1. The Service.
1.1 Cme4.com provides sales and marketing services to businesses, including
posting business listings of such businesses on the website operated by or
for Cme4.com (the "Service") currently located at www.cme4.com (the
"Site") AND ALL CME4(ASSOCIATED, SUB TITLED SITES).COM.
1.2 Throughout the term of this
Agreement (subject to Section 2.3(a)), Cme4.Com will list Customers
business information on the Site, including the information in the format
provided by the Customer to local sales representative and/or during the registration
with the Site (the "Listing"). Any and all listing changes will
be made through the office of Cme4.com. The customer is to fax any and all
changes to our fax number and a change charge of twenty-five dollars will
be billed to the customers credit card.
2.1 In consideration of the Service to be provided by or for Cme4.com, Customer
shall pay Cme4.Com the applicable fees specified on the Listing Rates and
Features page of the Site on an annual basis throughout the term of this Agreement.
Payment for the first year of Service shall be due upon execution of this
Agreement. Customer shall pay Cme4.Com for each subsequent year of Service
within ten (10) days after the anniversary of the date such Listing was initially
posted on the Site.
2.2 Customer shall pay Cme4.Com
all amounts due hereunder by depositing the appropriate amount into an account
designated by Cme4.Com; provided that if specified by Customer on the previously
completed Subscription Order, and subject to Cme4.Coms approval, in
lieu of such deposits Cme4.Com shall debit Customers designated credit
2.3 If Cme4.Com does not receive
the full amount owed by Customer for the Service in a given annual period
due to bank charges, transfer fees, or the like, Cme4.Com will re-invoice
Customer for the shortfall amount. Except as set forth in the foregoing sentence,
if Cme4.Com does not receive the full amount owed by Customer for the Service
in a given annual period within thirty (30) days after its due date, Cme4.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, if such amount
exceeds an applicable maximum amount allowed by law, the maximum allowed)
for each month or fraction thereof the overdue amount remains unpaid and/or
(c) terminate this Agreement. In the event of suspension or termination of
the Service, in addition to paying any past due balance and/or debt service
fees, Customer shall pay Cme4.Com twenty five dollars ($25.00) in order to
reactivate the Service.
3. Rules and Regulations
3.1 The Site contains information, text, designs, images, graphics, style
templates, icons, HTML code, sound and video recordings, animation and other
materials and effects that are protected by copyrights, trademarks, service
marks, trade dress or other intellectual or proprietary rights owned by Cme4.Com
or other third parties (collectively, the "Materials"). Such Materials
are provided for review for individual or internal business purposes. Any
other use of the Site or the Materials is strictly prohibited without the
express written permission of Cme4.Com or the applicable rights holder (including
without limitation, modification, republication, deletion, transmission, public
performance, distribution, proxy caching, uploading, posting, reproduction,
redistribution or any other dissemination of the Site or the Materials).
3.2 Customer must comply with
all applicable laws, regulations, or conventions including those related to
data privacy, international communications, and exportation of technical or
3.3 Cme4.Com reserves the right
to determine in its sole discretion whether Customer is in compliance with
this Section 3.
4 Disclaimers; Limitation on Liability
4.1 CME4.COM DOES NOT GUARANTEE THAT THE SERVICE WILL BE CONTINUOUS OR PROVIDED
AT ANY PARTICULAR TIME, OR THAT THE FACILITIES OR PROCEDURES FOR ACCESS TO
CUSTOMERS INFORMATION AND DATA CONTENT (INCLUDING THE LISTING) WILL
BE SECURE. Cme4.com reserves the right to interrupt access to the Cme4.com
server containing Customers information and data content in order to
perform regular and emergency maintenance as needed.
4.2 THE SERVICE AND THE MATERIALS
ARE PROVIDED ON AN "AS IS" BASIS AND AS AVAILABLE, WITHOUT ANY WARRANTY
OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. Cme4.com EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT
WITH RESPECT TO THE SITE (INCLUDING THE MATERIALS) OR THE SERVICE.
4.3 NEITHER Cme4.com NOR ANYONE
ELSE INVOLVED IN PROVIDING SERVICES UNDER THIS AGREEMENT WILL BE LIABLE TO
CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIMS OR DAMAGES FROM THE USE OF OR INABILITY
TO ACCESS THE LISTING, OR FOR MISTAKES, OMISSIONS, SERVICE INTERRUPTIONS,
DELETION OF FILES, LOSS OF DATA, ERRORS, DEFECTS, MISDELIVERIES, DELAYS IN
OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED
TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED
ACCESS TO Cme4.COM'S SERVER, RECORDS, PROGRAMS OR SERVICES. CME4.COM SHALL
NOT BE LIABLE FOR ANY LOSSES OR DAMAGES WHATSOEVER RESULTING FROM ANY FAILURE
OF THE INTERNET.
4.4 BY ENTERING INTO THIS AGREEMENT,
CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CME4.COM'S LIABILITY IS SPECIFICALLY
LIMITED TO THE AMOUNTS PAID TO AND RECEIVED BY CME4.COM FOR THE SERVICE. CUSTOMER
WAIVES ALL RIGHTS OF RECOVERY OF ANY DAMAGES, WHETHER ACTUAL, SPECIAL, PUNITIVE
OR CONSEQUENTIAL, THAT CUSTOMER MAY INCUR OVER AND ABOVE SAID AMOUNTS, INCLUDING,
WITHOUT' LIMITATION, DAMAGES FOR LOST DATA, USE, PROFITS, INCOME, SAVINGS,
LOSS OF OR DAMAGE TO PROPERTY, GOODWILL OR ANY CLAIMS OF THIRD PARTIES WHATSOEVER
WITH RESPECT TO THE SITE (INCLUDING THE MATERIALS) OR THE SERVICE. Some states
do not allow the exclusion or limitation of liability of consequential or
incidental damages, so the above exclusions may not apply to all users; in
such states liability is limited to the fullest extent permitted by law.
5 Indemnification; Representations
5.1 Customer agrees to defend, indemnify, and hold Cme4.com harmless from
and against any and all claims and liabilities arising from (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 Cme4.com by Customer;
(b) any claim that any Listing or any item sold or advertised in connection
with information and data provided to Cme4.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 defamatory, libelous or illegal, or allegedly defamatory,
libelous or illegal material contained within information and data provided
to Cme4.com by Customer; (d) any material infringing or allegedly infringing
on the proprietary rights (including but not limited to intellectual property
rights) of a third party; (e) any third party claim arising out of third party
access or use of any information and data provided to Cme4.com by Customer
and (f) any breach by Customer of this Agreement. If any action or proceeding
is brought against Cme4.com by reason of any such claims, Customer shall defend
such action or proceeding at its sole cost by counsel satisfactory to Cme4.com.
Cme4.com shall be promptly notified by Customer in the event that any claim
or demand is 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 Cme4.com,
which consent shall not be unreasonably withheld.
5.2 Customer shall not use the
Site (including the Service and the 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 persons consent), (c) to infringe, interfere with, abuse
or otherwise violate the legal rights of any third party, (d) to send spam,
flame or, introduce any trojan horses or viruses, or (e) for telemarketing,
direct marketing, or other similar activities.
5.3 Customer warrants and represents
as follows: (a) Customer is the owner of, or has the right to enter into this
Agreement on behalf of the owner of, all right, title and interest, including
copyright, if any, in and to any or all of the Listing, and the Listing will
be furnished to Cme4.com free and clear of any and all encumbrances, liens,
bugs and/or viruses of any nature whatsoever; (b) the Listing, and any portion
thereof, does not in any way violate any existing law, or infringe upon, misappropriate,
violate or constitute invasion or any proprietary right of any third person,
firm, corporation or other entity, either in whole or in part; (c) Customer
has obtained or will obtain prior to execution of this Agreement all necessary
releases, including without limitation the releases of all persons or organizations
whose name, voice, likeness, portrayal, impersonation, or performance is included
in the Listing; and (d) Customer is solely responsible for, and has paid or
will promptly pay, all amounts due any third-party content provider or other
person or entity that has a right to receive any royalty or other payment
as a result of the transmission or other use of the Listing as contemplated
by or provided under this Agreement. Without limiting the foregoing, Customer
agrees to notify Cme4.com in writing immediately in the event that any warranties
and representations contained in this Agreement are no longer true.
6 Responsibilities of User.
is solely responsible for (a) invoicing and collecting any fees which Customer
charges to users of the Internet that access the Listing; (b) paying all taxes
of any nature which become due with regard to the Service, except for taxes
on Cme4.com's income, irrespective of which party may be responsible for reporting
or collecting such taxes; (c) ensuring that the Listing does not contain any
data or information which violates any law or regulation; (d) any content
provided by or for Customer to Cme4.com, including, but not limited to, the
accuracy and availability of the Listing; and (e) providing assistance to
those who access the Listing.
7 Property Rights.
all right, title and interest in and to (a) Cme4.coms trade names, service
marks, inventions, copyrights, trade secrets, patents, and know-how relating
to the design, function, or operation of the Service or the Site and of the
hardware and software systems and resources necessary to provide the individual
elements of which they consist. Customer is expressly prohibited from reproducing,
distributing, republishing or retransmitting any materials posted at the Site
or stored on Cme4.coms servers, including all graphic designs, style
templates, icons, HTML code and other graphic elements without Cme4.coms
prior written consent. This Agreement does not constitute a license to use
Cme4.cms trade names or marks. Any such license, if granted, must be
the subject of a separate written agreement.
Cme4.com reserves the
right to institute "filters" or other mechanisms to minimize Internet
abuse. Cme4.com will not monitor or disclose Customers private e-mail
messages unless required by law, but Cme4.com will cooperate with law enforcement
authorities and will notify such authorities if it suspects Customer is engaged
in illegal activities. All information exchanged between Cme4.com and Customer,
unless otherwise agreed in writing in advance, is non-confidential.
9 Relationship of the Parties.
The relationship between Cme4.com and Customer is that of vendor and vendee,
not as joint venturers, franchiser/franchisee, or employer/employee. This
Agreement is a commercial agreement entered into for business purposes, not
a consumer agreement. Customer has no authority, apparent or otherwise, to
contract for or on behalf of Cme4.com, or in any other way legally bind Cme4.com
in any fashion.
or claim arising out of or relating to this Agreement, or the breach thereof,
shall be settled by binding arbitration before a single arbitrator in Temecula,
California, and in accordance with the rules then in effect of the American
Arbitration Association. Judgment rendered upon the award, including reasonable
attorney's fees as may be awarded the prevailing party, may be entered in
any court having jurisdiction. Nothing in this Agreement shall prohibit or
restrict either party from seeking provisional relief in a court of competent
jurisdiction, including, but not limited to, a temporary restraining order,
preliminary injunctive relief, or a writ of attachment.
11 Term; Termination.
terminated, this Agreement is effective for the term stated in the Subscription
Order. Unless terminated by either of the parties in accordance with this
Agreement, the term of this Agreement shall be automatically renewed for subsequent
terms of the same length. This Agreement may be terminated by the parties
as follows: (a) Unless otherwise provided for in this Agreement, either party
may terminate this Agreement with or without cause, upon thirty (30) days
notice to the other; or (b) Cme4.com may terminate this Agreement immediately
if, based on Cme4.coms sole judgment, it determines that Customer has
breached this Agreement. In the event either party terminates this Agreement,(i)
Customer shall pay Cme4.com all fees outstanding as of the date of such termination
(ii) Cme4.com may, in its discretion, make or maintain, copies of Customers
data files and records for archival purposes only and (iii) the following
provisions shall survive in accordance with their terms: 4, 5, 7 and 8 through
may not transfer or assign its rights and obligations under this Agreement
directly or indirectly without the prior written consent of Cme4.com.
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
14 Governing Law.
shall be governed by and construed in accordance with the laws of the State
may be sent by e-mail, fax, express mail, mail, or registered mail to the
e-mail address, fax number, or address most recently provided and will be
effective upon transmission.
16 Entire Agreement.
sets forth the entire agreement and understanding between the parties and
merges all prior discussions between them, including that Customer shall follow
the terms and conditions of the Site posted on the Site that are hereby incorporated
by reference into this Agreement, as they may be changed from time to time
by Cme4.com in its sole discretion. Cme4.com may make changes to this Agreement
upon ten (10) days' written notice to Customer, advising of the change and
the effective date thereof. Utilization of the Service by Customer and/or
any clients or customers of Customer, following the effective date of such
change shall constitute acceptance by Customer of such change(s). Otherwise,
this Agreement may not be modified except by the written consent of both parties.