These Terms and Conditions (this “Agreement”) contain the terms and conditions upon which Local Source Plus, LLC. (“Local Source”) makes its Products available to you. This Agreement takes effect as of the date you have enrolled (the “Effective Date”) into Local Source Affiliate Program. In this Agreement, “you”, “your” or “Affiliate” means the individual, company or entity that has entered into this Agreement with Local Source; “we”, “us”, “our” or “Local Source” means Local Source Plus, LLC.; and “party” and “parties” means you and/or us, as the context requires.
1. PRODUCTS
This Agreement shall apply to and be effective upon Affiliate’s enrollment date into Local Source Affiliate Program. For purposes of this Agreement, the term “Products” may include but is not limited to equipment, marketing materials, advertisement, or anything else that produces some sort of income to the Affiliate. Local Source is not the manufacturer or the service provider of any of the Products it provides to its Affiliates. Any Product related equipment or material provided by Local Source to its affiliates, is the property of Local Source and must be returned to Local Source upon termination of the affiliate agreement.
2. ACCESS TO SERVICE
During the Term, Local Source grants Affiliate a personal, non-exclusive, revocable, and terminable (as set forth in Section 8), nontransferable, non-assignable access to its Products, solely in the form made available by Local Source to Affiliate from time to time. Local Source may provide Affiliate with unique login credentials for each authorized user, which may only be used by a single authorized user. Affiliate is responsible for all use of the Service by any person using the login credentials. Local Source may deactivate any login credentials for any suspected unauthorized use or any misuse of any Product. Affiliate’s use of the Products is subject to Local Source’s Privacy Policy, which is available at localsourceplus.com/privacy, as well as to this Agreement.
3. CHANGES
Local Source may, from time to time and without prior notice, add, delete, or change the Products completely or the Products’ features or functionality.
4. RESTRICTIONS
Affiliate shall not, directly or indirectly, (a) sell, lend, rent, distribute, or otherwise transfer to any third party any Product, or the rights granted to Affiliate with respect to any Product, (b) translate, port, modify, reproduce, distribute, republish, frame, download, cache, or make or create derivative works based on any Product, (c) access or use the Service in a way intended to improperly incurring commission, (d) access or use any Service in order to build or support or assist a third party in building or supporting, products or services competitive to Local Source or its products and services, (e) perform or disclose any benchmark or performance test of any Product or the Service, (f) remove, obscure or alter any Product, (g) use the Service to collect, process or store financial or personal information, (h) use or permit the access to or use of any Product, including the Service, for any unlawful activity, including exporting in violation of applicable law, or (i) access or use the Product, Service or any other deliverable for any use other than the those authorized in this Agreement.
Affiliate acknowledges and agrees that, Local Source without limiting its other remedies, may (but are not required to) remotely suspend or disable Products that we believe have been transferred or are being used in violation of this Agreement.
5. COMMISSION
Commission rates may vary and determined by Local Source based on the Product type and the Affiliate’s business location. Local Source may revise the Affiliate’s Commission based of the performance of the Products at the Affiliate’s location. Affiliate may terminate the Agreement if the new commission rates are not acceptable to the Affiliate (as set forth in Section 8(b)).
6. CONTENT AND DATA
a. Affiliate Content
All content or data received by a Product, or which Affiliate delivers into the Service or otherwise provided by Affiliate to Local Source (whether directly or indirectly, through an affiliate or authorized distributor) (“Affiliate Content”) is and will remain Affiliate’s exclusive property. Affiliate hereby grants Local Source, during the Term, a worldwide, non-exclusive, revocable (as set forth in Section 8(c)), nontransferable, nonassignable (other than as set forth in Section 11), free access, use, host, reproduce, distribute, display, modify and prepare derivative works of all Affiliate Content solely for purposes of providing the Products to Affiliate, and to improve the Products (including the Service).
b. Local Source Content
All content, software functionality or data made available to you through access or use of the Service or otherwise provided by Local Source (“Local Source Content”), is and will remain the exclusive property of Local Source and its networks. You may only use the Local Source Content for your own internal use in connection with a Product.
7. INTELLECTUAL PROPERTY
a. Local Source Intellectual Property
As between the parties, Local Source owns and retains all right, title and interest in and to all of the Products, all improvements, modifications and derivative works of the foregoing, and all intellectual property rights in any of the foregoing. Except for the access to its Program, Local Source expressly grants to Affiliate hereunder, Affiliate is not provided with any license or right to the Products or the intellectual property rights therein, whether by implication, estoppel or otherwise. Affiliate is not granted any right to use any Local Source or any of its products’ trademark, service mark, logo or trade name.
b. Feedback
Affiliate, its authorized users and its other employees and agents may (but are not required to) provide Local Source with suggestions, comments or other feedback regarding the Products (“Feedback”). If Affiliate, its authorized users or its other employees and agents do provide Local Source with Feedback, then Local Source may, and you hereby authorize Local Source to, freely use, disclose, reproduce, license, distribute and otherwise commercially exploit such Feedback in connection with any product, technology, service, specification or other documentation.
8. TERM AND TERMINATION
a. Term
The term of this Agreement starts on the Effective Date (also the Enrollment Date) and continues until terminated in accordance with the terms of this Agreement (“Term”).
b. Termination
You may terminate this Agreement at any time for any reason by notice to Local Source. You acknowledge and agree that Local Source may retain data you have provided or produced in connection with your use of Local Source’s Products for period of 180 days following your termination of this Agreement. Local Source may terminate this Agreement at any time for any reason by notice to you.
c. Termination for Breach
In the event of a material breach by either party that is not cured within 30 days after receipt of written notice thereof from the other party, the non-breaching party may, by written notice to the breaching party, (i) terminate this Agreement, (ii) terminate or suspend the performance of any services or Products hereunder, and (iii) pursue other legal and equitable rights and remedies to which it may be entitled. In addition, Local Source may terminate the Agreement hereunder immediately upon the breach by Affiliate of Sections 2, 4, 6, 7, 10 or 11 hereof. In addition, Local Source may terminate the Agreement hereunder immediately upon the breach by Affiliate of Local Source’s Privacy Policy.
d. Immediate Termination
In addition to Local Source’s other rights under this Agreement, Affiliate acknowledges and agrees that Local Source shall have the right to immediately terminate Affiliate’s access to the Service in the event that Affiliate fails to comply with the limitations on Service usage set forth in Section 2 above.
e. Effect of Termination
Except as set forth in this Agreement, in the event of termination of this Agreement, the rights and obligations hereunder will terminate immediately. In the event of any termination of this Agreement any provision hereof required to enforce the parties’ rights and obligations hereunder or that by its terms continues after such termination, will survive and will continue in effect as described therein.
12. REPRESENTATIONS AND WARRANTIES
a. Mutual Representations and Warranties
Each party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and this Agreement has been duly authorized by all necessary corporate (or other entity) action, and (ii) this Agreement is the legal, valid and binding obligation of it, enforceable against it in accordance with the Agreement’s terms.
b. Affiliate Representations and Warranties
You represent, warrant and covenant that you have all rights and licenses (if) necessary to provide the Affiliate Content to us and grant us the licenses set forth herein and that the Affiliate Content and the use of it as contemplated by this Agreement does not and will not infringe, misappropriate or violate any intellectual property rights of any third party, violate any right of privacy or publicity or breach any contract to which Affiliate is a party or bound.
9. WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8 ABOVE, (A) THE PRODUCTS, THE SERVICE, ANY OTHER DELIVERABLES AND LOCAL SOURCE CONTENT ARE PROVIDED “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (B) LOCAL SOURCE HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS NETWORKS, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND REGARDING THE PRODUCTS, SERVICES, DELIVERABLES AND LOCAL SOURCE CONTENT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTY THAT THEIR USE WILL PRODUCE ANY RESULTS, FINANCIAL OR OTHERWISE. NEITHER LOCAL SOURCE NOR ITS NETWORKS SHALL BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (A) FOR SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF LOCAL SOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) FOR DAMAGES ARISING OUT OR IN CONNECTION WITH THIS AGREEMENT IN THE AGGREGATE IN EXCESS OF THE FEES PAID OR PAYABLE BY AFFILIATE PURSUANT TO THIS AGREEMENT.
10. CONFIDENTIALITY
If the exchange of confidential information between Affiliate and Local Source is already governed by a Mutual Non-Disclosure Agreement between the parties (the “NDA”), the terms of such NDA will govern all Confidential Information exchanged between you and us pursuant to this Agreement. If no such NDA is in place, then each recipient of Confidential Information under this Agreement shall (a) use and copy the Confidential Information only for purposes of performing its obligations under this Agreement, (b) hold the Confidential Information in strict confidence, and (c) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as the recipient protects and safeguards its own confidential information (but not using less than a reasonable degree of care). The recipient may disclose that portion of the Confidential Information which, in the judgment of its counsel, the recipient is required to disclose by law, by regulation, or pursuant to the order or requirement of a court, administrative agency or other governmental body with proper jurisdiction; provided that the recipient notifies the disclosing party a reasonable time prior to making such disclosure and cooperates with the disclosing party’s efforts to seek a protective order or otherwise prevent or restrict such disclosure. “Confidential Information” means all information disclosed by one party to the other that is designated, at the time of disclosure, as confidential or that is of a nature that would reasonably be considered confidential, and does not include information that the recipient can show (i) is known publicly through no breach of this Agreement, (ii) was in its possession free of any obligation of confidence at the time of disclosure, (iii) was received from a third party free to disclose such information without restriction, or (iv) was independently developed without using or referring to the information of the disclosing party or breaching this Agreement. Local Source’s Confidential Information includes without limitation the Local Source Content and all information relating to Local Source’s Products and Services, and Affiliate’s Confidential Information includes the Affiliate’s Content.
11. ASSIGNMENT
This Agreement may not be assigned by either party without the prior written consent of the non-assigning party; except that Local Source shall have the right to assign this Agreement to any of its Networks or in connection with a merger or other business combination in which Local Source is not the surviving entity or in connection with any sale of all or substantially all of the capital stock of Local Source or the assets of Local Source or its Networks related to this Agreement. Any attempted assignment in violation of this provision is null and void.
12. FORCE MAJEURE
If Local Source is unable to perform any of its obligations under this Agreement because of severe weather, natural disasters, acts of God, riots, wars, theft, governmental action, acts of our suppliers, or other events beyond our reasonable control, then we are relieved from our performance of such obligations to the extent, and for the duration, that such performance is prevented by such events.
13. MODIFICATIONS
We may revise this Agreement from time to time to better reflect: (a) changes to the law, (b) new regulatory requirements, (c) improvements or enhancements made to our Services or Products. If an update affects your use of the Services or your legal rights as a user of our Services, we’ll notify you prior to the update’s effective date by sending an email to the email address provided by you or via an in-product notification. This updated Agreement will be effective no less than 30 days from when we notify you. If you don’t agree to the updates we make, please terminate the Agreement before they become effective. Where applicable, we’ll offer you a prorated Commission based on the rates of your Agreement. By continuing to use or access the Services after the updates come into effect, you agree to be bound by the revised Agreement.
14. MISCELLANEOUS
This Agreement is governed by the laws of the State of Florida, without regard to conflict of law rules. The UN Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties shall bring any disputes arising out of or related to this Agreement exclusively in a court located in Hillsborough County, Florida and each party hereby submits to the personal jurisdiction of such courts. Each party is an independent contractor and neither party’s personnel are employees or agents of the other party for any purpose whatsoever. Nothing hereunder will constitute, create, give effect to or otherwise recognize a joint venture, partnership or business entity of any kind, nor will anything hereunder constitute either party as the agent or representative of the other. Headings are for convenience. No presumption is to operate in either party’s favor as a result of who drafted this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation,” and the word “or” is not exclusive. This Agreement supersedes all prior discussions and writings regarding (and constitutes the entire agreement between the parties with respect to) the subject matter of this Agreement, except with respect to any NDA described in Section 10. The parties may only amend this Agreement in writing. If any provision of this Agreement is for any reason held to be invalid, illegal, or unenforceable under applicable law in any respect, then such invalidity, illegality, or unenforceability will not affect the other provisions of this Agreement, this Agreement will be construed as if such invalid, illegal, or unenforceable provision were excluded from this Agreement, and the court in its discretion may substitute for the excluded provision an enforceable provision which in economic substance reasonably approximates the excluded provision.