These Terms of Service form part of a contract between Banker Advisor, LLC (the “Company”) and the individual, corporation, partnership, limited liability company or other business (the “Customer”) who registers to use the Company’s website at www.bankeradvisor.com (the “Company Site”) by completing or submitting an online profile that describes the Customer.
Every Customer who submits an online profile and who clicks on the “submit” button to signify agreement with these Terms of Services is a “Customer” for purposes of this Agreement.
The Company Site contains information regarding various companies and firms that hold themselves out as providing investment banking, M&A advisory or related professional services and each such company or firm is a “Firm” for purposes of this Agreement. If a Customer submits an online request to claim responsibility for a Firm’s profile on the Company Site, such Customer is a “Firm Representative.” If a Customer submits a review or makes a post on the Company with respect to any Firm for which the Customer is not a Firm Representative, the Customer is a “Reviewer” for such purposes.
If a Firm Representative submits an online order (as applicable, an “Order”) for any of the Company’s promotional services or other services, both the Firm Representative and the Firm will be responsible for such Order. Such Order, together with these Terms of Services, will constitute a contract that is binding on the Firm, the Firm Representative and the Company.
Each Order submitted by a Firm Representative creates a contract binding on the Firm, the Firm Representative and Company, consisting of the Order, the Service Description applicable to the Services being purchased and these Terms of Service.
Company will provide, and the Firm will purchase and pay for, the Services specified in the Order for the fees specified therein (the “Service Fees”). Firm Representative will be jointly and severally liable with the Firm for any such Service Fees and for the Firm’s due performance of its obligations as provided in the Order and these Terms of Service.
Firm will pay to Company the Service Fees in the manner set forth in the Order. Company may increase the Service Fees at any time by providing ten (10) days prior written notice thereof to Customer. All fees are fully earned when due and non-refundable when paid. Any amounts payable to Company not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Firm or the Firm Representative and Company are parties, Firm and Firm Representative will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees. If any check is returned for insufficient funds Company may impose a processing charge of $35.
Certain Services may involve promoting the Firm with improved search results or through online advertising on the Company Site (collectively, “Firm Ads”). The Company will review Firm Ads before publication and the Company may reject any Firm Ad that does not meet the Company’s editorial requirements. Firm Ads may appear on any page or location of the Company Site unless the Order specifies particular placement requirements.
A Firm Representative may terminate an Order for Services at any time but any accrued and unpaid Service Fees will be due and payable.
Services priced on a pay-per-click or pay-per-lead basis will be calculated, reported and invoiced in accordance with the Company’s automated systems for such calculations. Any questions or disputes with Company calculations must be provided to Company in writing within thirty (30) days after the date of the applicable invoice. The Company will consider and resolve any such disputes in its reasonable judgment.
4.7.1. Company represents and warrants that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof and (ii) at least at the same level of service as provided by Company generally to its other Customers for the same services. Customer will be deemed to have accepted such Services unless Customer notifies Company within 30 days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly Service Fees pro rated by the number of hours in which the Services have been interrupted.
4.7.2. The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of Company’s reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer’s equipment or any third-party equipment not within the sole control of Company.
4.7.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Customer hereby represents and warrants to Company, and agrees that Customer will ensure that: (a) Customer is the owner or valid licensee of all of the information, documents, graphic items and other data (of every kind and description) that Customer may process through the Services or upload to the Company Website (as applicable, the “Customer Content”), and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof (as applicable, a “Person”); (b) Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations regarding the Customer Content; (d) Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; and (e) Customer will use the Services only for the Customer’s own purposes and not for resale or distribution.
Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license to do the following to the extent necessary in the performance of Services under an applicable Order or with respect to any Customer Content that is posted by Customer on the Company Site: (a) digitize, convert, install, upload, select, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and (b) make archival or back-up copies of the Customer Content. Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.
5.3.1. Utilize the Company Site and the Services only in accordance with this Agreement and any applicable law.
5.3.2. Take care to protect any Customer passwords and take full responsibility for Customer's own, and third party, use of any Customer accounts.
5.3.3. Not copy any content from the Company Site or attempt to download or “scrape” the names of any persons or companies from the Company Site.
5.3.4. Not use the Company Site or any Services to facilitate the transmission of bulk commercial email or spam or for any purpose that is illegal or tortious.
5.3.5. Not publish or post any comment or Customer Content on the Company Site that is racist, derogatory of any national or ethnic group or any sexual orientation, false, defamatory or made with wrongful intent, dishonest, abusive, discriminatory or any content that the Company, in its sole discretion, determines may put the Company in a negative light or may harm the Company’s goodwill or public reputation.
5.3.6. Accurately identify the Customer by name and not attempt to use any name or identifying information that is false or an alias.
5.3.7. Not develop, support or use software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins and add-ons, or any other technology or manual work) to scrape the Company Site or otherwise copy any content found on the Company Site.
5.4.1. Company will keep confidential Customer’s name, address, telephone number, email address, credit card information, password and other non-public information provided by Customer to Company for the purpose of obtaining or maintaining the Customer’s account or paying amounts owed to Company (collectively, the “Customer Confidential Information”) except that Company will not be obligated to keep confidential any Customer Content that Customer posts on the Company Site or authorizes to be published.
5.4.2. Company may use the Customer Confidential Information to administer the Customer’s account, collect fees owed by Customer and as reasonably necessary or convenient to facilitate the Services. Company may not provide the Customer Confidential Information to any third party, except for attorneys, accountants, employees and agents working on behalf of Company pursuant to this Agreement.
5.4.3. Company may collect information regarding the Customer from sources other than the Customer Confidential Information (including data concerning Customer’s usage of the Services and the Company Site) (“Customer Non-Confidential Information”). Company may use the Customer Non-Confidential Information for any purpose and may share Customer Non-Confidential Information with any party so long as the Customer Non-Confidential Information cannot be correlated with, or linked to, Customer Confidential Information. The Company Site may use software cookies or web beacons to track Customer usage of the Company Site or the Services. Information collected by Company through such means is Customer Non-Confidential Information.
5.4.4. Notwithstanding Section 2.4.1, the following shall not be considered Customer Confidential Information: (i) any information that Company can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by Customer; (ii) any information that was in the public domain prior to disclosure by Customer to Company as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the Customer to Company, comes into the public domain through no fault of Company, or (iv) any information that is disclosed to Company without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure.
Each Customer who claims a Firm listing as a Firm Representative represents and warrants that (a) all of the information provided by Firm Representative for publication on Company Site regarding Firm is correct and current, (b) Firm Representative is legally authorized to act on behalf of the applicable Firm for purposes of this Agreement and any Services, and (c) any information posted by Firm Representative with respect to the Firm: (i) complies with all applicable laws, (ii) does not violate any duty the Firm has towards any person or entity including, without limitation, rights of intellectual property, publicity or privacy or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) complies with all of the applicable requirements of these Terms of Service.
Each Firm that is represented by a Firm Representative agrees, represents and warrants to Company that the representations and warranties made by the Firm Representative in Section 3.1 are true and correct and that the Firm hereby guarantees, and agrees to be jointly and severally liable with the Firm Representative, with respect to all acts or omissions taken (or omitted to be taken) by Firm Representative on the Firm’s behalf in connection with the Company Website, the Services or these Terms and Conditions.
Each Customer and Firm agrees that may use Customer's and Firm’s name and logo in presentations, marketing materials, customer lists, financial reports and Web site listings of customers.
7.2.1. IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER DURING THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
7.2.2. COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
7.2.3. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 10 AND 11) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
7.2.4. The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 9(c) shall not apply to liability arising on account of Customer’s indemnification obligations under Section 10.
Customer shall defend, indemnify and hold harmless Company, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “Company Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the Company Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content or any end user’s use of the Customer Content, (iii) violation by Customer or any of its officers, directors, employees or agents of any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Customer’s domain names, the Customer Content, or the use of the Services in combination with hardware, software or content not provided by Company, (v) claims or actions by third parties relating to or arising out of Customer’s use of the Services, and (vi) any damage to Company’s servers or other hardware caused by Customer.
Company and each Customer and Firm are independent contractors and nothing contained in this Agreement places Company and Customer or Firm in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Georgia, except that all arbitration and related proceedings conducted pursuant to Section 5.3 below, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 13(C) BELOW MUST BE BROUGHT IN A GEORGIA STATE OR FEDERAL COURT LOCATED IN FULTON COUNTY, GEORGIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Notwithstanding Section 5.2 above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by Resolutions Resources Corp. of Atlanta, Georgia (or such other recognized provider of arbitration services agreed upon by both parties) before a single arbitrator, appointed in accordance with such rules. Any such dispute shall address only the claims brought by the applicable party and no party may represent a class of similarly situated persons. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Atlanta, Georgia. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
The headings herein are for convenience only and are not part of this Agreement.
This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any Order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company Site.
All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in Company’s billing records.
No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.
If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise.
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
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.
Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
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