Terms and Conditions
Listings Service Agreement Standard Terms and Conditions
THIS IS A LEGALLY-BINDING AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY.
1. Acknowledgement & Acceptance of Agreement
1.2. Pursuant to this Agreement, Advertiser submits business Business Listing(s) and/or link(s) to, its web site(s) for inclusion on LISTWITH.BEST’s web site. The terms and conditions applicable are set forth below.
1.3. Basic inclusion of a website title, description and URL (‘Business Listing’) on the LISTWITH.BEST site are sold on an inclusion basis for a one time, non-refundable setup fee and an annual renewal fee. THE SETUP FEE IS IN CONSIDERATION FOR LISTWITH.BEST’S EDITORIAL REVIEW OF THE BUSINESS LISTING SUBMISSION AND IS THEREFORE NON-REFUNDABLE, EVEN IN THE EVENT THAT LISTWITH.BEST DECLINES TO INCLUDE ADVERTISER’S BUSINESS LISTING. LISTWITH.BEST may, in its sole discretion, change the setup or annual renewal fee at any time.
1.4. Following submission by Advertiser of a Business Listing submission form, LISTWITH.BEST will review the Business Listing entry containing the information submitted by Advertiser regarding its website, to determine whether Advertiser’s Business Listing entry and applicable web site is eligible for inclusion in LISTWITH.BEST. Within five (5) business days from the date the Business Listing submission form is received by LISTWITH.BEST, LISTWITH.BEST will review Advertiser’s Business Listing entry inclusion to determine whether it is eligible for inclusion in LISTWITH.BEST.
2. Notification of Changes
2.1. LISTWITH.BEST may, at any time in its sole discretion, change the terms of this Agreement. Modifications may include, without limitation, increases to the annual fees charged for the Listing Services. Whenever LISTWITH.BEST changes this Agreement, it will post those changes to its Web Site and will update the ‘Last Updated’ date at the top of this Agreement. The revised terms will become effective on the date LISTWITH.BEST posts such changes to its Web Site, except annual fee increases will become effective at the time your annual Agreement automatically renews.
2.2. It is your obligation to check this Agreement regularly to ensure you are updated as to any changes. Without limiting the foregoing, if LISTWITH.BEST determines in its sole discretion that the modification is material, it may or may not notify you electronically via the email address associated with each account. If any modification to this Agreement is not acceptable to you, your only remedy is to notify LISTWITH.BEST of your election not to renew your Agreement, as provided in Section 3 below.
3. Term of Agreement
3.1. LISTWITH.BEST may, at any time in its sole discretion, with or without cause, terminate this Agreement and/or cancel any listings or links submitted under this Agreement.
3.2. Auto-Renewal: Advertiser’s Business Listing subscription will be automatically renewed for successive one-year terms, unless Advertiser notifies LISTWITH.BEST by sending an email with the words ‘CANCELLATION’ in the subject line to [email protected] Advertiser shall deliver such notice at least thirty (30) days prior to the commencement of the next renewal term. If LISTWITH.BEST is unable to process Advertiser’s credit card payment because the credit card has expired or is otherwise invalid, then LISTWITH.BEST may contact Advertiser to obtain payment information and/or cancel Advertiser’s subscription and/or run the credit card with updated expiration date.
3.3. The cost of the renewed Listing will be the then-current standard rate. Advertiser’s credit card will be charged the non-refundable renewal fee in accordance with the terms of this Agreement.
4. Service Fees and Payment Terms
4.1. Advertiser agrees to pay all applicable charges under this Agreement, including any applicable taxes or charges imposed by any government entity. If Advertiser disputes any charge made under this Agreement, Advertiser must notify LISTWITH.BEST in writing within sixty (60) days after any such charge; failure to so notify LISTWITH.BEST shall result in the waiver by Advertiser of any claim relating to any such disputed charge. Charges shall be calculated solely based on records maintained by LISTWITH.BEST. No other measurements or statistics of any kind shall be accepted by LISTWITH.BEST or have any effect under this Agreement.
4.2. Fees: Advertiser agrees to pay all applicable charges under this Agreement, including any applicable taxes or charges imposed by any government entity. If Advertiser disputes any charge made under this Agreement, Advertiser must notify LISTWITH.BEST by sending a detailed notice of dispute to LISTWITH.BEST via email at: [email protected] within ten (10) days of the charge; failure to so notify LISTWITH.BEST shall result in the waiver by Advertiser of any claim relating to any such disputed charge. Charges shall be calculated solely based on records maintained by LISTWITH.BEST. No other measurements or statistics of any kind shall be accepted by LISTWITH.BEST or have any effect under this Agreement. All payments made under this Agreement are non-refundable.
4.3. Late Payments: Any charges which are past due by more than thirty (30) days shall bear interest at the rate of one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, and Advertiser shall reimburse LISTWITH.BEST for any costs and fees (including attorneys’ fees) incurred by LISTWITH.BEST in an effort to collect any amount due hereunder.
4.4. Disputes: If Advertiser has any questions or objections regarding charges to its credit card, it must promptly (within 30 days) notify LISTWITH.BEST in writing (including electronic mail) and make a reasonable and good faith effort to resolve its objection before it disputes the charge with the credit card processing company. Such notice must identify the amount in dispute and must provide in reasonable detail the basis for disagreement with any charges. If (a) Advertiser fails to comply with these requirements BEFORE filing a dispute with the credit card processing company, or (b) advertiser files a dispute with the credit card processing company that is not in good faith, Advertiser will be in material breach of this Agreement and LISTWITH.BEST will be entitled to liquidated damages calculated as follows in addition to any equitable remedies available to it. Liquidated damages may include but not be limited to: all fees accrued up to the termination of this Agreement, plus attorney fees and costs, plus late fees on the foregoing at the legal rate of interest. For purposes of this paragraph, disputing payment because of inability to pay or because of Advertiser’s failure to submit a proper notice of non-renewal by the applicable date shall not be considered to be a good faith dispute.
4.5. Payment Method: To maintain a Listing account with LISTWITH.BEST, Advertiser must maintain a valid Visa, MasterCard or American Express credit card number on file with us. Advertiser’s credit card will be charged upon submission and renewal of a Listing pursuant to Section 6 below. Listing accounts are renewed on an annual basis as set forth in Section 6. Advertisers are generally required to pay for Listings by the credit card method.
5. Editorial Standards and Requirements
5.1. Advertiser’s Listing entries are written by LISTWITH.BEST, or written by Advertiser subject to LISTWITH.BEST’s approval. Advertiser agrees to be bound by and follow the LISTWITH.BEST editorial standards as described in LISTWITH.BEST’s Editorial Guidelines. Advertiser’s submissions to the LISTWITH.BEST site will be subject to LISTWITH.BEST editorial review, modification and/or removal in LISTWITH.BEST’s sole discretion. LISTWITH.BEST reserves the right, but not the obligation, to review Advertiser submissions.
5.2. ADVERTISER REPRESENTS AND WARRANTS THAT ITS LISTINGS, LINKS AND SUBMISSIONS TO THE LISTWITH.BEST SITE DO NOT, AND WILL NOT INCLUDE CONTENT, OR LINKS TO CONTENT, WHICH MAY RESULT IN A CLAIM AGAINST, OR CIVIL OR CRIMINAL LIABILITY TO, LISTWITH.BEST OR THAT OTHERWISE VIOLATES APPLICABLE LAW OR THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTENT THAT IS FRAUDULENT, DECEPTIVE, LIBELOUS, DEFAMATORY, OBSCENE, PORNOGRAPHIC, ADULT-THEMED, INFRINGING OR THAT VIOLATES THE PRIVACY, PUBLICITY OR ANY OTHER RIGHT(S) OF A THIRD PARTY.
5.3. ADVERTISER HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS LISTWITH.BEST AND ITS AFFILIATES AND PARTNERS, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, SHAREHOLDERS, AGENTS, LICENSEES AND EMPLOYEES, FROM AND AGAINST ALL THIRD PARTY CLAIMS, ACTIONS, LIABILITIES, LOSSES, EXPENSES, DAMAGES, AND COSTS INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES (COLLECTIVELY, ‘LOSSES’) THAT MAY AT ANY TIME BE INCURRED AS A RESULT OF ANY THIRD PARTY CLAIMS, SUITS OR PROCEEDINGS: (A) ARISING OUT OF ANY BREACH BY ADVERTISER OF ANY DUTY, REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT; OR (B) ARISING FROM THE CONTENT OR SUBJECT MATTER OF ANY ADVERTISER LISTING, LINK, SUBMISSION OR CONTENT OF SITES TO WHICH VISITORS CAN LINK THROUGH ADVERTISER’S LINKS OR LISTINGS. LISTWITH.BEST RETAINS COMPLETE EDITORIAL DISCRETION WITH RESPECT TO ALL LISTINGS AND LINKS, INCLUDING, WITHOUT LIMITATION, REGARDING THE SELECTION, PLACEMENT, KEYWORDS, TITLE, DESCRIPTIONS AND MULTILINKS.
6.1. LISTWITH.BEST endeavors to protect the security of Advertiser’s payment information during transmission by using Secure Sockets Layer (‘SSL’) when receiving payment information through the LISTWITH.BEST website. It is important for Advertiser to protect against unauthorized access to your password and your computer. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and Advertiser agrees to accept full responsibility for all activities conducted using Advertiser’s account on LISTWITH.BEST.
7. Registration Information
7.1. In connection with the Listing program, Advertiser is required to submit registration information. LISTWITH.BEST may use such information to contact Advertiser regarding its listings and links. LISTWITH.BEST may disclose such information to its third party vendors and service providers in connection with conducting its business and providing and maintaining its site, and, in addition, in the good faith belief that such disclosure is reasonably necessary to (a) comply with the law or legal process; (b) enforce this Agreement; or (c) protect the rights or interests of LISTWITH.BEST, its affiliates or related parties. Notwithstanding anything to the contrary herein, LISTWITH.BEST may transfer, sell or assign such information to third parties as a result of a merger, consolidation or combination of LISTWITH.BEST with another entity.
8.1. Advertiser hereby grants to LISTWITH.BEST a worldwide, limited, non-exclusive, non-transferable, royalty-free license to: (i) reproduce, distribute, transmit, display, perform, download, cache, store on its servers, and otherwise use Advertiser’s listings and submissions, and any portion thereof, including, without limitation, the trademarks, trade names, service marks and logos set forth therein, or as otherwise specified in writing by Advertiser (collectively the ‘Advertiser Marks’), for purposes of providing the services covered by this Agreement; and (ii) incorporate in LISTWITH.BEST’s sites links provided by Advertiser as part of its listings and submissions.
9. Warranty Disclaimer
9.1. NEITHER LISTWITH.BEST NOR ITS SUPPLIERS OR VENDORS MAKE ANY WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE. LISTWITH.BEST’S OBLIGATIONS UNDER THIS AGREEMENT ARE SUBJECT TO DELAYS CAUSED BY WAR, TERRORISM, ACT OF GOD, EMBARGOES, OR ANY OTHER CIRCUMSTANCES BEYOND LISTWITH.BEST’S REASONABLE CONTROL. ADVERTISER ACKNOWLEDGES THAT LISTWITH.BEST’S SITE IS OPERATED ON AN ‘AS IS’, ‘AS AVAILABLE’ BASIS, AND THAT NEITHER LISTWITH.BEST NOR ITS SUPPLIERS OR VENDORS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER REGARDING THE PLACEMENT OF LISTINGS OR LINKS OR THE PERFORMANCE OR SECURITY OF ITS WEB SITE OR SERVICES.
10. Limitation of Liability
10.1. IN NO EVENT SHALL LISTWITH.BEST OR ANY OF ITS SUPPLIERS, VENDORS OR AFFILIATES BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST OPPORTUNITIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND REGARDLESS OF THE CAUSE OF ACTION UPON WHICH ANY SUCH CLAIM IS BASED. IN NO EVENT SHALL LISTWITH.BEST’S LIABILITY FOR ANY REASON WHATSOEVER EXCEED THE FEES PAID TO LISTWITH.BEST BY ADVERTISER UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD PRIOR TO THE TIME THE APPLICABLE CLAIM ACCRUED.
11.1. In no event shall Advertiser collect, or cause or permit the collection of, any Personal Information (as defined below) from users of LISTWITH.BEST’s site while such users are browsing or viewing LISTWITH.BEST’s sites, or place any file or code, including cookies, on the personal computers of users of LISTWITH.BEST’s sites while such users are browsing or viewing LISTWITH.BEST’s sites. LISTWITH.BEST’s privacy policies shall apply to users of LISTWITH.BEST’s Web Site while users are browsing or viewing LISTWITH.BEST’s site, and Advertiser shall comply with same. LISTWITH.BEST shall own all information relating to user access to LISTWITH.BEST’s site, including, but not limited to, all Personal Information, demographics and usage information gathered therefrom. ‘Personal Information’ includes an individual’s name, address, e-mail address, age, date of birth, credit card or other financial information, or any other contact or personal information about an individual or from which the personal information about an individual can be derived.
12. Reservation of Rights
12.1. Advertiser agrees that LISTWITH.BEST retains all right, title and interest in and to LISTWITH.BEST’s technology, services and other intellectual property rights. Advertiser agrees that it will not reproduce, distribute, alter, modify, copy, edit, format, create derivative works of or otherwise use any materials, content or technology provided by LISTWITH.BEST, except as explicitly provided herein or approved in advance in writing by LISTWITH.BEST.
13.1. LISTWITH.BEST reserves the right, in its sole discretion, to (i) remove Advertiser’s Listing and/or cancel Advertiser’s account for any reason or no reason; (ii) change the fees for Listing; (iii) change the procedures or rules for obtaining or maintaining a Listing; (iv) alter the content or other aspect of any Listing; and (v) discontinue Listing and/or the LISTWITH.BEST Directory or website. Payment of Advertiser’s fee will not guarantee that Advertiser’s listing(s), link(s) and/or account will remain on the LISTWITH.BEST Directory or website if Advertiser or Advertiser’s listing is deemed to be in violation of any term or condition of this Agreement. Upon any termination or expiration of this Agreement, Advertiser shall promptly pay LISTWITH.BEST all moneys due hereunder.
13.2. Receipt times of all submissions, notices and other correspondences and transactions via the LISTWITH.BEST site are measured based on receipt by LISTWITH.BEST’s servers. This Agreement: (a) shall be governed by and construed in accordance with, the laws of the State of California, without giving effect to principles of conflicts of law; (b) constitutes the complete and entire expression of the agreement between the parties with respect to the subject matter hereof; and (c) shall supersede any and all other agreements, whether written or oral, between the parties, including, without limitation, any print, online and electronic promotional materials. All waivers hereunder by LISTWITH.BEST must be expressly made in writing. Should any provision of this contract be held to be void, invalid, or inoperative, such provision shall be modified to reflect the fullest enforceable intent of the parties, or if such modification is not possible, severed, and the remaining provisions of this contract shall not be affected and shall continue in full force and effect. Exclusive venue for all disputes arising out of or related to this Agreement shall be the state and federal courts located in San Diego County, California, and each party hereby irrevocably consents thereto. Any rights or obligations hereunder may not be transferred or assigned by Advertiser without the prior written consent of LISTWITH.BEST. LISTWITH.BEST may freely assign and delegate the Agreement and any of its rights and obligations hereunder.