunctive relief without the necessity of posting a bond.
Customer is in agreement not to directly or indirectly in any way: (i) rent, redistribute, sell, lease, lend, give, sub-lease, sub-license, donate or otherwise transfer the Service, or the right to access and use the Service, to any third party without the prior express written consent of Company; (ii) remove, hide, reduce or obscure Company’s copyright, trademark and other proprietary rights logos, notices, legends, symbols or labels; (iii) alter, modify, deconstruct, decompile, disassemble, create any derivative works of the Service, including customization, translation or other localization, or reverse engineer or otherwise attempt to derive the source code for the Service (with the exception where expressly permitted by local law); (iv) to leverage or utilize the Service in connection with any type of service bureau or time-sharing system or to provide any type of processing services for any third party; (v) allow or give access to this Service to any other person to access and use this Service via a LAN, WAN or other network of computers; (vi) use the Service or its aggregated compiled data for the development of or in connection with a Service application or system or service that has the same or substantially similar types of features and/or functions to the Service; and (vii) use the Service for any type of unlawful purpose.
The Service and the Site, its software, intellectual property, campaigns, copy, content and its databases and compilations of aggregated data, all copies thereof, and associated trademarks are protected under United States Copyright Law, International Treaty, trade secret, trademark and other applicable laws. You agree not to copy, reproduce, publicly distribute, transmit or display the Site and/or Service, or all or substantially all of the content of any database without the express written consent of Company.
a. For users missing a prepaid subscription agreement, Company reserves the right to terminate access / suspend use of the Company system / service, the Service and this Agreement, in whole or in part, at any time with or without notice.
b. For users with a prepaid subscription, Company reserves the right to terminate access / suspend use of Whiterail Reviews and/or the Service upon discovery of a material breach by you (or by your employer, if applicable). This termination / access / suspension of site/service will coincide concurrently with the termination of the subscription agreement (according to its terms). The provisions of Sections Copyright, Ownership, Warrenties Disclaimer, Liability Limitation, Indemnity, and General shall survive termination of this Agreement.
This Agreement is governed by the laws of the State of Oregon. Disputes relating to this Agreement will take place in the state or federal courts of Multnomah County, Oregon, and the parties consent to exclusive jurisdiction and venue. Should any provision of this Agreement be judged invalid or unenforceable, the remaining document will remain valid and enforceable according to the original intentions of the parties. The prevailing party of any legal action or legal proceeding to enforce the terms of this Agreement for Whiterail Reviews and its intellectual property will be entitled to receive compensation of an award of its reasonable attorneys’ fees, costs and other expenses. This Agreement contains the comprehensive and complete legal agreement for Whiterail Reviews and its intellectual property between the parties with respect to the subject matter hereof. This Agreement may not be modified or amended in any way except in writing signed by a legal authorized officer of Company. No portion of this Agreement may be invalidated or waived except in writing signed by the party to be charged. No exception or waiver of any default or violation will constitute an exception or waiver of any subsequent default or violation of the same or other provision. All communications, notices and approvals given under this Agreement must be done so in writing and delivered via the following methods: in person, first class mail, express mail, facsimile with confirmation of transmission, or email. Notice will be deemed given when received when provided in according to this Section. This Agreement will be consider binding upon and inure to the benefit of the parties of this agreement and their permitted successors and assigns. This Agreement, the content contained within and the rights granted as provided for under the terms of this document may not be assigned without the express written consent of Company. Regarding the organization of this document and the section headings of this Agreement are provided for purposes of convenience only and will have no effect in the interpretation or meaning of any such provision. The Parties contained within this document agree that this Agreement may be executed in multiple counterparts, for which each counterpart will be deemed to be an original, but all of which collectively will constitute one and the same instrument. For purposes contained within this document, a facsimile or PDF of the executed copy of this Agreement will be deemed and considered to be an original.
15 Payment Terms
Usage of the Whiterail Reviews platform constitutes acceptance and our terms and conditions including monthly payment in full. In the case of collections for fees, Customer agrees to pay all costs of collection, including attorneys’ fees and expense.
Late Payments. Any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of one and a half percent (1.5%) of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Customer shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments.
Failure to Pay/Customer Conduct. Whiterail Reviews may suspend or terminate Customer’s and Users’ access to the Whiterail Reviews Platform, at Whiterail Reviews’ sole option, with notice to Customer, if: any payment is delinquent by more than ten (10) days after notice of late payment from Whiterail Reviews and such suspension or termination shall continue until payment of all amounts owed are received, and such suspension or termination will continue until the applicable issue is resolved and payments are made.