OpticTour PowerListings Terms and Conditions
(Last Updated November 14, 2014)
This Service Agreement (this “Agreement”) is a legal agreement between Optic Tour, a division of Black OPS Group LLC (“OpticTour”, “us” or “we”), and the business by which the individual accepting this Agreement is employed or otherwise engaged (the “Client” or “you”). OpticTour and Client are each referred to herein as a “Party,” and collectively as the “Parties.” This Agreement governs in its entirety the relationship between OpticTour and the Client in connection with the OpticTour PowerListings Service (the “Service”).
1. Description of the Service.
1.1 Overview. OpticTour will provide Client with a subscription to the Service, which will enable Client to: (i) view and manage its business listing information on various third party business directories and search engines that participate in the Service (the “Listing Partners”) and (ii) purchase a one-year placement of highlighted “special offer” content (the “Special Offer Placements”) on Listing Partner websites (the “Listing Partner Sites”).
1.2 Special Offer Placements. Client may purchase Special Offer Placements on various Listing Partner Sites. Each Special Offer Placement will consist of: (i) a graphical tag icon that highlights Client’s listing whenever its listing appears on a Listing Partner Site (but does not affect listing placement on the Listing Partner Site) and (ii) associated content that has been designated by you to be published with the tag icon, subject to the Listing Partners’ character limits and other applicable listing tag policies.
1.3 Limitations. You hereby acknowledge and agree that (i) the Listing Partner Sites included in any bundle of Special Offer Placements are subject to change at any time and that Listing Partner Sites can be added and/or removed from any such bundle at any time, (ii) all content submitted by you for a Special Offer Placement shall be subject to the Listing Partners’ character limits, quality standards and other applicable listing tag policies, and that any such content may be rejected, in whole or in part, by a Listing Partner at any time in its sole discretion, or modified at any time to comply with such policies, (iii) OpticTour does not guarantee that any listing or tag will be displayed on any Listing Partner Site and (iv) the appearance and/or location of any listing tag placement may change at any time. OpticTour SHALL HAVE NO LIABILITY FOR ANY CHANGE IN THE LISTING PARTNER SITES INCLUDED IN ANY BUNDLE, FOR ANY DECISION BY A LISTING PARTNER TO REJECT OR MODIFY ANY CONTENT SUBMITTED BY YOU, OR FOR ANY OTHER DECISION, CHANGE OR OTHER ACTION DESCRIBED IN CLAUSES (i), (ii), (iii) OR (iv) OF THE PRECEDING SENTENCE.
2. Fees and Payment.
2.1 Fees. By registering for the Service, you agree to any fee and payment terms that are described herein and/or during the online registration process for the Service. Any Service fees are exclusive of any sales or other taxes (other than taxes on OpticTour’s income).
2.2 Provision of Credit Card Information; Payment Terms. You will be required to provide OpticTour with a valid credit card number upon registration for the Service. You hereby warrant and represent that you have the authority to provide such credit card information to OpticTour and shall be responsible for all changes made thereto. OpticTour will bill your credit card in advance of each Billing Period (as defined below) for the fees incurred for such Billing Period, as well as for any outstanding balances. Your “Billing Period” will be specified by OpticTour at the time of registration for the Service, though OpticTour reserves the right to change the term of future Billing Periods at any time. Any and all late payments shall accrue interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by law, whichever is less). In addition, you are responsible for paying any reasonable expenses and attorneys fees that we incur in connection with collecting late amounts.
3. Use of the Service.
3.1 License. OpticTour hereby grants Client a limited, non-exclusive, non-transferable right and license to access and use the Service solely in connection with Client’s legitimate business needs. This license will terminate in the event this Agreement expires or is terminated pursuant to Section 4, in which case Client will immediately cease any further use of the Service.
3.2 Ownership. The Service is the copyrighted work of OpticTour and/or its various third party licensors and partners.
3.3 Trademarks. The trademarks, service marks, logos and any designs used or displayed on the Service are trademarks and/or service marks owned by OpticTour or its licensors. Nothing in this Agreement shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any OpticTour trademark displayed on the Service without OpticTour’s prior, written permission in each instance. The appearance of any third-party trademarks does not in any way imply any connection, license, approval or other such relationship of any kind with such third party.
3.4 Usage Restrictions. Client’s use of the Service is limited solely to those rights granted in Section 3.1. Client shall not copy, prepare derivative works, decompile or reverse engineer the Service. Client will not remove any trademark, copyright, or other proprietary rights notices which appears on the Service. In addition, Client will not use the Service for any unlawful or fraudulent purpose including, but not limited to: (a) impersonating any person or entity or (b) harvesting or collecting any personal information in violation of applicable law.
3.5 License to Client Content. Client hereby grants OpticTour a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of OpticTour’s business), perpetual, irrevocable right and license to use, copy, publish, distribute, syndicate, reformat and update (for example, to improve accuracy and/or standardize formats) any and all listing content, Special Offer content and other content that Client provides in connection with its use of the Service. OpticTour may sublicense this right to any Listing Partners and other online partners. This license will survive any termination or expiration of this Agreement.
3.6 License to Client Marks. Client hereby grants OpticTour a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of OpticTour’s business) right and license to use Client’s marks on any of OpticTour’s websites or other marketing materials to indicate your participation in the service. OpticTour may sublicense this right to any of Listing Partners and other online partners. In the event of any termination or expiration of this Agreement, OpticTour will use commercially reasonable efforts to remove your marks from OpticTour’s websites and marketing materials within a reasonable period of time, and to instruct OpticTour’s online partners to do the same.
4. Term and Termination
4.1 Term. This Agreement is effective as of the date you register for the Service and shall remain in full force and effect until terminated by either party in accordance with this Section 4.
4.2 Termination by Client. Client may terminate this Agreement and disconnect your Service at any time for convenience upon notice to OpticTour (which may be provided by email).
4.3 Termination by OpticTour. We may terminate this Agreement and disconnect your Service at any time for convenience at any time upon notice (which we may provide by email).
4.4 Survival. Upon any termination or expiration of this Agreement, Client will pay OpticTour the Fees for each month that has commenced prior to the effective date of such termination or expiration. The following provisions shall survive any termination of this Agreement: Section 3.4 (“License to Client Content”), this Section 4.4 (“Survival”), Section 5 (“Disclaimer and Limitation of Liability”), Section 6 (“Indemnification”), Section 7 (“Representations and Warranties”) and Section 8 (“General Provisions”).
5. Disclaimer and Limitation of Liability.
THE SERVICE AND ANY OTHER SERVICES PROVIDED BY OpticTour IN CONNECTION WITH THIS AGREEMENT ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, OpticTour MAKES NO, AND DISCLAIMS ALL, WARRANTIES (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR OTHERWISE. OpticTour AND OTHER WEBSITES, DATABASES AND/OR THIRD PARTY PROGRAMS CONTAINED WITHIN THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. OpticTour HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF, OR INABILITY TO USE, OpticTour WEBSITES, DATABASES AND/OR PROGRAMS. OpticTour DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS, PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF OpticTour’S WEBSITE, DATABASES AND/OR PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT SHALL OpticTour OR ANY LISTING PARTNER BE RESPONSIBLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF OpticTour HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OpticTour WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT, AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND OpticTour’S CONTROL. IN ADDITION, AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, OpticTour’S LIABILITY UNDER ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO $500. To the extent any liability of OpticTour cannot be disclaimed, excluded or limited under applicable law, such liability shall be disclaimed, excluded and limited to the fullest extent permitted under applicable law.
Client will defend, indemnify, and hold harmless, OpticTour, its third party licensors and Listing Partners, and its affiliates, and each of its and their respective officers, directors, members, managers, employees, sublicensees, contractors and agents (collectively, “Indemnified Parties”) from and against any and all claims, actions, losses, liability, damages, fines, costs, and expenses (including reasonable attorney’s fees and expenses) arising from or related to: (a) any breach of the Agreement by you (including, but not limited to, any representations and warranties made herein); (b) any violation of any law or regulation arising from or in connection with your participation in the Service; (c) any allegation arising from or relating to any listings or other content provided by you, including, but not limited to, any allegation that any listings content, Special Offer content or other content provided by or on behalf of you infringes or otherwise violates any trademark, trade name, service mark, copyright, license, trade secret, right of privacy or publicity or other intellectual property or proprietary right of any third party, constitutes false advertising, is defamatory and/or is in violation of any law or regulation; (d) any claim by any third party related to you or your products or services; and/or (e) any third party dispute with you, any injury suffered by a third party at your place of business or any other related issue.
7. Representations and Warranties.
You represent, warrant and covenant that at all times during the term of this Agreement:
(a) the individual accepting this Agreement is authorized to act on behalf of you and to bind you to this Agreement;
(b) you have the full power and authority to conduct your business, to enter into this Agreement, and to perform your obligations under this Agreement;
(c) your execution, delivery and performance of this Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which you are subject; (ii) any order, judgment or decree applicable to you; (iii) any provision of your organizational documents; or (iv) any agreement or other instrument applicable to you; and
(d) you will comply with all applicable federal, state and local laws, rules, regulations, court orders, judgments and decrees.
8. General Provisions.
8.1 Confidentiality. You may not disclose the terms or conditions of this Agreement any third party, except to your professional advisors under a strict duty of confidentiality or as necessary to comply with applicable laws or regulations.
8.2 Notices. All notices to OpticTour shall be sent to OpticTour at P.O. 500 E Whitestone Blvd #2661 Cedar Park, TX 78613, attention CEO. Any notices to Client may be effected by sending an email to the email address specified in Client’s Inbox or by posting a message to Client’s Inbox, and shall be deemed received when sent (for email) or twenty-four (24) hours after having been posted (for messages in Client’s Inbox).
8.3 Policies. Client’s participation in the Service shall be subject to all applicable OpticTour policies including, without limitation, the Privacy Policies posted on any Web Site on which Client listings are published, and any applicable Web Site specification requirements (collectively, “Policies”). The Policies may be modified by OpticTour at any time. The latest Policies can be found on any of OpticTour’s websites. You should review the Policies regularly. By your continued participation in a Service, you agree to all of the associated terms and conditions contained within the Policies effective at that time.
8.4 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, the affected Party’s performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
8.5 Waiver. The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party.
8.6 No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to imply or constitute either Party as the agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
8.7 Governing Law and Forum. This Agreement, and any disputes arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its choice of law provisions. Each of the Parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Travis County, Texas for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts.
8.8 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof. OpticTour may modify the terms of this Agreement at any time without liability, and your use of the Service after notice that the terms of this Agreement have changed constitutes your acceptance of the new terms.
8.9 Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
8.10 Costs, Expenses and Attorneys’ Fees. If either Party commences any action or proceeding against the other Party to enforce or interpret this Agreement, the prevailing Party in such action or proceeding shall be entitled to recover from the other Party the actual costs, expenses and reasonable attorneys’ fees (including all related costs and expenses), incurred by such prevailing Party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.
(Last Updated November 14, 2014)