This Advertiser Agreement (“Agreement”) governs the access and use of Services made available by Lookna Inc. a Georgia state company, having its offices at 26664 Seagull Way Malibu, California 90265 (“Lookna”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THE SERVICES, ADVERTISER AGREES THAT ADVERTISER HAS READ AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF ADVERTISER DOES NOT AGREE TO THIS AGREEMENT OR DOES NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, LOOKNA IS NOT WILLING TO PROVIDE ADVERTISER WITH ACCESS TO OR USE THE SERVICES AND ADVERTISER MUST NOT ACCESS OR USE THE SERVICES. IF ADVERTISER ACCESSES OR USES THE SERVICES, ADVERTISER ACKNOWLEDGE THAT ADVERTISER MEETS THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
DEFINITIONS AND INTERPRETATIONS.
Application – means Lookna’s website www.lookna.com, Lookna’s web application and Lookna’s mobile application.
Services – means the Services provided by Lookna including but not limited to listing and advertising.
Confidential Information - means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought to reasonably be considered confidential based on its content, nature or the manner of its disclosure. Confidential Information includes, without limitation, all software, documentation, financial information, performance information, pricing information, business plans, methods, processes, inventions, techniques, designs or other technical information relating thereto. Confidential Information shall not include information that: (i) is or becomes generally known to the public through no fault of or breach of the Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party's Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
Intellectual Property Rights- means all intellectual property rights, including all copyright, patents, trademarks, design rights, moral rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Customer - means the end user of the services or goods advertised by Advertiser on the website.
In order to be listed as an Advertiser on the Application, Advertiser is required to create an online Advertiser Account and provide Lookna with the required details.
The registration will be deemed complete only after Advertiser provides complete information and the successful verification of such information, including but not limited to the documentation provided by Advertiser at the time of registration.
Lookna shall take all reasonable steps to complete verification of the details provided by Advertiser within 2 working days.
Advertiser shall not be able to list itself as an Advertiser on Application till the registration process is complete.
FEES AND PAYMENT
For the listing services provided by Lookna on the Application, Lookna charges a subscription fee to the Advertiser. Lookna provides multiple options of listing to Advertisers to choose from. Such detailed related to the subscription fees can be found on the Rates.
To make an Advertiser’s listing live, Advertiser shall be required to pay the sum as mentioned on Rates by way of credit card/debit card/PayPal or any other medium as provided by Lookna.
Once the required fee has been paid, the subscription will automatically renew on a month to month basis unless until the subscription is canceled by Advertiser.
In the event the credit card payment fails, Lookna shall suspend the Advertiser’s account until such payment is made.
This Agreement may be terminated by Lookna, at any time, in Lookna’s sole discretion upon any breach by Advertiser of this Agreement that remains uncured ten (10) days after Lookna delivers a written notice to Advertiser of such breach. Without limiting Lookna’s right to terminate this Agreement, Lookna may also immediately and indefinitely suspend Advertiser’s access to the Services, with or without notice to Advertiser, upon any actual, threatened or suspected breach of this Agreement or of applicable law or upon any other conduct deemed inappropriate or detrimental to the Services by Lookna (including, but not limited to, illegal and malicious activity on the account). Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to Advertiser under this Agreement will terminate; (b) Advertiser will immediately cease all use of and access to the Services; (c) all Fees then owed by Advertiser will become immediately due and payable; (d) Advertiser will immediately either return to Lookna or, at Lookna’s discretion, destroy Lookna’s Confidential Information, and other information related to this Agreement in Advertiser’s possession or control; and (e) Lookna may delete any of Advertiser’s held by Lookna within 10 days after the date of termination.
OBLIGATIONS OF THE ADVERTISER.
The Advertiser shall be responsible for all warranty and after sales services as per its standard warranty and shall keep the Lookna fully indemnified in this regard.
Advertiser acknowledges and agrees that Advertiser will be solely liable for all matters between a Customer and Advertiser including but not limited to transactions entered into between such Customer and Advertiser. Lookna does not verify the identity of the User/Customer of the Service. The information provided by Lookna to Advertiser is the information received from the Customer/User.
Lookna reserves the right to discontinue the provision of Service to Advertiser or take any other action as deemed appropriate if it receives multiple complaints from Customers/Users regarding the Advertiser or Advertiser’s products and/or services. Notwithstanding anything to the contrary, Lookna may also forfeit any credit amount of the Advertiser lying with Lookna and terminate the Agreement at its sole discretion.
Advertiser understands and acknowledges that Lookna just provides a platform for prospective Customers to connect with Advertisers. Lookna does not guarantee any business to Advertiser through listings on its Application.
TITLE AND RISK.
No risk or title to the services shall pass to Lookna at any point of time for any reason whatsoever, but shall be deemed to pass directly from the Advertiser to the Customer upon delivery of the services or goods to the Customer and payment of the consideration for the services by the Customer.
Notwithstanding anything to the contrary contained herein, it is clarified and agreed that any and all liabilities arising in connection with any defect, fault or shortcoming in the services and/or goods provided by Advertiser to Customer, shall be of the Advertiser alone. This provision shall survive the termination of this Agreement.
Neither party will use the other party's Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to law or regulation or the order or requirement of a court, administrative agency, or other governmental bodies; and (ii) on a confidential basis to its legal or financial advisors or existing, future, or potential private investors in or acquirers of such party.
INTELLECTUAL PROPERTY RIGHTS
Lookna shall own all rights in any intellectual property created by Lookna under the terms of this Agreement, including material, designs, graphics created and / or developed by Lookna.
Subject to the provision of contained herein, Lookna owns and shall exclusively own all rights (including all intellectual property rights), title and interest in respect of the Application.
The Advertiser hereby grants to Lookna for a royalty-free irrevocable license to use its Intellectual Property for the purposes of providing the Services by Lookna as contemplated hereunder.
The Advertiser represents to Lookna and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content comprising of any Advertisement by Advertiser are owned by the Advertiser, or that the Advertiser has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend Lookna and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Advertiser. The Advertiser further represents to Lookna that any domain names or URL listing for any Advertiser’s website or any other URL used by Advertiser in its listing, does not infringe, dilute, or otherwise violate third-party rights or trademarks. Lookna may also provide all necessary information regarding the Advertiser to any party from whom a genuine claim has been received by Lookna and the Advertiser shall have no objection to the same. Lookna may further take any other appropriate legal action against the Advertiser, as it may deem fit, in this regard.
REPRESENTATION AND WARRANTIES OF THE ADVERTISER.
Advertiser hereby represents and warrants that:
The Advertiser has all rights (including all Intellectual Property rights), approvals and consents from any third parties required to enter into and perform this Advertising Agreement and to sell the services and/or goods as contemplated hereunder.
The Advertiser has all necessary registrations/permits as required under applicable laws for sale of services through the Application (including without limitation registration under applicable laws pertaining to sales tax and VAT of the relevant states).
The Advertiser shall be solely responsible for collection and payment of applicable taxes with respect to the sale of the services and/or goods to the relevant government authorities in a timely manner and Lookna shall not be responsible nor held liable for any non-compliance/contravention of applicable tax laws by the Advertiser. The Advertiser hereby agrees to keep Lookna harmless and indemnified in this regard. The indemnity obligations of the Advertiser contained herein and in clause 10 shall survive the termination of this Agreement.
The Advertiser has a valid, clear and marketable title to all the services and/or goods being listed, advertised and sold through the Application under the terms of the Agreement.
The Advertiser shall indemnify and hold harmless Lookna and its shareholders, officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of the Advertiser arising from or connected with the Advertiser’s carrying out of its duties under this Agreement, (ii) the Advertiser’s breach of any of its obligations, agreements, or duties under this Agreement, or (iii) Advertiser’s listing of the on the Application pursuant to this Agreement; provided, however, none of the foregoing results from or arise out of the actions of Lookna.
LIMITATION OF LIABILITY
IN NO EVENT SHALL LOOKNA BE LIABLE TO THE ADVERTISER FOR ANY INCIDENTAL, INDIRECT, REMOTE SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF GOODWILL OR BUSINESS PROFITS, REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF LOOKNA KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. LOOKNA’S TOTAL LIABILITY (INCLUDING FOR ITS INDEMNITY OBLIGATIONS), WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY LOOKNA FROM THE ADVERTISER IN THE PRECEDING ONE MONTH UNDER THIS AGREEMENT.
LOOKNA shall not be obliged and does not market the offerings of Advertiser and shall not be obliged to recommend Advertiser to the Customers/Users. Lookna’s obligations under this Agreement is limited to the obligations explicitly set out herein.
Nothing herein is intended nor shall be construed as creating any exclusive arrangement with Advertiser. This Agreement is a non-exclusive agreement, and both parties Advertiser and Lookna, remain free to enter into similar agreements with third parties.
Nothing in the Agreement will be construed to create a partnership, joint venture or agency relationship between the parties nor to give either party the power to bind the other or to incur obligations on the other's behalf. The Agreement is intended for the sole and exclusive benefit of the parties, and is not intended to benefit any third party.
All notices required or permitted under this Agreement will be in writing and delivered by: (a) confirmed facsimile transmission or email with a delivery receipt, in both cases deemed given upon delivery of confirmation; (b) certified mail, deemed given five (5) days after mailing; or (c) by courier or overnight delivery services, deemed given upon receipt. All communications will be sent to a party's then-current address, email address, or facsimile number, as provided in writing to the other party.
A party's failure to perform (except for the obligation to make any payment when due) will not be considered a breach of this Agreement to the extent such nonperformance results from, or is made impracticable by, any cause beyond its reasonable control, including, without limitation, acts of God, war, fires, explosions, natural disasters, strikes or lockouts, sabotage, critical equipment failure, governmental laws and regulations, or the inability to obtain raw materials, equipment or utilities (a "Force Majeure Event"). The party whose performance is prevented or impeded by a Force Majeure Event will (a) give prompt notice to the other party stating the details and the full particulars in connection with, and the expected duration of, the event and (b) take commercially reasonable steps to resume performance promptly. If the Force Majeure Event continues for more than 90 (ninety) days, the party whose performance is not prevented or impeded by the Force Majeure Event will have the option to terminate this Agreement with notice to the other party.
Advertiser shall not assign, subcontract, or delegate its obligations under this Agreement, in whole or in part, by operation of law or otherwise without the written consent of Lookna, and any such purported assignment shall be void.
Failure by either party at any time to enforce performance of any provision of this Agreement will not constitute a waiver of such provision and will not affect or impair the enforceability of such provision or the right of either party at any time to avail itself of any remedies it may have for breach of such provision.
If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
GOVERNING LAW AND JURISDICTION
This Agreement will be governed by the laws of the State of California, without giving effect to its principles of conflict of laws. The Parties agree that any suit, action or proceeding brought by either Party against the other Party related to this Agreement will be brought solely in the Federal Courts of the State of California or, if such court lacks jurisdiction, in the State Courts of the State of California.
Lookna reserves the right to change the terms of this Agreement at any time without any prior notice to the Advertiser. Changes to the terms of this Agreement shall come into effect upon from the time it is put up on the Application or by any other mode of communication as may be determined by Lookna. Lookna shall keep an updated version and all previous versions at Terms and Conditions page.
The headings in this Agreement are included for convenience only and shall neither affect the construction or interpretation of any provision in this Agreement nor affect any of the rights or obligations of the Parties to this Agreement.
Last Updated: June 1, 2017
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