RECIPE CENTRAL USER AGREEMENT
SUMMARY OF IMPORTANT LEGAL INFORMATION
This Recipe Central User Agreement (this “Agreement”) is a legal agreement between you, the Publisher and your Publisher Company (as defined below) (collectively, “Publisher”), and Recipe Central, Inc. (“Recipe Central”) and governs Publisher’s use of the Recipe Central Service provided by Recipe Central hereunder, which enables Publisher to offer the Recipe Content and Recipe Widget to Users via a Microsite created by Recipe Central for Publisher and accessed through the Publisher Sites.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING THE RECEIPE CENTRAL SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT HAS THE SAME FORCE AND EFFECT AS IF IT WERE EXECUTED IN A WRITTEN DOCUMENT BY YOU AND RECIPE CENTRAL.
1. Acceptance of this Agreement
To use the Recipe Central Service and publish and display the Recipe Content, Recipe Widgets and Microsite through the Publisher Sites, you must agree to all of these terms and conditions by checking the “I Agree” button before signing up for or accessing the Recipe Central Service. By clicking the “I Agree” button and accepting this Agreement, you agree to and are bound by the terms, conditions, policies and notices contained in this Agreement, including without limitation conducting this transaction electronically, certain third party terms and conditions, disclaimers of warranties, damage and remedy exclusions and limitations, and a choice of Tennessee law and venue.
In addition, by checking the “I Agree” button, you represent and warrant that you are an authorized representative of the organization, company, institution, enterprise or other entity that publishes, displays, owns and operates the Publisher Sites (the “Publisher Company”). You represent and warrant that you have the power and authority to bind the Publisher Company to this Agreement. As used in this Agreement, “you,” “your,” “yours” and “Publisher” refers not only to you, the individual checking the “I Agree” button, but also the Publisher Company.
Recipe Central shall not be liable, and you agree to indemnify and hold Recipe Central harmless for, all damages, liabilities, penalties, costs and expenses incurred by Recipe Central as a result of any violation or failure by you to comply with this Section 1. If you or the Publisher Company do not to agree to this Agreement, or if you are not an authorized representative with the authority to bind the Publisher Company, you should immediately cease your access and use of the Recipe Central Service and this website.
You acknowledge and agree that Recipe Central may change or modify any of the terms and conditions contained in this Agreement or any policy governing the Recipe Central Service, at any time, by posting the new agreement or policy on the Microsite or the Publisher Site(s) through which you access the MicroSite (or such other URL as Recipe Central may provide). Upon posting of any new agreement, such new agreement or policy will govern the Recipe Central Service and you are deemed to accept and agree to be bound by such new agreement when you use and/or continue to offer the Recipe Central Service; provided, that if changes to the terms of this Agreement materially reduces your rights or increases your responsibilities you will be (i) provided either 30 days’ notice by posting such notice on the Recipe Central Service, Microsite, or applicable Publisher Site, or (ii) be required to accept such new agreement before continuing use of the Recipe Central Service.
In consideration of the mutual covenants, agreements and warranties stated in this Agreement, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Recipe Central and Publisher each agree to the terms and conditions described below.
2. Definitions. As used herein, each of the following terms shall have the meanings attributed to them as follows:
- Advertising means all brand-focused and/or performance-based promotions, banner advertisements, rich media advertisements, contextual targeted links, sponsorships, content integration, other online advertising units sold by Recipe Central and displayed on the MicroSite through the Recipe Central Service.
- Click means any click by a User on Recipe Content that generates a Visit, excluding Invalid Clicks.
- CPMV Fee means the charge per thousand visits established between Publisher and Recipe Central in Publisher’s Account (as defined in Section 3.a. below.
- Intellectual Property Rights means any patent rights, copyright, trade secret rights, trademark rights (including rights in trade names, trade dress, service marks, URLs or other source of business identifiers), rights in industrial property and industrial designs, moral rights and all other intellectual property or proprietary rights arising under the laws of any jurisdiction worldwide, including all rights or causes of action for infringement or misappropriation of any of the foregoing, and all rights in any registrations, applications, renewals, extensions, continuations, continuations-in-part, divisions or reissues for any of the foregoing.
- Invalid Click/Visit shall mean any click or visit: (a) generated by robots, spiders, web crawlers, or any other automated or fraudulent process, device, algorithms, or methodology; (b) that occurs as a result of automatic spawning of browsers or automated redirects; (c) that occurs as a result of any incentive such as cash, credits, or loyalty points; (d) generated as a result of conduct intended to artificially increase or inflate the number of Clicks; (e) originating from Publisher’s IP addresses or computers under Publisher’s control; (f) originating from countries outside of the US and Canada; (g) that is otherwise fraudulent as determined by Recipe Central in its reasonable discretion; (h) on any expired or invalid Recipe Content; or (i) co-mingled with a significant number of invalid clicks described above.
- Microsite means a website branded with Publisher Marks created by Recipe Central pursuant to certain criteria selected by Publisher during the Account (as defined below) registration process and hosted by Recipe Central and which is accessed from a Publisher Site.
- Organic Recipe Content means free Recipe Content hosted on the Recipe Central Site that will be provided to Publisher on the Microsite or through the Recipe Widgets.
- Publisher Marks means any of the trademarks, trade names, service marks, brands and logos owned or licensed by Publisher.
- Publisher Site Content means any data, images, text, content, code or other copyrightable materials or other information or materials of any kind (other than the Recipe Content, Recipe Widgets, Recipe Central Code, Microsite and Recipe Central Marks) that are included in, provided through or used in connection with the Publisher Site(s).
- Publisher Site(s) means the website(s) operated by Publisher, through any media or platform now known or hereafter defined, on which Publisher places the Recipe Central Code to link to and dispaly the Microsite, Recipe Content and Recipe Widget.
- Recipe Central Code means the HTML code, and any other code or software, that Recipe Central provides to Publisher to enable Publisher to display the Microsite, Recipe Content and Recipe Widgets on the Publisher Site(s).
- Recipe Central Marks means any graphic images, trademarks, trade names, service marks or logos owned or licensed by Recipe Central or its affiliates, including without limitation RECIPE CENTRAL, EASY KITCHEN, and RELISH.
- Recipe Central means Recipe Central Inc. and its affiliates, parents, subsidiaries, employees, officers, directors, employees and agents.
- Recipe Central Service means the free, ad-supported, white-labeled service provided by Recipe Central hereunder which enables Advertising, Recipe Content and the Recipe Widgets to be displayed on the Microsite through the use of Recipe Central Code on the Publisher Sites in accordance with the terms and conditions set forth herein.
- Recipe Central Site means the website accessible via the URL www.recipecentral.com and/or any new or successor URL designated by Recipe Central.
- Recipe Content means the Organic Recipe Content and Sponsored Recipe Content and any thumbnails, photos, headers or other teaser display thereof.
- Restricted Content means any content, advertising, code or terms that: (a) promote or are related to fraudulent, deceptive or illegal activities (illegal drugs, phishing, terrorism, criminal activities, contests, pyramid schemes or chain letters); (b) promote or are related to tobacco, gambling or weapons; (c) are related to pornographic or obscene material; (d) are related to excessively graphic or explicit violence; (e) are defamatory, inappropriate or profane; (f) are disparaging to Recipe Central or its recipe providers; (g) are discriminatory or constitute hate speech, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group; (h) promote or contain viruses, worms, trap doors, hidden sequences, hot keys, time bombs, corrupted files, cracks or other malicious code or materials that are intended to or may damage or render inoperable software, hardware or security measures of Recipe Central, any User, or any other third party; (i) contain advertising functionality that is intrusive, deceptive or contrary to generally accepted industry standards or applicable law; (j) are in violation of any local, state, or federal, ordinance, regulation, rule, law, statute, or other guidance; or (k) are otherwise designated by Recipe Central as unacceptable content from time to time.
- Sponsored Recipe Content means paid recipe content sold to Recipe Central by third parties that are provided to Publisher for display on the website and branded with third party trademarks and identified as sponsored content.
- User means a human end user that accesses Microsite.
- User Data means data concerning the characteristics and activities of Users that is collected through use of the Recipe Central Service.
- Visit means an individual visit to the Microsite within a 24-hour period through a Click. For avoidance of doubt, multiple Visits within a 24-hour period will be seen as one Visit to the Microsite.
- Set-Up and Accounts. Your use of the Recipe Central Service will require you to set-up and maintain an account on behalf of you and your Publisher Company (that includes setting up a user name and password) (your “Account”). After acceptance of this Agreement and completion of the registration of your Account, you will receive a username and password. You are solely responsible for maintaining the confidentiality of your Account information, including your user name and password, and for any and all activity that occurs under your Account. You agree to notify Recipe Central immediately of any unauthorized access to or use of your Account or password. You may not use the account, user name or password of any other entity, company, organization or person at any time without the express written permission and consent of the holder of such the Account, user name or password.
- Development and Hosting of Microsite and Recipe Widgets. Recipe Central will develop and host the Microsite and will provide Publisher with necessary Recipe Central Code to enable the display of the Microsite through the Publisher Site(s).
- Publisher Site(s). Publisher acknowledges and agrees that Publisher shall be solely and exclusively responsible and liable for the Publisher Sites, including without limitation all content, information, material, disclaimers and data displayed, published or transmitted on or through the Publisher Sites and websites therein. Publisher acknowledges and agrees that Recipe Central shall have the right to suspend and/or terminate Publisher’s use of the Recipe Central Service on any Publisher Site to the extent Recipe Central deems the website to be objectionable in any manner, including without limitation any Publisher Site that is or is perceived by Recipe Central to (i) contain Restricted Content; (ii) be libelous, defamatory, or infringing, misappropriating or violating the intellectual property rights of others; or (iii) be in violation of any provision of this Agreement or any applicable law, rule, regulation or IAB (or similar association) guideline. In addition, to the extent Recipe Central objects to any Publisher Site, Recipe Central shall provide written notice to Publisher of its objection (which may be given by email) and Publisher shall cause the applicable Publisher Site to discontinue the use of the Recipe Central Service within twenty-four (24) hours of the date of the aforementioned notice.
- Recipe Content. Recipe Central will endeavor to cause the Recipe Content to be displayed in the Microsite in accordance with the options selected by you through your Account; provided, that Publisher acknowledges and agrees that Recipe Central may preempt your selections at any time as necessary for Recipe Central to fulfill its responsibilities third-parties.
- Advertising. Recipe Central will implement various Advertising technologies and may require specific settings on the Microsite to enable the display of Advertising in connection with the Recipe Central Service. Publisher agrees to comply with such settings. Recipe Central may add or eliminate support for new Advertising technologies with or without notice in its sole discretion.
- Maintenance; Support. Recipe Central shall make help desk support available to Publisher during the hours of 9 a.m. to 5 p.m. Central Time, Monday through Friday (excluding national holidays and others days determined by Recipe Central), for issues relating to the integration and use of the Microsite and the Recipe Central Service. In no event shall Recipe Central be obligated to provide support services directly to Users. Except as otherwise expressly provided in this Agreement, Publisher is solely responsible for all development, operation, maintenance, content, and end user support relating to the Publisher Site(s).
4. LICENSE AND RESTRICTIONS
- License. Subject to the terms and conditions of this Agreement, Recipe Central hereby grants Publisher, during the Term, a limited, non-exclusive, non-sublicensable, non-transferable, revocable, license to insert the Recipe Central Code on pages of the Publisher Site(s) to display the Microsite, Recipe Content and Recipe Widget to Users. All rights not expressly granted to Publisher with respect to the Recipe Central Services are reserved by Recipe Central and Recipe Central’s licensors, and Publisher shall not use the Recipe Central Service, including without limitation Recipe Central Code, Microsite, Recipe Widgets or Recipe Content, except as expressly provided herein.
- Restrictions on use of Recipe Central Service. Except as expressly authorized in this Agreement, Publisher shall not, directly or indirectly: (i) modify, edit, filter or truncate the Recipe Content, Recipe Widget or the Recipe Central Code; (ii) re-rank or modify the order of Recipe Content received from Recipe Central; (iii) decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code of the Microsite, Recipe Widget, or any other software underlying the Recipe Central Service; (iv) execute bulk downloads of the Recipe Content or access, store, aggregate or use the Recipe Content for any purpose other than to display the Recipe Content to Users on the Microsite; (v) disable or modify any hyperlinks contained in any Recipe Content, the Microsite or the Recipe Widgets; (vi) copy, modify, redistribute, resell, lease, assign, rent, sublicense, distribute, time-share, or prepare any derivative works from the Recipe Central Code, Microsite, Recipe Widgets or Recipe Content; (vii) use the Recipe Content as a leads list; (viii) alter, remove, obscure or destroy any attribution, proprietary markings or confidential legends placed upon or contained within the Recipe Central Code, Microsite, Recipe Widgets or Recipe Content, or any related materials; (ix) incorporate the Microsite or Recipe Content as the primary content in the Publisher Site(s); or (x) supply or authorize any Publisher Site Content that contains Restricted Content.
5. PROPRIETARY RIGHTS
- Recipe Central Property. As between Publisher and Recipe Central, Recipe Central exclusively owns and retains all right, title and interest in and to the Recipe Central Service, including without limitation all Recipe Central Code, the Microsite, Recipe Widgets, Recipe Content, Recipe Central Site, Recipe Central Marks, and all Intellectual Property Rights in all of the foregoing, including without limitation the look and feel and any and all derivative works, improvements, enhancements of the foregoing (collectively, the “Recipe Central Property”). Publisher shall have no rights to the Recipe Central Property except for the limited license to display the Receipt Content and Recipe Widget on the Microsite and use the Recipe Central Code in connection with the Recipe Central Service as expressly set forth in this Agreement. For avoidance of doubt, under no circumstances shall Publisher’s use or display of the Recipe Central Property in conjunction with the Publisher Site(s) or Publisher Site Content constitute or result in a derivative work, compilation or joint work, and Publisher shall not make any such claim.
- Publisher Property. As between Publisher and Recipe Central, Publisher exclusively owns and retains all right, title and interest in and to the Publisher Sites, Publisher Marks, and Publisher Content and all Intellectual Property Rights therein, including the look and feel and any and all derivative works, improvements, enhancements of the foregoing (collectively, the “Publisher Property”).
- Information Rights.
- Publisher acknowledges and agrees that Recipe Central may collect in connection with this Agreement User Data for Recipe Central and its affiliates business purposes through various technologies, including, without limitation (i) serving a first-party tracking cookie to each User viewing the Microsite that tracks and stores anonymous information about such User’s use of the Microsite and that allows Recipe Central to re-target Recipe Content when such User returns to the Microsite or lands on any page of a Publisher Site displaying a Recipe Widget; or (ii) including one or more third-party anonymous tracking pixels in Recipe Widgets. User Data collected by Recipe Central may include personally identifiable or sensitive information (as defined by applicable law) provided by Users through the Recipe Widget, Recipe Content, Microsite and any other component of the Recipe Central Service. All User Data and any other data and information collected or obtained in connection with, analyzed by or processed with the Recipe Central Service is the sole and exclusive property of Recipe Central. Publisher acknowledges and agrees that such User Data may be shared by Recipe Central with third parties, including without limitation any Recipe Central advertising client, publisher, or content provider.
- Data Security. Publisher shall maintain a data security program that includes physical, technical, and managerial procedures that are up-to-date and generally accepted in the industry and that are effective at preventing unauthorized access to or use of the Recipe Central Code and/or Recipe Content.
- Subject to the terms and conditions of this Agreement, Recipe Central hereby grants to Publisher a non-exclusive, worldwide, limited, non-transferable, non-sublicenseable license, during the term of this Agreement, to use the Recipe Central Marks solely as provided by Recipe Central for display in the Recipe Content, Recipe Widget and Microsite. Any other use of the Recipe Central Marks by Publisher shall be subject to the prior written approval of Recipe Central, in each instance. Publisher’s use of the Recipe Central Marks shall conform to all written policies and guidelines regarding trademark and advertising usage as Recipe Central may provide to Publisher from time to time. In addition to any right or remedy available to Recipe Central in connection herewith, if Recipe Central becomes aware of any use by Publisher of the Recipe Central Marks that Recipe Central deems improper in its sole discretion, Recipe Central will notify Publisher of such improper use and Publisher will promptly correct such use, or cease such use as directed by Recipe Central.
- Subject to the terms and conditions of this Agreement, Publisher hereby grants to Recipe Central a non-exclusive, worldwide, limited, non-transferable, non-sublicenseable license, during the Term, to use the Publisher Marks solely as provided by Publisher and in connection with Recipe Central’s marketing and promotion of the Recipe Content in connection with the Microsite. Recipe Central’s use of the Publisher Marks shall conform to all written policies and guidelines regarding trademark and advertising usage as Publisher may be provide to Recipe Central from time to time.
- Publisher agrees not to (and to not authorize or encourage any third party to): (A) use the Recipe Central Marks and other distinctive brand features or any copyright or other proprietary rights associated with Recipe Central, its affiliates or the Recipe Central Service for any purpose without the express written consent of Recipe Central; (B) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Recipe Central or its affiliates; or (C) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Recipe Central Service.
- Publisher shall place a link to the Microsite within the site-wide header navigational links for each Publisher Site registered to use the Recipe Central Service as noted in Publisher’s Account.
6. CPMV FEE AND PAYMENTS
- Reports. Recipe Central will provide Publisher with access to the online reporting tools generally made available to Recipe Central customers and that are designed to show the estimated monthly Visits to the Microsite (“Reports”).
- CPMV Fees. On a monthly basis during the term of this Agreement, Recipe Central shall pay to Publisher the applicable CPMV Fee based on the information set forth in the Reports. Notwithstanding the foregoing, Recipe Central shall have no obligation to pay any CPMV Fees based on Invalid Clicks. Recipe Central reserves the right to withhold all or any portion of the CPMV Fees pending Recipe Central's reasonable investigation of any purported Invalid Visits.
- Payments; Taxes. Recipe Central shall pay to Publisher the CPMV Fees due for any calendar month during the term within sixty (60) days after the end of such calendar month. Recipe Central shall make such payments by PayPal, ETF or check, or as otherwise specified in Publisher’s Account. Notwithstanding the foregoing, Recipe Central will have the right to carry over and not issue payments for any CPMV Fees payable hereunder until: (i) the cumulative amount of the CPMV Fees owed to Publisher is at least $100; and (ii) Publisher has provided all necessary registration information, including any necessary tax reporting information. To ensure proper payment, Publisher is solely responsible for providing and maintaining in Publisher’s Account accurate address, contact and payment information. Publisher shall be responsible for any and all taxes imposed on Publisher in connection with amounts received under this Agreement or service provided to Publisher under this Agreement. Non US-based customers may be subject to payment transaction fees.
- As used herein, the term “Confidential Information” means any and all other information received by a party in connection with this Agreement, including without limitation all data, reports, information relating to a party’s technical, marketing, product and business affairs, both current and future, including without limitation, products and services and the pricing for the same and any royalty, fee or revenue sharing arrangements, customers, prospective customers, Recipe Central Property, suppliers or employees, business methods, procedures and techniques, technology, marketing information or plans, and other proprietary and trade secret information, whether oral, graphic, written, electronic or in machine-readable form.
- Publisher covenants and agrees that it shall hold (and shall cause its employees, agents, subcontractors and affiliates to hold pursuant to written agreements at least as restrictive as this Agreement or pursuant to fiduciary or other duties) confidential all Confidential Information of Recipe Central and shall not use or disclose such Confidential Information, except as expressly permitted in this Agreement, without the prior written consent of Recipe Central. Any duplication, use, disclosure, or other act or omission by any person or entity that obtains access to or possession of Confidential Information through Publisher that would be a breach of this Agreement if committed (or, as applicable, omitted) by Publisher shall be a breach of this Agreement by Publisher. Upon expiration or termination of this Agreement, all Confidential Information will be promptly returned to Recipe Central or, upon the consent of Recipe Central, destroyed and certified as destroyed by Publisher within ten (10) business days thereof.
8. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
PUBLISHER ACKNOLWEDGES AND AGREES THAT THE RECIPE CENTRAL SERVICE, INCLUDING THE RECIPE CONTENT, RECIPE WIDGET, MICROSITE, AND RECIPE CENTRAL CODE PROVIDED THEREWITH, ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. RECIPE CENTRAL, ITS AFFILIATES AND LICENSORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND RECIPE CENTRAL, ITS AFFILIATES AND LICENSORS HEREBY DISCLAIM THE SAME. RECIPE CENTRAL, ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT: (A) THE RECEIPE CENTRAL SERVICE OR ANY PORTION THEREOF WILL MEET PUBLISHER’S REQUIREMENTS; (B) THE RECIPE CENTRAL SERVICE WILL BE APPROPRIATE FOR USE OUTSIDE OF THE UNITED STATES OR IN COMPLIANCE WITH ANY INTERNATIONAL LAW, RULE OR REGULATION; (C) THE RECIPE CENTRAL SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE RECIPE CENTRAL SERVICE WILL BE ACCURATE OR RELIABLE; OR (E) ANY ERRORS, INACCURACIES OR OUTDATED INFORMATION IN THE SERVICES WILL BE CORRECTED.
PUBLISHER ACKNOWLEDGES AND AGREES THAT RECIPE CENTRAL, ITS AFFILIATES AND LICENSORS SHALL NOT BE RESPONSIBLE FOR UNATHORIZED ACCESS TO OR ALTERATION OF ANY USER DATA OR ANY THIRD-PARTY SITES, CONTENT OR MATERIALS. IN ADDITION, RECIPE CENTRAL MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WITH RESPECT TO THE QUANTITY OF RECIPE CONTENT PROVIDED TO PUBLISHER, THE PROPORTION OF EACH TYPE OF RECIPE CONTENT PROVIDED, OR THE AMOUNT OF REVENUE PUBLISHER MAY RECEIVE HEREUNDER.
Publisher, at its own expense, will indemnify and hold harmless, and at Recipe Central’s option, defend, Recipe Central, its affiliates and each of their respective officers, directors, employees, representatives and agents (each a “Recipe Central Indemnitee”) from and against any and all claims, demands, actions, class actions, investigations or other proceedings, including but not limited to all damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising therefrom, arising out of or in connection with: (i) a breach, or potential breach, of any of Publisher’s obligations under this Agreement; (ii) the Publisher Sites, Publisher Marks and/or Publisher Content, including without limitation any claims related to violation of applicable law or regulation (including privacy, export control and obscenity laws) or misappropriate or infringe the rights of any person or entity, including any Intellectual Property Right or right of publicity or privacy, or otherwise contain any Restricted Content; or (c) any alleged or actual fraud, gross negligence or willful misconduct of Publisher or its employees, Users or agents.
10. LIMITATION OF LIABILITY
BY ENTERING INTO THIS AGREEMENT AND USING THE RECIPE CENTRAL SERVICE, PUBLISHER EXPRESSLY AGREES THAT RECIPE CENTRAL, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AND licensors, AND OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS, DEMANDS OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE, AS A RESULT OF PUBLISHER’S OR USERS’ USE OF THE RECIPE CENTRAL SERVICE AND ANY PORTION THEREOF OR ANY INFORMATION OR CONTENT OBTAINed BY PUBLISHER ON OR THROUGH THEM OR ANY OTHER INTERACTION WITH recipe central. PUBLISHER HEREBY ACKNOWLEDGES AND AGREES THAT PUBLISHER IS WAIVING VOLUNTARILY AND UNEQUIVOCALLY ANY LIABILITY OF recipe central and its affiliates and licensors. If any exclusion, disclaimer or other provision contained in this agreement is held to be invalid for any reason by a court of competent jurisdiction and recipe central becomes liable for loss or damage that could otherwise be limited, such liability whether in contract, tort or otherwise, will not exceed (i) the CPMV fees paid to you in the six (6) months prior to the event giving rise to the first cause of action hereunder; or (ii) OR $100.00, WHICHEVER IS LESS. Please note that some jurisdictions may not allow the exclusion or limitation of certain warranties, so some of the above exclusions may not apply to you.
- Termination. Either Party may terminate this Agreement for convenience at any time upon written notice to the other Party. In addition, Publisher may, at any time, cease Publisher’s use of the Services by: (a) removing the Recipe Central Code from the Publisher Site(s); and/or (b) sending an email to the support email address provided by Recipe Central, requesting that Recipe Central remove the Microsite hosted on the Recipe Central Site and Recipe Central shall promptly comply with such request.
- Effect of Expiration or Termination. Upon the expiration or termination of this Agreement for any reason:
Neither Party will be liable for exercising any termination right in accordance with this Agreement. Except as expressly provided, expiration or termination of this Agreement shall not release either Party from any liability or obligation that had already accrued as of the effective date of expiration or termination, and the expiration or termination shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages, injunctive relief, or otherwise, which a Party may have hereunder at law, in equity or otherwise or which may arise out of or in connection with such termination.
- all licenses granted hereunder will immediately terminate, and Recipe Central will cease making the Recipe Central Service, including without limitation the Microsite, Recipe Widgets, Recipe Content and Publisher’s Account available to Publisher;
- Publisher shall immediately remove from the Publisher Site(s) and cease all use, distribution and display of the Recipe Central Code, Microsite, Recipe Widgets, Recipe Content and Recipe Central Marks (and any derivative works of any of them) and any other content, technology, intellectual property or materials related to the Recipe Central Service;
- Recipe Central will cease all use of the Publisher Marks;
- Publisher will promptly either return to the other Party or destroy all copies of the Confidential Information of Recipe Central; and
- all amounts that are accrued and payable as of the date of such expiration or termination shall be promptly paid (provided that Recipe Central will have no obligation to make payments for any account with a balance of less than $5) and Recipe Central will promptly terminate Publisher’s online account after payment of such amounts.
- Inactive Accounts. Recipe Central shall deem Publisher’s Account inactive in that event that, for a period of six (6) months or more ("Inactivity Period"): (i) such Account has not accepted payments from Recipe Central; (b) such Account has not been logged into; or (c) Publisher has failed to provide adequate payment instructions or other information requested by Recipe Central in connection with its current policies. At the end of the Inactivity Period, Recipe Central will have the right to close Publisher’s inactive Account without further notice to Publisher. In addition, Recipe Central will have no obligation to pay any CPMV Fees accrued during the Inactivity Period unless, at least fifteen (15) days prior to the end of the Inactivity Period, Publisher provides proper payment instructions or other information required by Recipe Central in connection with its current policies.
- Additional Remedies for Breach. In the event that Publisher violates any provision of this Agreement, in addition to the termination right set forth in Section 11.a. and any other remedies available to Recipe Central, Recipe Central may suspend Publisher’s and its User’s access to the Recipe Central Service and Publisher’s ability of the Publisher Site(s) to access the Recipe Content, Microsite, Recipe Widgets or any portion or feature of any of the foregoing.
- Compliance with Laws. Publisher shall comply with all applicable laws, rules and regulations in the performance of this Agreement.
- Changes to Recipe Central Service. Recipe Central and/or its suppliers and licensors may, from time to time, modify the Recipe Central Service, including without limitation any Recipe Content contained thereon by making improvements or other changes to the Recipe Central Service, at any time, with or without notice.
- Marketing and Publicity. Recipe Central will have the right to include Publisher’s name, the Publisher Site(s) and associated logo(s) (if applicable) in customer lists provided publicly in presentations, marketing materials, press releases and other parts of the Recipe Central Site.
- No Modifications Binding on Recipe Central. No amendment to or modification of this Agreement will be binding on Recipe Central unless in writing and signed by a duly authorized representative of Recipe Central.
- Assignment. Neither this Agreement nor any right or obligation hereunder is assignable in whole or in part, whether by operation of law or otherwise, by Publisher without the express written consent of Recipe Central. Absent such consent, any attempted or purported assignment shall be null, void and of no effect.
- Equitable Remedies. Publisher acknowledges that a breach of its obligations under this Agreement could cause irreparable harm to Recipe Central and that monetary damages may be difficult to ascertain. Therefore, without prejudice to the rights and remedies otherwise available to it, Recipe Central shall be entitled to equitable relief by way of injunction or specific performance without the posting of bond or showing of damages.
- Governing Law; Venue. This Agreement shall be governed by and construed under the laws of the state of Tennessee without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Tennessee law, rules, and regulations, Tennessee law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Davidson County, Tennessee
- Notices. Any notice required or permitted to be given by Recipe Central under this Agreement shall be in writing and shall be delivered to the email address of Publisher provided in Publisher’s Account or by means of a service notice within Publisher’s Account. Notices from Recipe Central shall be considered to have been given at the time they are sent. Any notice required or permitted to be given by Publisher under this Agreement shall be in writing and shall be personally delivered, sent by a reputable overnight courier service (e.g., Federal Express), or sent by first class mail (certified or registered) to the following address: Recipe Central, Inc., Attn: Legal Notices,341 Cool Springs Blvd, Suite 400, Franklin, TN 37067 . Notices from Publisher shall be considered to have been given at the time of actual delivery in person, one (1) business day after deposit with an overnight courier service, or five (5) business days after deposit in the mail.
- Miscellaneous. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity, including any Publisher Site, shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement. Each party hereto shall remain an independent contractor and nothing herein shall be deemed to constitute the parties as partners, agents or joint ventures. Further, neither party shall have the authority to act, or attempt to act, or represent itself, directly or by implication, as an agent of the other or in any manner assume or create, or attempt to assume or create, any obligation on behalf of or in the name of the other, nor shall either be deemed the agent or employee of the other. Except as otherwise expressly provided in this Agreement, neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of any acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, denial of service attacks, incompatibility of Publisher’s equipment or software with the Recipe Central Service, acts or omissions of vendors or suppliers, transportation and telecommunications difficulties. No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement. If any part of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that part will be enforced to the maximum extent permitted by law, and the remainder of this Agreement will remain fully in force. This Agreement constitutes the entire understanding of the parties on the subject matter hereof, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents between the parties which may be in conflict therewith.