Terms & Conditions
IT IS AGREED THAT ALL CONDITIONS, TERMS AND OTHER AGREEMENTS PRINTED IN THIS ORDER ARE PART OF THE ORDER AND ANYTHING NOT SO APPEARING DOES NOT APPLY EXCEPT TO THE EXTENT EXPLICITLY REFERRED TO HEREIN.
A. DESCRIPTION OF THOMASNET.COM SOLUTIONS AND SCOPE OF SERVICES:
Definitions: “Agreement” shall mean the Service Contract in effect between Publisher and Client.“Client Materials” shall mean all text, images, data, printed materials, digital files, information, audio files, video files provided by Client to Publisher (including Client’s own intellectual property or third-party intellectual property provided to Publisher by Client), by any means or in any medium, to be used by Publisher for any purpose in connection with preparing products or providing services contemplated by this Agreement.“ThomasNet.com Solutions” shall mean all products and materials, in any medium, prepared by Publisher for Client and all services rendered by Publisher to Client under the terms of this Agreement.
(Program description and Fees apply only to those items purchased as part of this order, as applicable).
Program Year: Client’s program will run for 12 months or as otherwise set forth in this Agreement.
Thomasnet.com Foundation: This includes a company profile ad, access to Client Center, and editorial profile set up
Listing representation will come with descriptive information under each listing deemed appropriate by Thomas, is subject to editorial discretion and is limited to descriptive text further describing the product.
Publisher reserves the right to reject material considered to be unsuitable for ThomasNet.com Solutions.
B. RIGHTS IN CONTENT AND LICENSES
Client Material Requirements: All Client Materials received from the Client and its agents must comply with Publisher’s specifications which can be provided by your Thomas representative.
License: During the term of this Agreement, Client authorizes and grants any rights, permissions and licenses to Publisher in or relating to all Client Materials that are necessary or useful to perform the services under this Agreement or to enforce Publisher’s rights under this Agreement and to make the Client Materials available to subscribers and subcontractors or other third parties in providing the services. Publisher reserves the right to display Client Materials on other websites including ThomasNet.com as deemed suitable for the content thereof.
Without limiting the foregoing, Client grants to Publisher a non-exclusive, world-wide, and royalty-free license in and to the Client Materials (including, but not limited to, any and all copyright and other intellectual property rights therein and thereto), with full right and authority to internally use, copy, reproduce, modify, display, transmit, and distribute the Client Materials, prepare derivative works from and of the Client Materials (including, but not limited to, by means of, ThomasNet.com Solutions), sublicense the Client Materials to third parties retained by Publisher, and use or treat the Client Materials in such other manner as may be necessary for the purpose of including and using the Client Materials in ThomasNet.com Solutions and delivering the services contemplated hereunder.
Upon written request, Client will provide Publisher with reasonable documentation of Client’s right to use any intellectual property to be included in any ThomasNet.com Solutions or any Website linked thereto, or used by Publisher in the Client Program.
Proprietary Rights: Except as expressly granted in this Agreement, neither party shall have any rights of any kind in the other party’s intellectual property, proprietary technology, trade secrets, inventions, customer accounts, vendor accounts, websites, products, services, and/other business information. Client acknowledges that all copyrighted works, patents, trade secrets and other intellectual property provided by Publisher and embodied in the ThomasNet.com Solutions (regardless of media), other than the Client Materials provided by the Client, shall belong exclusively to Publisher. Client shall not copy, de-compile, reverse engineer or sublicense any of the ThomasNet.com Solutions without the prior written consent of Publisher.
C. REPRESENTATIONS AND WARRANTIES
Client represents and warrants that:
(a) Client shall be solely responsible for the adequacy and accuracy, of the Client Materials and all information, data, and other materials therein furnished to Publisher by or on behalf of Client by Client or its agents or affiliates, and assumes all liability therefor;
(b) the Client Materials, including but not limited to graphic materials and/or third party owned components contained therein, do not violate and law or administrative regulation or infringe any patent, copyright, or trademark, or violate any trade secret, proprietary or contractual right, or any other right of any person or entity;
(c) the registration of the domain name used by Client and the manner in which it is used do not violate the rights of any third party: and,
(d) the use of any third-party trademark or copyrighted material included in the Client Materials is duly authorized under a license from the trademark or copyright owner, if such a license is required.
Publisher shall have the right, but not the duty, to review and monitor all content submitted by Client through the Client Center application and, in its sole discretion and after consultation with the Client, to remove any Client Materials that Publisher or a third party alleges to be in violation of law or of Client’s warranties.
Publisher represents and warrants that:
Publisher’s contributions to the ThomasNet.com Solutions provided by Publisher hereunder do not infringe or breach any patent, copyright, or trademark, or violate any trade secret, proprietary or contractual right, or any other claim right of any person or entity.
Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and (d) when signed by Customer and accepted by Publisher, this Agreement will constitute the legal, valid and binding obligation, enforceable against each Party in accordance with its terms.
Disclaimer of Certain Warranties: EXCEPT AS EXPRESSLY STATED HEREIN, (A) ALL THOMASNET.COM SOLUTIONS ARE PROVIDED TO CLIENT BY THE PUBLISHER ON AN “AS IS” BASIS; AND (B) PUBLISHER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY THAT THE PRODUCTS AND SERVICES (OR ACCESS TO OR USE THEREOF) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
D. INDEMNIFICATION AND LIMITATIONS ON LIABILITY:
Client Indemnification:Client shall defend, indemnify, and hold harmless Publisher and each of Publisher’s affiliates, directors, stockholders, officers, employees, agents, successors and assigns (each of the foregoing a "Publisher Indemnitee") from any liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees (collectively “Losses”) arising out of any third-party claim that (i) if true, would constitute a breach of any representation or warranty of Client hereunder, (ii) relates to any Client Materials or to any action taken by Client in connection with the use of ThomasNet.com Solutions, or (iii) any unlawful or improper interception of use (by a third party or the Client or its agents) of any data provided or maintained in connection with Client’s use of ThomasNet.com Solutions, except to the extent any such Losses arise from the willful misconduct or gross negligence of the Publisher Indemnitee.
Publisher shall defend, indemnify, and hold harmless Client and each of Client’s affiliates, directors, stockholders, officers, employees, agents, successors and assigns (each of the foregoing a "Client Indemnitee") from any Losses arising out of any third-party claim that if true, would constitute a breach of any representation or warranty of Publisher hereunder, except to the extent any such Losses arise from the willful misconduct or gross negligence of the Client Indemnitee.
Notice of Claim: Any person or entity seeking indemnification hereunder shall promptly provide the indemnifying Party with written notice of any claim for which indemnification is sought. An indemnitee may, at his, her, or its own expense assist in the defense of a claim, provided that the indemnifying Party shall control such defense. A Party shall not settle or compromise any claim against an indemnitee without the indemnitee’s prior written consent, not to be unreasonably withheld or delayed.
Limitation of Liability:Publisher shall not be liable for any errors or omissions with respect to postings, listings and links (including the failure to publish same), and they shall not be considered as a basis for reduction of the fees payable under this contract. Once Client’s program has been published on Thomas Website(s), any errors caused by Publisher will be corrected at no charge subject to the timing and limitations of third -party sites’ correction and take down procedures. Such correction shall be Client’s sole remedy for any errors or omissions by Publisher arising out of or in connection with this order. Publisher assumes no responsible for any decrease in search engine rankings. Notwithstanding anything to the contrary contained herein, except for Publisher’s indemnification obligation above for third-party claims, Publisher’s aggregate liability to the Client arising out of or related to this Agreement, whether based upon breach of contract, tort (including negligence) or otherwise, shall not exceed the total of the amounts paid and payable by Client to Publisher pursuant to this Agreement. IN NO EVENT SHALL PUBLISHER TO BE LIABLE TO THE CLIENT FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF PUBLISHER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE.
Except for such damages, losses, costs, or expenses arising out of the willful misconduct or gross negligence of Publisher, Publisher shall not be liable for any damages, losses, costs or expenses arising out of (i) unauthorized access to or alteration of Client data, (ii) any material or data sent or received or not sent or received, or any transaction entered through e-commerce, (iii) any threatening, defamatory, obscene, offensive or illegal content or negative/damaging conduct of any other party, (iv) the availability, use reliance on, inability to utilize or improper use of Publisher’s ThomasNet.com Solutions, or (v) any errors or omissions related to Publisher’s registration of (at Client’s request) -- or failure to register – any domain name acquired on behalf of Client. Client acknowledges that Publisher is under no obligation to maintain the registration of any domain name acquired on behalf of Client beyond the contracted hosting period.
E. PAYMENT TERMS
Payments: In consideration for the ThomasNet.com Solutions provided by the Publisher, Client agrees to pay for this program by establishing an automatic reoccurring credit card payment for the duration of this contract as stated on this order. The Client will establish the reoccurring payment by completing the online process associated with this order. All orders are stated in and payable in United States dollars. In the event that payments are not received by Publisher within 60 days after becoming due, Publisher may (1) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; or (2) suspend performance of all services until payment has been made in full. If outside agencies are used to collect any overdue balances, reasonable collection fees (including legal expenses) will be charged and added to the balance collectible. If a legal action is brought to collect such balance, Client will not make any claim against the Publisher as a counterclaim or set-off in the action, and hereby waives the right to make such claims, to the extent permissible by law. If any such counterclaim or set-off is asserted in such action, reasonable legal expenses incurred by Publisher in defending such claim shall be charged and added to the balance collectible.
Taxes: Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
Credit Card Payments: Client is responsible for keeping Client’s credit card information up to date. Publisher reserves the right to suspend Client’s account and participation in ThomasNet.com solutions if for any reason Publisher is not able to process payment through the credit card Client provided.
Order Acceptance: Orders shall be deemed accepted in New York only if and when confirmed in writing by the Publisher or upon publication of ThomasNet.com Solutions in electronic format with Client’s program material included.
F. CANCELLATION AND TERMINATION
Cancellation: All cancellation requests must be in writing and sent to the Publisher at the address shown on this order by registered mail or any other method of delivery that requires a signature by the recipient. Client may cancel without charge 10 days from the date the original order is signed. All cancellations received after the initial 10 days and prior to the relevant closing deadline are subject to a 50% charge in consideration for the preliminary expense of processing the order. Termination: Either party hereto may immediately terminate the Agreement if the other party becomes insolvent, commits an act of or makes an application for bankruptcy, has a receiver or liquidator appointed, ceases or threatens to cease doing business or an order is made for the winding up of its business. In addition to any remedies that may be provided under this Agreement, Publisher may terminate this order at any time effective immediately upon written notice to Client in the event that (a) Client fails to pay any overdue fees, charges, or expenses within 15 days after client’s receipt of written notice from Publisher thereof, or (b)Publisher determines that Client has materially breached any covenant, representation, or warranty of this Agreement and such breach remains uncured 30 days after Client’s receipt of written notice from Publisher thereof,
G. MISCELLANEOUS PROVISIONS
Waiver: No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Publisher. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof.Force Majeure: Neither party shall not be liable or responsible to the other party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the affected party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Assignment: Either Publisher or Client may assign its rights hereunder to any affiliate or to any successor to all or substantially all of its business by way of merger, stock purchase, asset sale or similar transaction, provided the successor agrees to be bound hereby.
Relationship of the Parties: The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Notices: All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the Parties at the addresses set forth in this Agreement or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail.
Survival: Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or cancellation of this Agreement including, but not limited to, the following provisions: Indemnification, Limitations on Liability, Governing Law, Submission to Jurisdiction and Survival.
Amendment and Modification: This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.