1.1. In General. The elmont.org service offering of a paid directory listing service (hereinafter, the "Service") is owned and operated by Ahcarak Consulting, LLC. (hereinafter, "ACLLC") and is provided to you and your business (hereinafter, "Company") under the terms and conditions of this Directory Listing Service Agreement and any amendments, supplements or changes thereto as may be adopted from time to time (collectively, this "Agreement").
1.2. Account Registration. By completing the account registration process and clicking the "Send" button, Company agrees to be bound by this Agreement. Company represents and warrants that the representative for Company agreeing to be bound by this Agreement is 18 years old or older. If Company is a partnership, corporation or other entity, the person agreeing to be bound on behalf of such entity represents and warrants that such person has the authority to enter this Agreement on behalf of Company. If any information provided by Company is untrue, inaccurate, not current or incomplete, ACLLC has the right to terminate Company's account and refuse any and all current or future use of the Service.
2.1 The Service. The Service may include the offering of an ability for companies to create and maintain company information and profiles (each, a “Company Profile”) on servers controlled by ACLLC, other services on the World Wide Web, access to software to facilitate the creation and maintenance of a Company Profile, and the ability to enter into a Company Profile certain information (hereinafter, "Information"). Although some services and membership plans of ACLLC may not have an actual Company Profile, such services and membership plans are still covered by this definition. ACLLC reserves the right, in its sole discretion, to change, modify, add or remove all or part of this Agreement at any time.
2.2. Information. Information is defined as anything that is in Company's Company Profile, whether it is entered directly by Company, ACLLC, a third party, or otherwise, and whether it is information, material, content, images, or any other data or communication, electronic or otherwise, such as, but not limited to, press releases, emails, job postings, and product descriptions.
3.1. Company Responsible. Company agrees that Company, and no other entity, bears 100% of the responsibility for entering and maintaining Information in Company's profile and all acts or omissions that occur with regard to the Service or in connection with Company's account or password, and Company shall maintain and update all Information so it is always true, accurate, current and complete. Company agrees and acknowledges that ACLLC is not responsible for any loss, damage or corruption of any of the Information, and that ACLLC is not responsible for Information being true, accurate, current, or complete. However, and not in limitation of the foregoing agreement as to Company’s responsibility, Company agrees that ACLLC has editorial discretion with regard to the presentation of the Service and so to Information forming a part thereof.
3.2. Company Representations and Warranties. Company represents and warrants that it will not engage in any activities: (1) that violate appropriate community standards, or constitute or encourage a violation of any applicable law or regulation, including, but not limited to, the sale of illegal goods or the violation of export control or obscenity laws; (2) that defame, impersonate or invade the privacy of any third party or entity; (3) that infringe the rights of any third party, including, but not limited to, the intellectual property, business, contractual, or fiduciary rights of others; and (4) that are in any way connected with the transmission of "junk mail" "spam" or the unsolicited mass distribution of e-mail, or with any unethical marketing practices.
3.3. ACLLC Right to Refuse or Terminate. ACLLC reserves the right to refuse or terminate Service provided to Company if ACLLC believes, in its sole discretion, that Company: (1) offers for sale goods or services, or uses or displays Information that is illegal, obscene, vulgar, offensive, dangerous, or is otherwise inappropriate; (2) has become the subject of a government complaint or investigation; or (3) has violated or threatens to violate the letter or spirit of this Agreement.
4.1. Software. In connection with providing the Service, ACLLC also provides to Company certain software (the “Software”) in object code form on a server controlled by ACLLC. Company acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that ACLLC does not commit to support any particular browsing platform. ACLLC reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to Company. If any revision or modification to the Software materially changes Company's ability to conduct business, Company's sole remedy is to terminate this Agreement pursuant to Section 6.2 regarding non-renewal of service.
4.2. Intellectual Property. Company acknowledges and agrees that content available from ACLLC or the Service, including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, and video, may be protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than consistent with such ownership interests.
4.3. Company's Property. Company agrees that by using the Service, Company grants to ACLLC, and its parents, subsidiaries, affiliates, successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Company's copyrights and other intellectual property rights, if any, in all Information in Company's profile to use, distribute, display, reproduce, sell and create derivative works from all or part of such Information in any and all media and in any manner and on or to any property or entity, including but not limited to any ACLLC property and that of any third party. Company also grants to ACLLC the right to maintain Information on ACLLC's servers during the term of the Agreement and to authorize the downloading and printing of Information, or any portion thereof, by end users for their personal use.
4.4. Unauthorized Access. Company shall not attempt to gain unauthorized access to any servers controlled by ACLLC.
5.1. Fees. Company shall pay to ACLLC a Recurring Annual Fee in an amount described in paragraph 5.3 below and such amount will be charged to Company's credit card, with the first payment due on the Start Date (as defined in Section 6.1) and subsequent payments due on an annual basis from the Start Date. Thereafter, Company's service plan will auto-renew every year at the then-current rate. ACLLC may, but has no obligation to, make available, one or more special discount offerings on the service fee. Any such special offerings will revert to the non-discounted and then-current price at the end of the term and will continue unless separately cancelled.
5.2. Other Charges. Other charges may be incurred and charged to Company's credit card entered in Company's account based on additional services the Company may choose to use during the then current term of this Agreement. Any and all services and additional services shall be covered by all the terms and conditions of this Agreement.
5.3. Various Plans. There may be various options available for a company to sign up for the Service, which may change at any time. Company agrees that Company’s credit card will be charged the relevant amounts, as illustrated during the sign up process, for the options selected by Company. If Company elects to use certain additional services, then Company agrees that Company's credit card will be charged the relevant amounts per each service upon signing up for each additional service, which are illustrated during the sign up process for these additional services. "Recurring Annual Fee" shall hereinafter be defined as the total amount of fees charged to Company during the then current annual period, for the base annual service fee, and for additional services, and any other charges incurred during the then current annual period. Company agrees that Company's credit card will be charged the relevant Recurring Annual Fee. If ACLLC is unable to successfully charge Company's credit card or if the charge is refused, Company's service may be terminated. It is Company's responsibility to keep credit card information current.
5.4. More on Fees. All fees are cumulative and payable in U.S. dollars. ACLLC shall calculate all fees and on the applicable due date set forth herein charge payments to the credit card number given to ACLLC at the time of registration or to any other credit card number that Company so designates. At ACLLC’s sole discretion and upon special request, ACLLC may also invoice Company and payments shall be paid by Company within ten (10) days after the invoice date. Late payments shall bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less). In the event of any failure by Company to make payment, Company shall be responsible for all reasonable expenses (including attorneys' fees) incurred by ACLLC in collecting such amounts. If a service or additional service (hereinafter for this paragraph, collectively referred to as a "service") is supposed to automatically renew, then because of the steps involved in processing transactions, it is possible that any changes made to or actions taken upon that service on the day that service is supposed to automatically renew or the day after it is supposed to automatically renew, no matter what type of change or action (including, but not limited to, upgrading the service, paying for the service in advance, canceling or terminating the service), that change or action may not be processed successfully. Therefore, Company shall not make any changes to or take any actions upon a service during the day that service is supposed to automatically renew or the day after it is supposed to automatically renew.
5.5. No Refunds. Upon cancellation or termination of the Service, Company will not receive a refund for any charges or fees associated with the Service.
5.6. No Guarantee of Results. Nothing in the marketing or offering of the Service is intended to guarantee any certain results, or to create any inference of a guarantee of certain results, whether sales, marketing, or otherwise, and as otherwise provided for as part of Section 11.1 hereof.
6.1. Term. The term of this Agreement shall be one (1) year commencing on the date that Company submits Company's credit card for payment, or other form of payment, for its Company Profile (the "Start Date"). The term shall automatically renew for successive annual periods at renewal rates applicable at the time, unless Company provides notice of non-renewal in accordance with Section 6.2 below; provided, however, that to qualify for each renewal, Company must at the time of renewal be in substantial compliance with the material terms and conditions of this Agreement. ACLLC shall have the right, but not the obligation, to review any Company Profile for compliance with the Agreement as part of the renewal process, or at any time.
6.2. Non-Renewal. Either party, in its sole and absolute discretion, may give notice of non-renewal for the subsequent year of service with or without cause and without stating any reason therefor. In connection with Company’s renewal, Company may receive a notice of renewal on or about thirty (30) days prior to the commencement of a renewal term. Any notice of non-renewal by Company must be given at least five (5) days prior to the end of the current annual period by sending an appropriate notice of non-renewal or by responding appropriately to any renewal email notice send by or on behalf of ACLLC, or the Service will be renewed automatically as provided for above in Section 6.1.
7.1. Termination. Either party may terminate the Agreement on thirty (30) days notice if the other party has materially breached or is otherwise not in compliance with any provision of the Agreement, and such breach or noncompliance is not cured within such thirty (30) day period. ACLLC reserves the right to immediately suspend any customer access to Company’s Company Profile until such breach or noncompliance is cured.
7.2. Termination for Illegal or Other Activity. Notwithstanding the foregoing, ACLLC may, but has no duty to, immediately terminate Company and remove it from ACLLC servers if ACLLC in its sole discretion concludes that Company is engaged in illegal activities or the sale of illegal or harmful goods or services, or is engaged in activities or sales that may damage the rights of ACLLC or others. Any termination under this Section 7.2 shall take effect immediately and Company expressly agrees that it shall not have any opportunity to cure.
7.3. Waiver. Company expressly waives any statutory or other legal protection in conflict with the provisions of this Section 7.
7.4. Deletion of Information. Upon termination, ACLLC reserves the right to delete from its servers any and all Information contained in Company’s Company Profile and that may relate to any information in Company's account with ACLLC.
7.5. Survival. The provisions of Sections 4.1, 4.2, 4.3, 4.4, 8.1, 10.1, and 11.1 shall survive any termination of the Agreement, as well as any other provision the meaning and sense of which is necessary to survive in order to achieve the objectives of the parties hereunder with respect to the allocation of rights and responsibilities during the term hereof.
8.1. Company Details. ACLLC maintains information (including Information) about Company and Company's Company Profile on ACLLC servers, including but not limited to Company's account registration information, Company's customer order information, sales information, and clickstream data ("Company Details"). Company grants to ACLLC a non-exclusive, worldwide, royalty-free, perpetual license to use Company Details in aggregate form (i.e., in a form that is not individually attributable to the Company) for research, marketing and other promotional purposes.
8.2. Disclosure of Company Details. Company agrees that ACLLC may disclose Company Details in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce the Agreement; (d) to respond to claims that the Company or Company's Company Profile is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of ACLLC, or others; provided, however, that nothing in this section shall impose a duty on ACLLC to make any such disclosures.
8.3 Password. Company shall receive a password from ACLLC to provide access to and use of the Service. Company is entirely responsible for any and all activities that occur under Company's account and password. Company agrees to keep its password confidential, to allow no other person, company or entity to use its account, and to notify ACLLC promptly if Company has any reason to believe that the security of its account has been compromised.
8.4 Technical Access. Company acknowledges and agrees that technical processing of Company Details is and may be required: (a) for the Service to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the Service; or (d) to conform to other, similar technical requirements. Company also acknowledges and agrees that ACLLC may access Company's account and its contents and Information as necessary to identify or resolve technical problems or respond to complaints about the Service.
9.2. Necessary Company Infrastructure. Company is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the Service and Company shall be responsible for all charges related thereto.
10.1 Indemnity. Company agrees to indemnify and hold harmless ACLLC, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees, assigns, successors, designees and agents, from any claim, demand, action, liability, loss, expense, damage or cost, including but not limited to reasonable attorneys fees, made by any party due to or arising out of Company's conduct, Company's use of the Service, any Information in Company's profile, any content, material or otherwise linked to or referred to from Company's profile, any alleged violation of this Agreement, or any alleged violation of any rights of another, including but not limited to Company's use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Company's profile. ACLLC reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Company, but doing so shall not excuse Company's indemnity obligations.
11.1. Disclaimer of Warranties and Liabilities. The Service and the Software is provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose or non-infringement. Neither this Agreement nor any documentation furnished under it is intended to express or imply any warranty that the Service will be uninterrupted, timely or error free or that the Software will provide uninterrupted, timely or error free service. The security mechanism incorporated in the Software has inherent limitations and Company must determine that the Software adequately meets its requirements. Company acknowledges and agrees that any material and/or data downloaded or otherwise obtained through the use of the Service is done at its own discretion and risk and that Company will be solely responsible for any damages to its computer system or loss of data that results from the download of such material and/or data. Company agrees and acknowledges that ACLLC and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, shall not be liable, under any circumstances or legal theories whatsoever, for any loss of business, profits or goodwill, loss of use or data, interruption of business, or for any indirect, special, incidental or consequential damages of any character, even if ACLLC is aware of the risk of such damages, that result in any way from Company's use or inability to use the Service or the Software, or that result from errors, defects, omissions, delays in operation or transmission, the contents of any web pages or web sites, loss of data, computer viruses, communication line failure, destruction or unauthorized use or access to any web sites or records or Information, or other injury, damage or disruption to Company or any other failure of performance of any kind whatsoever of ACLLC, the Service or the Software. ACLLC's liability to Company shall not, for any reason, exceed the aggregate payments actually made by Company to ACLLC over the course of the existing term. Some jurisdictions do not allow the exclusion of certain warranties or liabilities; so, in those cases, some of the above exclusions may not apply to you.
12.1. No Resale or Assignment of Service. Company agrees not to resell or assign or otherwise transfer its rights or obligations under this Agreement without the express written authorization of ACLLC.
13.1. Force Majeure. Neither party shall be liable to the other for any delay or failure in performance under this Agreement resulting directly or indirectly from acts of nature or causes beyond its reasonable control.
15.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties.
16.1. General. This Agreement and the relationship between Company and ACLLC shall be governed by the laws of the state of New York without regard to its conflict of law provisions. On all disputes, Company agrees to submit to the personal and exclusive jurisdiction in the state of New York, county of Nassau. ACLLC's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and agree that the other provisions of the Agreement remain in full force and effect. Company agrees that regardless of any statute or law to the contrary, any claim or cause of action that Company may have arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
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