Effective as of February 20, 2016
The Advertising Agreement (the “Agreement”) between Uloop Inc (“Uloop”) and the owner of certain rental properties (“Advertiser”) consists of any Insertion Orders executed by Uloop and Advertiser together with these Terms and Conditions.
1. Advertising: In accordance with the terms of this Agreement, Uloop shall provide to Advertiser the advertising products and services identified on an Insertion Order (the “Services”). Services include, without limitation, the publication and display on CollegeStudentApartments.com, Uloop.com or other websites or mobile applications (collectively, the “Sites”) of an advertisement or listing (a “Listing”) containing information with respect to one or more properties that is (i) specifically identified on an Insertion Order and/or (ii) otherwise provided by Advertiser to Uloop via a content feed (each a “Property”). Uloop reserves the right, for any reason and at any time, to modify (solely with Advertiser’s approval), reject, cancel or remove a Listing from the Sites. During the term of the Agreement, Uloop may, in its sole discretion, distribute the Listing to affiliated or third-party advertising websites subject to the terms hereof. Uloop does not tolerate discriminatory advertisements and if Uloop becomes aware of any potentially discriminatory content, the Listing will be removed immediately.
2. Advertiser Content: “Advertiser Content” means any text, graphics, data, images, video and/or photographs supplied by Advertiser at any time to Uloop. Advertiser Content shall be owned by and remain the sole property of Advertiser. Advertiser hereby authorizes Uloop to access Advertiser’s or a Property’s website and/or otherwise access and copy information via the Internet or otherwise as may be necessary in order to create a Listing or otherwise Fulfill (as defined herein) the Services and such information shall be considered “Advertiser Content” hereunder. Advertiser hereby grants Uloop a non-exclusive, royalty-free, perpetual, irrevocable and sublicensable right and license to copy, display, distribute, create derivative works from, store and otherwise use the Advertiser Content in connection with any Uloop products or services. Uloop respects Advertiser’s intellectual property and ownership rights in Advertiser Content and shall use commercially reasonable efforts to protect such rights.
4. Confidentiality and User Data: Advertiser and any agent acting on behalf of Advertiser hereby agree not to disclose to any third party or use for any purpose not specifically contemplated herein (i) any User Data (as defined below) or (ii) any non-public business, technical or other information relating to or provided by Uloop, specifically including the terms of this Agreement (including pricing). Advertiser agrees (i) to use User Data solely to fulfill user requests and to provide customer service to the user and (ii) to protect User Data in compliance with all federal, state and local laws and regulations, including the federal Do-Not-Call rules and the federal CAN-SPAM rules. “User Data” means any personal information relating to a user of or visitor to the Sites (including, but not limited to, first name, last name, address, phone number, email address and/or financial information) that is received by Advertiser through Uloop’s provision of the Services, including, without limitation, the contact information of potential renters provided in the form of “leads.”
5. Advertiser’s Representations, Warranties and Indemnity: Advertiser is solely liable for all Advertiser Content. Advertiser represents and warrants to Uloop that (a) the Advertiser Content is true and accurate, is not libelous or defamatory, does not violate any rights of privacy, infringe any trademark, copyright, literary or other rights, or constitute unfair competition with any other party, and complies with all federal, state and local laws and regulations, including fair housing laws and regulations; (b) Advertiser has and will maintain all necessary rights, authorizations and licenses that are required for it to provide Advertiser Content under this Agreement; and (c) any Advertiser Content provided by Advertiser to Uloop is free from any virus, worm, Trojan horse or other similar defects. Advertiser agrees to indemnify, defend and hold harmless Uloop, its affiliates, and their respective employees, agents, officers and directors, from and against any and all claims, liabilities, judgments, damages, costs, losses and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising out of third-party claims related to the Advertiser Content or the Listing, except to the extent arising out of modifications to the Advertiser Content made by Uloop without Advertiser’s consent.
6. Products and Services: Uloop reserves the right to change, in its sole discretion, the characteristics, functionality or features of any product or service it offers or the components of any package of products or services it offers, provided that any such change with respect to a product or service subject to an Insertion Order will not, without prior consent of Advertiser, be changed in a manner that materially and negatively impacts its economic value until after expiration or termination of such Insertion Order (not including any renewal or month-to-month term). Subject to the terms of a particular product, Uloop does not guarantee any particular sort order or ranking of a Listing in search results on the Sites and may position a Listing in any location or sequence within search results, and Uloop may introduce new products that may result in a change in the position of a Listing. During the term hereof, if any product or service provided by Uloop under this Agreement is discontinued, replaced or no longer offered in the relevant market, this Agreement shall remain in full force and effect; provided, that Uloop shall either (i) replace such product and/or service with a product and/or service of comparable value, or (ii) deduct from the Advertiser’s monthly invoice(s) for the period remaining under this Agreement the incremental cost of such product and/or service, as reflected on the applicable market rate card then in effect.
7. Invoicing: Except as otherwise expressly provided herein, all charges for Services on an Insertion Order shall be assessed upon commencement of Fulfillment (defined below) of such Services. Advertiser will be invoiced monthly under this Agreement and amounts are due upon receipt. Advertiser may receive more than one invoice in a month if Advertiser has purchased non-subscription Services. If payment is not received by Uloop within 30 days of the invoice date, (i) such past due amount will bear interest at the lesser of 1.5% per month or the maximum rate allowed by law; and (ii) Uloop may, in its sole discretion, cancel Advertiser’s advertising and all advertising charges will become immediately due and payable, in addition to other remedies provided for herein. Claims for billing errors must be made in writing within five business days after receipt of invoice. Advertiser agrees to pay all costs of collection of past due amounts (including reasonable attorneys’ fees and costs).
8. Term; Termination; Assignment. The term of this Agreement shall be for the number of months set forth in the applicable Insertion Order (the “Term”), and shall commence on the date Uloop receives the signed Insertion Order from Advertiser. If the Term of this Agreement is at least six months, then Advertiser shall have the right to terminate this Agreement by providing Uloop with 30 days prior written notice (as provided below), which may be provided only after 90 days of the Term have elapsed. At the end of the Term, this Agreement shall continue automatically on a month-to-month basis at the monthly rates set forth on the rate card for the relevant market as such rates may vary from time to time (excluding certain limited-inventory products purchased hereunder), unless and until either party shall give to the other 30 days prior written notice of cancellation (as provided below). Additionally, prior to the end of the Term, this Agreement may be assigned or cancelled by Advertiser upon 30 days prior written notice (as provided below) in the event of a change in the Agent or the Owner of the Property, where such change alters the contractual obligation and financial responsibility hereunder. All notices of cancellation or assignment will be considered incomplete and will not be accepted unless they (i) are delivered to Uloop at email@example.com and (ii) specify the Sites, the relevant product descriptions and the assignee’s details (if applicable) for which Advertiser is canceling or assigning the Services.
9. Fulfillment: “Fulfillment” means, with respect to the Services, those actions reasonably necessary for or in furtherance of provisioning, design, display, publishing, distribution or otherwise executing upon the Services in an Insertion Order. These processes will be coordinated by Uloop’s customer service department and include, without limitation, collecting and compiling Advertiser Content for a Listing, scheduling photo shoots, producing videos, enhancing floorplans and collecting contact data and facilitating surveys necessary to prepare ratings and reviews. The timing of completion of Fulfillment will vary depending on the Service. Unless specifically agreed otherwise, Uloop will publish the Listing or otherwise launch a product upon completion of Fulfillment and will immediately notify the Advertiser electronically of such action. Unless Advertiser notifies Uloop within three business days of such notification that it objects to such product as launched, Advertiser is deemed to approve such product. Certain Services may require different or additional Fulfillment time, the schedule for which will be set forth in the product-specific terms and conditions contained herein or otherwise conveyed to Advertiser.
10. DISCLAIMER; LIMITATION OF LIABILITY: EXCEPT AS EXPRESSLY SET FORTH HEREIN, ULOOP MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES TO ADVERTISER OF ANY KIND, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR OTHER WARRANTIES ARISING BY USAGE OF TRADE OR COURSE OF DEALING) REGARDING THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF THE PRODUCTS OR SERVICES PURCHASED OR ANY OTHER WEBSITES OR URLS OWNED OR CONTROLLED BY ULOOP OR ITS AFFILIATES HEREUNDER. EXCEPT AS OTHERWISE AGREED TO HEREIN WITH RESPECT TO A PARTICULAR PRODUCT, ULOOP DOES NOT GUARANTEE ANY PARTICULAR SORT ORDER OR RANKING IN SEARCH RESULTS.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL ULOOP’S LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID TO ULOOP PURSUANT TO THIS AGREEMENT DURING THE SHORTER OF THE TERM DEFINED ON THE INSERTION ORDER (EXCLUDING ANY RENEWAL OR MONTH-TO-MONTH TERM) OR THE PRIOR TWELVE MONTH PERIOD. ULOOP MAKES NO REPRESENTATION OR WARRANTY REGARDING FEATURES OR SERVICES PROVIDED BY THIRD PARTIES. Uloop shall have no liability whatsoever for any failure to provide advertising services due to systems or technological failure or malfunction, or any other circumstances outside of Uloop’s control. Uloop shall not be responsible for any unauthorized use of the Advertiser Content by third parties, including without limitation, unauthorized reproduction and/or tampering by network “hackers.”
11. Miscellaneous: This Agreement (including these Terms and Conditions and an Insertion Order) reflects the full understanding and agreement of the parties and supersedes all prior understandings, agreements and representations, written or oral, with respect to the subject matter of this Agreement. The representations, warranties, covenants and indemnities contained in this Agreement shall survive the termination or cancellation of this Agreement. Any claim or dispute associated with this Agreement between the Parties will be settled by binding arbitration before a single arbitrator under the commercial arbitration rules of the American Arbitration Association. The hearing shall take place in Nashville, TN. The cost of the arbitration shall be borne equally by the parties. Each party shall be responsible for their own attorney’s fees. This Agreement may be executed in any number of counterparts, and delivered by facsimile or electronic signature, all of which taken together shall constitute one and the same instrument.