THIS ONLINE SUBSCRIPTION AGREEMENT (hereinafter referred to as the “Agreement”) by and between NEPA Connect, Inc., a Pennsylvania Corporation with an address at 45 E Northampton St Suite 102 Wilkes-Barre PA 18701 (”Publisher’) and Online Subscriber (“Business”).
Publisher and Business may each be referred to individually as a “Party” or collectively as the “Parties” hereunder. WHEREAS, Publisher is in the business of operating a website at the following web address: http://www.nepaconnect.com (the “Website”), whereby Publisher provides information in various forms to the public. WHEREAS, Business desires to offer and/or promote its products and services through the Website via online services offered by Publisher (the “Services”). NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and intending to be legally bound, the Parties hereby agree as follows:
A. Business desires to order and Publisher desires to provide the following Services which are detailed further as follows:
Service: Online Business Listing
Term: One full year Payment Details
Cost: $95 Investment Paid Annually. Does not auto renew, an email will be sent to invite Business to sign up for subsequent terms.
B. Business Responsibilities
1. Business is responsible for the accuracy and quality control of information, prices, and products submitted and/or published on the Website or otherwise through the Services.
2. Business is responsible for all modifications and updates to its listing. Business is additionally responsible for all shipping and distribution of goods and services to its customers utilizing or purchasing through the Website and/or the Services.
3. Business is solely responsible for any and all issues, complaints, concerns, credits, chargebacks or refunds issued by consumers purchasing goods and services from Business, either through the Website and/or the Services or otherwise.
C. Publisher Responsibilities
1. Publisher will use best efforts to keep the Website and the Services running at all times, however Client acknowledges and agrees that Publisher makes no guarantees with respect to interruptions of service and further cannot be responsible for interruptions in service due to circumstances beyond its control.
2. Publisher does not guarantee any particular number of hits, visits, impressions, tracking, circulation or other usage of the Website and/or the Services.
3. Payments for goods and services sold by Business through the Website and/or the Services, and charged to the Stripe or other account operated by Publisher, will be made to Business on a weekly basis following the associated sales along with a report detailing the related sales and account activity, however Publisher may apply, a debit or charge to amounts owed to Business hereunder in an amount equal to a payment previously remitted to Business in circumstances of non-receipt of payment from or refund of payment to any customer. If there are not sufficient amounts owed to Business hereunder to credit any such amount, Business will remit the related funds to Publisher within three (5) days of any request of Publisher.
II. PAYMENT AND BILLING
A. Business shall pay all amounts owed hereunder to Publisher in advance and further in accordance with the payment schedule established above in Section I. Unless otherwise stated, all fees are to be quoted in U.S. Dollars.
B. Without limiting Publisher’s other remedies, any amount that is not paid by Business when due will accrue a late fee at one and one half percent (1½ %) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
For any amounts not paid when due Publisher will be entitled to recover from Business losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney fees or expert witnesses’ cost or other costs of any kind incurred by Publisher hereunder.
III. TERM AND TERMINATION:
A. Unless otherwise extended in writing by Publisher, this Agreement shall terminate upon the end of the Term established in Section I. Except as otherwise provided for in this Section III, this Agreement is non-cancellable by either Party except as stated in this Section.
B. Publisher may immediately terminate this Agreement, in whole or in part, and/or refuse to provide some or all of the Services to Client, without notice, if in Publisher’s sole discretion: (a) Business fails to pay any fees in accordance with this Agreement; (b) Business breaches the covenants of this Agreement; (c) Business breaches this Agreement in any other manner; or (d) Publisher believes that Business’s actions may cause financial loss or legal liability for Publisher.
C. In the event of expiration or termination of this Agreement for any reason, Business will have no right to use or access the Services. Upon termination, there will be no refund provided to Business and all outstanding fees owed by Business shall become immediately due and payable. Termination shall not affect the rights of Publisher to recover from Business losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or expert witnesses’ cost or other costs of any kind under this Agreement.
IV. BUSINESS REPRESENTATIONS AND WARRANTIES:
A. Business has all power and authority to enter into this Agreement and has duly and validly authorized this Agreement. If applicable, the individual executing this Agreement on behalf of Business have been duly authorized and are empowered to bind Business to this Agreement.
B. To Business’s knowledge, there is no action, proceeding, or investigation, pending or threatened, which questions, directly or indirectly, the validity or enforceability of this Agreement.
C. Business will comply at all times with all local, state and federal laws, rules and regulations applicable to its performance pursuant to this Agreement; and
D. Business may use the Website and Services only in accordance with this Agreement, applicable laws in the United States and the applicable laws of any other jurisdiction. In addition, Business agrees that it will not use the Website or the Services to:
1. engage in any illegal or tortuous activity;
2. violate the patent, copyright, trademark, trade secret or other intellectual property rights of any third party;
3. sell or distribute illegal adult oriented content that features nudity, sexual acts or adult-themed material or otherwise is found to be objectionable by Publisher;
4. use verbal, physical, written or other abuse (including threats of abuse or retribution) of any customer, employee, member, or officer will result in immediate account termination; or
5. publish or distribute in any manner any content that is harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable in its sole discretion.
V. PUBLISHER REPRESENTATIONS AND WARRANTIES:
A. Publisher has all power and authority to enter into this Agreement and has duly and validly authorized this Agreement. If applicable, the individual executing this Agreement on behalf of Publisher have been duly authorized and are empowered to bind Publisher to this Agreement.
B. To Publisher’s knowledge, there is no action, proceeding, or investigation, pending or threatened, which questions, directly or indirectly, the validity or enforceability of this Agreement; and
C. Publisher will comply at all times with all local, state and federal laws, rules and regulations applicable to its performance pursuant to this Agreement.
A. Business hereby agrees to indemnify, defend, and hold harmless Publisher against, and agrees to pay and hold harmless Publisher for all liabilities, obligations, losses, damages, penalties, claims, actions, suits, judgments, settlements, out-of-pocket costs, expenses and disbursements (including reasonable costs of investigation, and reasonable attorneys, accountants and expert witness fees), of whatsoever kind and nature that are imposed on or incurred by Publisher as a consequence of or in connection with (i) any material misrepresentation by Business, (ii) any breach of this Agreement by Business or of any warranty or covenant contained herein, or (iii) any failure by Business to perform in accordance with this Agreement; (iv) and products or services provided by Business or otherwise promoted or offered through the Website and/or the Services; and (v) claims or actions of third parties alleging unfair or deceptive trade practices or false advertising in connection with statements or claims made by Business pertaining to its products and services, whether promoted or offered through the Website and Services or otherwise.
B. Business agrees to give prompt written notice to Publisher upon the receipt of notice of any claim by a third party against Business which might give rise to a claim against Publisher stating the nature and the basis of such claim and, if ascertainable, the amount thereof. In connection with any such third party claim, Publisher may, at its election and expense, have the right to participate in the defense of such third party claim and no such third party claim shall be settled without the consent of Publisher, which consent shall not be unreasonably withheld or delayed.
VII. EXCLUSIONS; LIMITATIONS ON LIABILITY
A. Business expressly acknowledges and agrees that the use of the Website and Services by Business is at Business’s sole risk. Neither Publisher nor any of its information providers, service providers, licensors, employees or agents makes any warranty as to the results to be obtained from the use of the Website and/or the Services.
B. NO REPRESENTATION OR WARRANTY MADE UNDER THIS AGREEMENT APPLIES TO THE EFFECT OF ANY CONDITION OUTSIDE THE REASONABLE CONTROL OF PUBLISHER, INCLUDING WITHOUT LIMITATION ANY (I) FAILURE IN TELECOMMUNICATIONS, (II) FAILURE BY BUSINESS TO COMPLY WITH THIS AGREEMENT, OR (III) CONDITION IN, OR COMBINATION OF ANY SERVICE, SOFTWARE, HARDWARE, SYSTEM, EQUIPMENT, PROCESS, METHOD, DATA OR INFORMATION USED OR PROVIDED ANY THIRD PARTY. C. EXCEPT AS SET FORTH IN SECTION IV, BUSINESS HAS NOT AND DOES NOT RECEIVE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OR ARISING FROM COURSE OF DEALING OR PERFORMANCE, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY OF SERVICE, ERROR-FREE PERFORMANCE OF SERVICE, NONINFRINGEMENT OR NONINTERFERENCE WITH SERVICE. BUSINESS’S SOLE REMEDY FOR BREACH OF ANY REPRESENTATION, WARRANTY OR OTHERWISE UNDER THIS AGREEMENT IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
C.UNDER NO CIRCUMSTANCES MAY BUSINESS RECOVER DAMAGES UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES, ARISING FROM ANY SOURCE, EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
D. UNDER NO CIRCUMSTANCES MAY BUSINESS’S TOTAL CUMULATIVE RECOVERY OF DAMAGES UNDER THIS AGREEMENT EXCEED THE FEES PAID BY BUSINESS UNDER THE AGREEMENT DURING THE 6-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
A. Entire Agreement; Amendment, Modification and Termination. This Agreement contains the entire understanding among the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements, or conditions, express or implied, oral or written, except as herein contained. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof.
B. Binding Nature of Agreement; No Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, personal representatives, successors, and assigns; provided, however, that no Party may assign or transfer its rights or obligations under this Agreement, without the prior written consent of the other parties hereto.
C. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without reference to conflicts of law principles. Venue for any action arising out of or relating, directly or indirectly, to this Agreement shall be Luzerne County, Pennsylvania.
D. Headings. The headings herein have been included for convenience of reference only and shall not be considered in interpreting this Agreement.
E. Waiver and Severability. The waiver of any breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of the same or other provision of this Agreement. If any provision of this Agreement is held to be invalid, the same shall not affect the remaining provisions of this Agreement, which shall continue in full force and effect.
F. Notice. All notices under the Agreement are to be in writing and must be given by first class mail, certified or registered with return receipt requested, or by Federal Express or such other nationally-recognized overnight courier, provided that the recipient is required to sign for such notice, and will be deemed to have been duly given upon receipt. All such notices will be sent to the parties at their respective addresses as listed above in Section I. Any Party may change such party’s address by notice duly given pursuant to this Section.
G. Force Majeure. Publisher shall not be responsible or liable for any damages to Business by reason of a failure to display any Advertisement provided for herein because of any labor dispute, strike, war, riot, insurrection, civil commotion, fire, flood, accident, storm, or any act of God, or any other cause beyond the control of the Publisher. In such event, Business shall have the option of terminating the Agreement with thirty (30) days notice to Publisher, but will still be responsible to remit payment to Publisher for all services provided hereunder.
H. Agencies and Partnership. This Agreement does not create any agency, employment, partnership, joint venture, franchise, or other similar or special relationship between Publisher and Business. Neither Party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other Party or its affiliates, whether express or implied, or to bind the other Party or its affiliates in any respect whatsoever.
I. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any person other than the Parties hereto and their respective successors and permitted assigns.
J. Counterparts. This Agreement may be executed in counterparts each of which shall be deemed to be an original but all of which together shall constitute one and the same Agreement. The Parties agree that a fax or scanned and emailed signature shall have the same legal force and effect as an original.