Last updated 09/12/2018
Terms and Conditions
These terms and conditions (these "Terms") are an agreement between you ("Dealer", “you” or “your”) and ECN Digital Marketing Solutions, LLC ("DMS ", “our”, "we", or "us"). These Terms set forth the terms and conditions under which DMS is providing Dealer with access to a micro site on trustedhomeprofessionals.com branded to Dealer and tied to the home improvement-related goods and services offered by Dealer to potential customers (each, a “Buyer”) (the “Micro Site”) in accordance with the Pilot Lead Referral Agreement between DMS, Dealer and DMS (the “Agreement") as well as a contact management software that can integrate with Dealer’s customer relationship management software via an open API (access to the Micro Site and contact management software, collectively, the “Services”).
1. What You Provide to Us
You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials uploaded, posted or stored by or on your behalf in connection with your use of the Services (collectively, the "Dealer Content"). DMS is not responsible for the Dealer Content. You hereby grant DMS and its third-party partner Spectrum Communications & Consulting, Inc. (“Spectrum”), who will be hosting and managing the Services on behalf of DMS, a worldwide, royalty-free, non-exclusive license to host and use the Dealer Content and your trademarks, service marks, logos and trade names (collectively, the “Dealer Trademarks”) in order to provide you with the Services. You hereby represent and warrant that you have all the rights necessary to grant us such license. You are responsible for any of the Dealer Content that may be lost or unrecoverable through your use of the Services. You are encouraged to archive the Dealer Content regularly and frequently.
2. Dealer Intellectual Property
All right, title and interest in and to the Dealer Content and the Dealer Trademarks are the property of Dealer.
3. DMS and Third-Party Intellectual Property
All right, title and interest in and to the Services, the software comprising the Services, the design, "look and feel" and layout of the Services, all content on the Services (other than the Dealer Content), including information, data, text, music, messages, photographs, graphics, audio, video, (collectively, “Content”) and all trademarks, service marks, logos displayed on the Services (other than the Dealer Trademarks) (collectively, “Trademarks”) are owned by us, our affiliates, Spectrum or other parties that have licensed such intellectual property to us, and are protected by copyright, trademark, trade secret and other intellectual property laws.
From time to time, DMS may use and share with third parties aggregate, non-identifying information about your use of the Services. You acknowledge that such information is owned by us, our affiliates, Spectrum or other parties. Moreover, if you provide feedback to us regarding the Services or the Content, such feedback will be owned by us and you hereby assign to us all right, title and interest therein and you represent and warrant that such feedback does not violate the intellectual property or other rights of any third parties. Except as otherwise specifically provided herein, nothing should be construed as granting Dealer any license or rights with respect to the foregoing intellectual property.
4. Access Rights; Restrictions Subject to these Terms, DMS hereby grants you and your employees (“Authorized Users”) a limited, revocable, non-transferable and non-exclusive right to access and use the Services and the Content solely for the purpose of offering home improvement-related goods and services to Buyers through the Micro Site. You shall inform each Authorized User of the terms and conditions of these Terms that are applicable to such Authorized User and you shall remain solely responsible for each Authorized User’s compliance with all such terms and conditions of these Terms.
The foregoing right does not permit you or Authorized Users to, and you agree not to and shall use commercially reasonable efforts to cause Authorized Users not to: store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Services or the Content or otherwise distribute in any way the Services or the Content other than as specifically permitted in these Terms. Neither you nor Authorized Users may sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer the Services or the Content, create derivative works based on or in any manner commercially exploit the Services or the Content, in whole or in part, other than as expressly permitted in these Terms.
Any use of the Services or the Content for any purpose other than as specifically permitted herein or without our prior consent is expressly prohibited. We and our affiliates and licensors reserve all rights with respect to the Services, the Content and the Trademarks not expressly granted in these Terms.
You agree to fully and accurately provide the information requested by us when setting up your accounts and to regularly update such information. Your failure to do so may result in the cancellation of your account and loss of access to the Services. You further agree (a) not to provide your login credentials for the Services to anyone other than an Authorized User, and (b) to ensure that all Authorized Users are aware of and have agreed in writing to comply with the terms of these Terms.
As part of the Services, we may provide you a sample website (“Sample Micro Site”) which may be populated with sample content provided by us to illustrate how your final Micro Site might look ("Sample Content"). You agree that you will not make this Sample Content or Sample Micro Site publicly available and that you will not include any Sample Content on the Micro Site.
5. Giving Us Access to Other Accounts and Services
Some aspects of the Services may require you to give us access to or require you to provide login information and password information for accounts or services you may have with third party providers (i.e., Google+, Yahoo local, Bing local, Yelp, Citysearch). When you provide this information to us or give us access to these third party accounts you agree that you have read all contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give us such access, login information and passwords. In many cases we need to create, edit, manage, maintain, and delete your profiles, content and listings on these third party services. You agree that by providing us with the username and password to these accounts or granting us access thereto that we are acting as agents of you and you authorize us to make any additions, changes, and amendments to all information within these accounts.
6. Monitoring What You Provide Us
DMS may, but has no obligation to, monitor the Dealer Content. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect us, our affiliates, Spectrum, partners, agents and other customers, and operate the Services properly. DMS, in its sole discretion, may refuse to post, remove, or require you to remove, any Dealer Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of these Terms or a third party’s intellectual property or other rights. DMS may, in its sole discretion, also require you to place all or any portion of the Dealer Content behind password protection. If DMS has requested that the Dealer Content be placed or has placed the Dealer Content behind password protection, you may not publish the password or similar information in any way that limits the effectiveness of the password. If DMS requests that you place any of the Dealer Content behind password protection and you fail to do so promptly, DMS may (a) place such Dealer Content behind password protection itself, or (b) immediately terminate these Terms.
7. Additional Rules and Restrictions
You agree to all of the following and shall use commercially reasonable efforts to cause Authorized Users to agree to all of the following before they access the Services or the Content:
You take full responsibility for all taxes and fees of any nature associated with Services, including any sales tax related to the purchase or sale of Commercial Products. DMS shall not be liable for any taxes or other fees to be paid in accordance with or related to the Commercial Products. When purchasing or selling Commercial Products, it is your responsibility to determine whether or not sales taxes apply to a transaction and to collect, report and remit the correct amounts to the appropriate authority. Any tools provided in connection with the Services indicating estimated taxes due are for illustration purposes only. You take full responsibility for all taxes and fees of any nature associated with Services, including any sales tax related to the purchase or sale of Commercial Products.
9. Termination; Survival
DMS may suspend or terminate your access to the Services at any time, without penalty or liability and without notice, for any reason or no reason, including if you fail to comply with any of the terms of the Agreement or these Terms, including the intellectual property protections applicable to the Services. Upon termination of these Terms for any reason, you shall continue to remain liable to all Buyers with whom you have entered into a contract for the provision of Commercial Products.
Notice of termination of Services by DMS may be sent to the contact e-mail associated with your account. Upon termination, DMS has the right to delete all Dealer Content.
Sections 2, 3,11,14,15,17,19,20, and 22 of the Agreement will survive the termination of the Agreement for any reason.
10. Accuracy and Appropriateness
YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND APPROPRIATENESS OF ALL DEALER CONTENT provided on, in connection with or through the Micro Site. DMS WILL NOT BE HELD RESPONSIBLE FOR ANY INACCURACIES or inappropriateness AND ANY POTENTIAL DAMAGES CAUSED BY SUCH INACCURACIES or inappropriateness. YOU FURTHER UNDERSTAND THAT DMS MAY NOT MAINTAIN COPIES OF DEALER CONTENT, INCLUDING FILES OR DOCUMENTS THAT ARE SENT BY YOU, AND THAT YOU ARE SOLELY RESPONSIBLE FOR BACKING UP THIS DATA.
11. Links to Third Party Websites; No Implied Endorsement
The Services may contain links to other web sites owned by third parties. Please note that when you click on any of these links, you are entering another website for which we have no responsibility or control. You agree that we shall not be responsible for any loss or damage of any sort incurred as a result of any such links or as the result of the presence of such links on the Services. In no event shall any reference to any third party, third party website or third party product or service be construed as an approval or endorsement by us of that third party, third party website or of any product or service provided by a third party.
12. DISCLAIMER OF WARRANTY
THE SERVICES AND THE CONTENT ARE PROVIDED "AS IS," "AS AVAILABLE," "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, DMS AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER DMS NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE SERVICES OR THE CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES DMS OR ITS AFFILIATES OR LICENSORS MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SERVICES OR THE CONTENT. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND THE CONTENT IS AT YOUR SOLE RISK. IN ADDITION, DMS AND ITS AFFILIATES AND LICENSORS ARE NOT RESPONSIBLE, AND MAKE NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER DEALER CONTENT) SENT THROUGH THE SERVICES TO ANYONE.
IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT THE CONTENT IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT OF TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.
FURTHER, DMS AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICES OR THE CONTENT ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SERVICES OR THE CONTENT OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES. NEITHER DMS NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICES OR CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THESE TERMS APPLY SOLELY TO THE SERVICES AND THE CONTENT. AS PART OF THE SERVICES PROVIDED TO OTHER DMS CUSTOMERS, WE HOST WEBSITES FOR THEM ("THIRD PARTY SITES").THIRD PARTY SITES INCLUDE CONTENT GENERATED BY THIRD PARTIES AND ARE NOT UNDER THE MANAGEMENT AND CONTROL OF DMS. DMS IS NOT RESPONSIBLE FOR SUCH THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION, THE ACCURACY, SUFFICIENCY, CORRECTNESS, RELIABILITY, VERACITY, COMPLETENESS OR TIMELINESS THEREOF, ANY LINK CONTAINED THEREIN, OR ANY CHANGES OR UPDATES THERETO, OR ANY GOODS OR SERVICES SOLD THEREON.YOUR ACCESS OR USE OF ANY THIRD PARTY SITE IS GOVERNED BY THE TERMS APPLICABLE TO SUCH THIRD PARTY SITE. THE HOSTING OF ANY THIRD PARTY SITE BY DMS DOES NOT IMPLY AN ENDORSEMENT THEREOF BY DMS, OR OF THE PROVIDER OF SUCH CONTENT OR SERVICES, OF ANY THIRD PARTY SITE.
13. LIMITATION OF LIABILITY
WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH USE OF THE HE SERVICES OR THE CONTENT, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF DMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE DMS AND HOLD DMS AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND THEIR OFFICERS, DIRECTORS, TRUSTEES, AFFILIATES, SUBCONTRACTORS, AGENTS AND EMPLOYEES, HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH EITHER OF THE FOREGOING. YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE.
IN THE EVENT OF ANY PROBLEM WITH THE SERVICES OR THE CONTENT, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SERVICES AND THE CONTENT. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
14. Availability of and Changes to the Services; Additional Terms Concerning Dealer Content
We may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, or add, change and modify prices for all or part of the Services for you or for some or all our customers at any time without notice, penalty or liability and in our sole discretion. We further reserve the right to withhold, remove and or discard any Dealer Content, with or without notice if deemed by us to be contrary to these Terms. For avoidance of doubt, DMS has no obligation to store, maintain or provide you a copy of any Dealer Content.
You agree to indemnify, hold harmless, and defend DMS and our licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, successors and assigns (collectively "Indemnified Parties") from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys' fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account's) use of the Services or the Content, (ii) Dealer Content, or (iii) the use of, access to, interaction with or reliance upon the Micro Site by Buyers or any Commercial Products you offer on or through the Services. This includes, but is not limited to, any breach or violation of these Terms by you or anyone utilizing your account. You agree to fully cooperate at your expense as reasonably required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.18. Amendments
We reserve the right, in our sole discretion, to modify or replace any part of these Terms at any time. It is your responsibility to check these Terms periodically for changes. Your continued use of or access to the Services and the Content following the posting of any changes to these Terms constitutes your acceptance of those changes. We may also, in the future, offer new services and/or features through the Services (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of these Terms unless we inform you otherwise in writing.
16. Governing Law; Waiver of Jury Trial
The formation, interpretation and performance of these Terms and any disputes arising out of it shall be governed by the substantive and procedural laws of the state of Florida without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of the United States of America. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Palm Beach County, Florida, and you hereby submit to the personal jurisdiction of such courts. You hereby waive any right to a jury trial in any proceeding arising out of or related to these Terms. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
You acknowledge that a violation or attempted violation of any of these Terms will cause such damage to DMS as will be irreparable, the exact amount of which would be impossible to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that DMS shall be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of these Terms by you, or your affiliates, partners, or agents, as well as to recover from you any and all costs and expenses sustained or incurred by DMS in obtaining such an injunction, including, without limitation, reasonable attorney's fees. You agree that no bond or other security shall be required in connection with such injunction. In no event shall you be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of DMS, or the exploitation of the Services or the Content.
18. Terms You Must Post on the Micro Site
If any portion of these Terms is found to be unenforceable, the remaining portion will remain in full force and effect.
If we fail to enforce any of these Terms, it will not be considered a waiver.
Any amendment to or waiver of these Terms must be made in writing and signed by us.
You will not transfer any of your rights or obligations under these Terms to anyone else without our prior written consent.
All of our rights and obligations under these Terms are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
These Terms do not confer any third-party beneficiary rights.
A printed version of these Terms and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.