THESE TERMS OF SERVICE ARE INCORPORATED BY REFERENCE INTO EACH WHEELHOUSE ENTERPRISES (WHLS) CUSTOMER SERVICE AGREEMENT AND CONSTITUTE AN INTEGRAL PART THEREOF. THESE TERMS OF SERVICE MAY BE AMENDED BY WHLS FROM TIME TO TIME IN ITS SOLE DISCRETION AS PROVIDED HEREIN
1. Customer Responsibilities
1.1. Use of the Services. Customer represents, warrants and covenants that in using the Services and in engaging in the offer and sale of products and services to Consumers, Customer (a) will comply with all applicable laws, rules and regulations, including but not limited to advertising, privacy, and disclosure laws, (b) will not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party, (c) will not breach any duty toward or infringe any rights of any person or entity including copyright, patent, trademark or other intellectual property rights or rights of publicity or privacy. Customer acknowledges and agrees that Leads and all WHLS services related thereto are provided to Customer on a non-exclusive basis and Customer shall not, nor shall it permit others to resell, redistribute, pass-through or sublicense any Lead or the information contained therein to any third party.
1.2. Functionality of Receipt. Customer agrees to be responsible for the ongoing operation of Customer’s chosen Lead receipt mechanisms. Customer agrees to pay for any Lead that fails to reach Customer in a timely fashion due to (a) technical failure of one or more of Customer’s Lead receipt mechanisms, or (b) failure of Customer to inform WHLS of changes in the nature or identity of one or more of Customer’s Lead receipt mechanisms (e.g. fax machine down, email address changed, etc.). Customer must notify WHLS of any disputes arising from or relating to a Lead within 4 business days of delivery of such Lead by WHLS.
1.3. License. Customer hereby grants to WHLS a non-exclusive, worldwide, royalty-free license to use Customer’s name, URL, trademarks, service marks and related assets ("Materials") for use in connection with providing the services hereunder, including, without limitation, the right to display such materials on other websites in connection with providing the Services. Materials are accepted by WHLS upon the representation that Customer has the right to publish the Materials without infringing the rights of any third party and without violating any law.
2. Term and Termination
This Agreement shall be a month to month agreement and will renew on a month-to-month basis thereafter unless Customer provides 30 days prior written notice of non-renewal. Upon expiration of the initial term for a set of Services, either Customer or WHLS may terminate this Agreement without cause on 30 days prior written notice to the other. Termination by Customer must be made in writing. This Agreement may be immediately terminated by WHLS without liability in the event Customer has failed to perform any obligation required under this Agreement and all amounts due hereunder shall become immediately due and payable.
Customer agrees to pay WHLS for Leads at the price shown in the Agreement and using the payment method shown in the Agreement in a single consolidated payment. Any lead that is credited after the close of an invoice period will be subtracted from the following months’ invoice. All prices are exclusive of and Customer shall be responsible for all applicable taxes related to the Services whether or not included on any invoice or statement. All payments to WHLS will be made in U.S. Dollars. Payments are due upon receipt. Late payments will incur a finance charge of 1.5% per month and Customer agrees to pay all costs incurred in connection with collection of past due amounts (including collection agency fees and reasonable attorney fees).
4. Limitations of Liability
THE SERVICES PROVIDED BY WHLS HEREUNDER, INCLUDING LEADS, ARE PROVIDED "AS IS" AND WHLS MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, CONCERNING THE SERVICES OR LEADS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. WHLS’S LIABILITY HEREUNDER, IF ANY, SHALL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE MONTHLY SERVICE FEE PAID BY CUSTOMER FOR THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRED. IN NO EVENT SHALL WHLS, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT OR CUSTOMERS USE OF THE SERVICES, EVEN IF WHLS HAS BEEN INFORMED PF THE POSSIBILITY OF SUCH DAMAGES.
Customer agrees to indemnify and hold harmless WHLS and its affiliates and their respective directors, officers, employees, agents and suppliers against any and all losses, liabilities, claims, awards, damages, judgments, settlements, and costs, including fees and expenses, arising out of or related to (i) Customer’s breach of this Agreement and (ii) any other act or omission by Customer or its associates.
WHLS reserves the right to amend these Terms of Service at any time, provided that WHLS shall notify Customer of any such amendments in writing, and Customer hereby consents to receipt of such written notice via email. This Agreement does not create a joint venture, partnership, employee, agency, franchise, or representative relationship between or among WHLS and Customer. Customer acknowledges that all or a portion of the Leads delivered to Customer may originate from third party suppliers. Customer may not assign this Agreement without WHLS’s prior written consent. This Agreement constitutes the entire agreement and supersedes any and all prior agreements between the parties with respect to the subject matter hereof and the terms of Customer’s purchase orders or procurement documents issued in connection with this Agreement shall not serve to modify or add to these Terms of Service. This Agreement shall be construed and enforced in accordance with the laws of the State of California. CUSTOMER AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES.