Listing Service Agreement
1.The Listing Service. Kitchens.com provides website development, hosting, marketing and various other services to designers, dealers, builders and other service providers within the kitchen remodeling and design industry. In addition, through its website located at www.kitchens.com ("Site"), Kitchens.com provides users access to a rich variety of valuable resources regarding kitchen remodeling and design. Kitchens.com 's Listing Service ("Service") allows vendors to advertise their businesses to users of the Site by posting a listing of their business information (each, a "Listing") through the Service.
2.Eligibility; Right to Categorize/Refuse Listing. To be eligible to include a Listing on the Service, Customer must: (a) have an existing website; and (b) satisfy any other eligibility requirements imposed by Kitchens.com from time to time, in its sole discretion. Customer may submit a Listing only for the city or town its business is actually located in. Kitchens.com reserves the right to include Customer's Listing in the most appropriate category, at Kitchens.com 's sole discretion, even if Customer has selected a different one. Kitchens.com reserves the right to refuse any Listing (or any update thereto) for any reason, in its sole discretion.
3. Pricing; Payments.
3.1 Kitchens.com currently offers monthly and annual pricing plans. Current pricing information for the Service can be found on the Site at www.kitchens.com/listing. Kitchens.com reserves the right to change its subscription plans and pricing for the Service at any time, in its sole discretion; provided, however, that with respect to existing customers, such changes shall not take effect until the immediately subsequent billing period.
3.2 Payment for the Service shall be due upon commencement of this Agreement and each applicable billing period thereafter. Kitchens.com will charge all applicable fees for the Service to the credit card Customer designates during the registration process. Customer hereby authorizes Kitchens.com and Customer's credit card company to automatically charge Customer's specified account for the amount of the service fee on a monthly or annual basis, as applicable, for the initial billing period and for each billing period thereafter until this Agreement is terminated in accordance with its terms. All amounts shall be payable in US dollars. Customer shall be responsible for payment regardless of whether its website is offline or otherwise unavailable for any reason.
3.3 In the event Kitchens.com does not receive amounts owed by Customer within thirty (30) days of the relevant due date, Kitchens.com may, in its sole discretion and in addition to any other rights or remedies it may have: (a) suspend the Service; (b) impose a debt service charge amounting to one and one-half percent (1.5%) of the overdue balance or the maximum amount allowed by law, whichever is less; (c) terminate this Agreement; and/or (d) charge Customer for all reasonable expenses (including attorneys' fees) incurred by Kitchens.com in collecting such overdue amounts. In the event of suspension or termination of the Service, Customer shall pay Kitchens.com twenty-five dollars ($25.00) in order to reactivate the Service.
4. Compliance with Rules and Regulations. Customer must comply with all applicable laws, rules and regulations, including those related to trade and advertising practices, data privacy, international communications, copyright and exportation of technical or personal data. Customer shall not use the Site, Service or any Listing: (a) for any illegal purpose; (b) to transmit any illegal, harmful, threatening, defamatory, scandalous, obscene, sexually explicit or graphic, hateful or other objectionable or legally actionable material of any kind (including private information about a person without that person's consent); (c) to infringe, interfere with, abuse or otherwise violate the legal rights of any third party; or (d) for telemarketing, direct marketing or other similar activities (including but not limited to sending "spam" or other unsolicited marketing materials). Customer shall not use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or Site. Customer shall not use the Service to transmit or store any viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Kitchens.com reserves the right (but shall not be obligated) to monitor Listings for compliance with this Section. Kitchens.com reserves the right to determine in its sole discretion whether Customer is in compliance with this Section. Kitchens.com shall have the right to suspend or terminate Customer's use of the Service for violation of this Agreement and/or remove or edit Listings that violate this Agreement or are otherwise objectionable to Kitchens.com, in its sole discretion.
5. Disclaimers; Limitation on Liability.
5.1 KITCHENS.COM DOES NOT GUARANTEE THAT THE SERVICE WILL BE CONTINUOS, UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. Kitchens.com reserves the right to interrupt access to the Kitchens.com server containing Customer's information and data content in order to perform regular and emergency maintenance as needed.
5.2 THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL KITCHENS.COM OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR INCOME, OR ANY CLAIMS OF THIRD PARTIES WHATSOEVER WITH RESPECT TO CUSTOMER'S LISTING) ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE OR FOR MISTAKES, OMISSIONS, SERVICE INTERRUPTIONS, FORCE MAJEURE, DELETION OF FILES, LOSS OF DATA OR ANY OTHER FAILURE OF PERFORMANCE, REGARDLESS OF WHETHER KITCHENS.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KITCHENS.COM SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, ALTERATION OR INADVERTENT DISCLOSURE OF, CUSTOMER'S INFORMATION, DATA CONTENT OR OTHER INFORMATION TRANSMITTED OR STORED VIA THE SERVICE (INCLUDING BUT NOT LIMITED TO THE LISTING AND ANY CREDIT CARD OR OTHER SENSITIVE INFORMATION FURNISHED BY CUSTOMER). CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT KITCHENS.COM 'S MAXIMUM AGGREGATE LIABILITY IS SPECIFICALLY LIMITED TO THE SERVICE FEES PAID TO AND RECEIVED BY KITCHENS.COM FOR SERVICES RENDERED DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING OCCURRENCE OF THE EVENT GIVING RISE TO LIABILITY. The limitations contained in this Section shall apply to all claims, whether based in contract, tort, negligence, strict liability, warranty, misrepresentation or any other legal theory.
5.3 Some states do not allow the disclaimer of implied warranties or the exclusion or limitation of liability of consequential or incidental damages, so the above exclusions may not apply to all users. In such states, Kitchens.com 's liability is limited to the extent permitted by law.
6. Customer Representations and Warranties; Indemnification.
6.1 Listings are accepted upon Customer's representation that it has the right to publish the contents of the Listing without infringement of any rights of any third party. Furthermore, Customer represents and warrants that: (a) it is duly licensed to conduct its business and is in good legal standing in the jurisdictions in which it conducts its business; (b) the person executing this Agreement on behalf of Customer is at least eighteen years of age and otherwise capable of and authorized to enter into this Agreement on behalf of Customer; and (c) all registration and other information furnished to Kitchens.com is true, accurate, current and complete. Customer agrees to maintain and update such registration and other information to ensure that it remains true, accurate, current and complete at all times during the term of this Agreement.
6.2 Customer agrees to defend, indemnify and hold harmless Kitchens.com from and against any and all claims, liabilities, losses and expenses of any kind (including reasonable attorneys' fees and costs) arising out of or in connection with: (a) any injury to persons or property caused by any Listing or any item sold or advertised in connection with information and data provided to Kitchens.com by Customer; (b) any claim that any Listing or any item sold or advertised in connection with information and data provided to Kitchens.com by Customer does not comply with all local and international safety and labeling requirements and all other relevant local and international laws, treaties, regulations, ordinances and the like; (c) any actual or alleged defamatory, libelous or illegal material contained within information and data provided to Kitchens.com by Customer (including but not limited to any false or deceptive advertising); (d) any material infringing or allegedly infringing on the proprietary rights of a third party (including but not limited to intellectual property, privacy, confidentiality and publicity rights); (e) any third party claim arising out of third party access or use of any information and data provided to Kitchens.com by Customer; and (f) any breach by Customer of this Agreement, including but not limited to any breach by Customer of Section 4 or any of the representations or warranties set forth in Section 6.1 above. If any action or proceeding is brought against Kitchens.com by reason of any such claims, Customer shall defend such action or proceeding at its sole cost by counsel satisfactory to Kitchens.com. Customer promptly shall notify Kitchens.com in writing of any claim or demand made by a third party that may give rise to this provision. Any settlement of any such action shall require the prior written consent of Kitchens.com.
7.Responsibilities of Customer.
7.2 Customer may be issued a unique user ID and password in connection with its use of the Service. Customer is solely responsible for maintaining the security and confidentiality of its user ID and password. Furthermore, Customer is entirely responsible for any and all activities that occur in connection with its user ID and password, including any orders for additional services. Customer must immediately notify Kitchens.com of any unauthorized use of its user ID or password or any other breach of security. Kitchens.com cannot and will not be liable for any loss that may occur as a result of someone else using Customer's user ID or password.
8. Property Rights.Kitchens.com owns all right, title and interest in and to the Service and Site, including but not limited to its trade names, trademarks, copyrights, inventions, trade secrets, patents and know-how relating to the design, function or operation of the Service or Site. Customer is expressly prohibited from reproducing, distributing, republishing or retransmitting any materials posted at the Site or on the Service or otherwise stored on Kitchens.com 's servers, including all third party listings and all graphic designs, style templates, icons, HTML code and other graphic elements, without Kitchens.com 's prior written consent. Customer shall not decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code underlying the Site or Service. Customer shall acquire no ownership or license rights by virtue of its use of the Service or Site, including any license to use Kitchens.com 's trade names or marks. Any such license, if granted, must be the subject of a separate written agreement. All rights are hereby expressly reserved.
9. Term; Termination.
9.1 The term of this Agreement shall commence when Kitchens.com accepts Customer's Listing and shall continue in effect unless and until terminated in accordance with this Agreement.
9.2 Customer may terminate this Agreement, with or without cause, and without any right to refund, by providing five (5) days written notice of termination to Kitchens.com.
9.3 Kitchens.com may terminate this Agreement, with or without cause, by providing five (5) days written notice of termination to Customer. Notwithstanding the foregoing, Kitchens.com may terminate this Agreement immediately if, based on Kitchens.com 's sole judgment, it determines that Customer has breached this Agreement. Kitchens.com 's failure to enforce performance of any provision in this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
9.4 Upon any termination of this Agreement, Customer shall pay Kitchens.com all fees outstanding as of the date of such termination (including but not limited to all service fees through the remainder of the then-current billing period), and Customer's Listing shall be removed. Kitchens.com may, in its discretion, make or maintain copies of Customer's data files and records for archival purposes. The following provisions shall survive any termination of this Agreement: Sections 5, 6.2, 8, 9.4 and 13.
10.Changes to Service.Kitchens.com reserves the right to discontinue the Service or change any features of the Service at any time in its sole discretion.
11.Severability. The provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement is invalid or unenforceable, the remainder of this Agreement shall not be affected by such invalidity or unenforceability, unless such provision or the application of such provision is essential to the Agreement.
12.Relationship of Parties. Customer and Kitchens.com are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
13. Governing Law; Exclusive Jurisdiction.Kitchens.com operates and maintains the Service from within the State of Illinois , USA . Kitchens.com makes no representation that the Service or any content contained in the Service is appropriate for use in other jurisdictions. You are responsible for compliance with all local laws and regulations, as applicable. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois , USA , without giving effect to principles of conflicts of law. All claims arising out of or relating to this Agreement or the Service shall be brought only in a federal court of the Northern District of Illinois, USA, or a state court located in Cook County , Illinois , USA , and each party hereby irrevocably submits to the exclusive personal jurisdiction and venue of such courts. No action by Customer, regardless of form, arising under or in connection with this Agreement may be brought more than one (1) year after the facts occurred upon which the cause of action arose.
14.Miscellaneous. This Agreement shall constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties with respect to the subject matter hereof. This Agreement may be amended by Kitchens.com upon ten (10) days notice to Customer. Customer's continued use of the Service after the effective date of any such amendments shall signify Customer's agreement to those terms. This Agreement may not otherwise be amended except by written agreement executed by both parties. This Agreement may not be assigned or transferred by Customer without Kitchens.com 's prior written consent. Any attempted assignment in violation of the foregoing shall be null and void.
15. Notices. Customer hereby consents to receive notices and any other communications required or permitted hereunder from Kitchens.com electronically. Customer agrees that all notices and other communications that Kitchens.com provides electronically shall satisfy any legal requirement that such notices or communications be in writing. All notices to Customer shall be sent to the e-mail address, fax number or address most recently provided and will be effective upon transmission. All notices to Kitchens.com shall be in writing and sent by fax, express mail, registered mail or personal delivery to: Kitchens.com, 4611 N. Ravenswood Ave., Suite 104, Chicago, IL 60640, Fax: (773) 769-8401, Attn: President, or to such other address as Kitchens.com may designate from time to time by notice given pursuant to this Section.