Realty Package Terms & Conditions
ListWizards (LW) will make every reasonable effort to establish, claim, and/or enhance the listings on each of the sites noted above.
LW will charge client’s credit card on the date of each month which correlates with the date of this signed contract, the monthly amount shown in “Monthly Charge” above, and will continue to charge this credit card on a monthly basis unless Client otherwise cancels this agreement in writing, submitted via facsimile or email, to LW. Failure by Client to maintain a valid credit card and provide LW with necessary changes to the credit card’s information such that LW can charge the card on schedule will be cause for LW to cancel this agreement with Client and relinquish Client’s market position to another competing professional.
Certain sites require payment in order to be listed, or in order to feature the Client in the way described in the LW marketing and sales materials. ListWizards covers the monthly price of these listings based on the price of that site’s listing or enhancement at the time the agreement is signed between ListWizards and the Client. Should the site’s pricing increase, LW will provide the Client with two options: Client can increase their monthly payment to LW commensurate with the increase in price from site(s), or client can opt to discontinue their listing with that site, in which case the Client’s monthly payment amount to LW will be reduced by the cost of that listing prior to the increase. Similarly, sites may offer up new enhancement options from time to time. LW will offer these enhancement options when LW believes the enhancement option is a worthwhile use of Client funds, and Client may or may not opt to increase Client’s monthly payment to LW to cover the new enhancement on that site. At no time will site-based price increases be absorbed or borne by LW.
LW does not warrant or make the guarantee that each site will accept the client’s listing and an alternate suitable site may be substituted upon agreement by client and LW.
By signing this agreement, LW hereby acknowledges that Client will be one of only two, three, or four local professionals (exact quantity will be provided to you in writing, along with backup market data, by a ListWizards consultant) within the Dentists category (Dentists) and for your Market, to receive the LW services described herein. Dentists and Orthodontists are and will be considered a separate professional category by LW. LW only offers this position to up to the number of total Dentists within your market area at a given time in a given market. Market areas are solely determined by LW, and are determined based on population sizes in given areas. Population sizes are as stated by www.city-data.com’s most recent population statistics, or if not available on this website, as noted in the most recent U.S. census. Markets may consist of zip codes, entire cities, towns, villages, or similar, or multiple cities, towns, villages, or similar. LW’s minimum market size is 75,000 total people as determined by the method described herein. Markets with 75,000 – 150,000 will serve one Dentist, markets with 150,001 – 225,000 will serve two Dentists, markets with 225,001 – 300,000 will serve three dentists, and markets with more than 300,000 total people will serve four dentists.
All listings will use the name, address, phone number, web site, and other identifying information provided by the client on the Listing Information Form. LW is not responsible for errors made by client on this form. Clients may update their information two times per calendar year, with the calendar year beginning on the date Client initially enrolled with LW and began paying for the LW service. Changes to this information must be at least four months apart, or LW has the right to wait until this four month period has passed before making the next round of changes.
Once LW has established, verified, and/or enhanced the profiles on each site within the package purchased by the Client, LW will provide the login information, including username, password, and any security questions for each site, in writing via email to Client. LW will provide this no later than 60 days after initial sign-up.
In the case of Client cancellation, all efforts made by LW to establish, verify, or enhance Client’s listings will be reversed and all Client listings reset to their initial form and status with only the information which existed prior to LW’s efforts to remain in Client listings. Determination of “prior information within Client listings” will be evidenced by the screen captures showing listing status prior to LW’s efforts.
LW will provide a report showing screen captures from each web site which show the client’s previous ranking, updated ranking, previous profile, and current profile, where applicable, as not all sites will have a listing or profile at the time LW begins making improvements.
LW will report on all new activity and movement within rankings each month, including reviews posted during the prior month, and will furnish this report which only shows new activity, on a monthly basis, when applicable.
The initial LW effort will be complete within 45 days of receiving the initial payment from Client. LW cannot guarantee that any individual listing will be created or modified at a certain time but will continue to make every reasonable effort with the site to ensure the client’s information is posted correctly and in a timely manner.
Limitation of Warranties and Liability
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, LW MAKES NO REPRESENTATIONS OR WARRANTIES—EXPRESS OR IMPLIED—REGARDING THE PRODUCT OR LW’S SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED BY LW AND WAIVED BY CLIENT TO THE EXTENT NOT PROHIBITED BY LAWS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL LW’S AGGREGATE LIABILITY TO CLIENT OR TO ANY THIRD-PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS FOR SUCH LIABILITY, EXCEED THE TOTAL AMOUNT RECEIVED BY LW DURING THE PREVIOUS 12-MONTH PERIOD UNDER THIS AGREEMENT. ALL CLAIMS UNDER THIS AGREEMENT MUST BE INITIATED NOT LATER THAN ONE YEAR AFTER THE OCCURRENCE GIVING RISE THERETO.
Indemnification from LW
Except for claims arising from the negligence or intentional misconduct of Client, LW will defend, indemnify, and hold harmless Client and, as applicable, Client’s Related Parties, from and against all Losses, excluding any attorneys’ fees or other costs or expenses incurred by Client in connection with such claims other than for the specific purpose of enforcing its defense and indemnity rights in connection with LW’s failure to comply with this Section, incurred by Client or its Related Parties resulting from claims based on (i) LW’s establishment, enhancement, and/or claim to any listing or profile, (except for any Losses resulting from web site errors, outages, or failures which occur beyond the control of LW, (ii) LW’s provision of Services; or (iii) LW’s breach of its covenants, representations, or warranties listed herein.
Indemnification from Client
Except for claims arising from the negligence or intentional misconduct of LW, Client will defend, indemnify, and hold harmless (as the context would reasonably require) LW and, as applicable, LW’s Related Parties, from and against all Losses incurred by LW or its Related Parties resulting from (i) mis-posting or placement of listings by Client or its Related Parties; (ii) Client’s operation of its practice or involvement in securing customer reviews or enhancements to its listing; or (iii) Client’s breach of its covenants, representations or warranties herein.
All parties will, in good faith, remedy any discrepancies that arise from profile establishment, enhancement, or claiming immediately upon learning of such discrepancy.
Assignment by LW
LW may assign this Agreement to (i) any parent, affiliate (an entity in which LW has a direct or indirect relationship, successor (by operation of Laws or otherwise), or subsidiary that LW may have or (ii) any entity that purchases LW’s assets used to provide Services to the Client. Upon the new operator’s written assumption of all of LW’s obligations and duties under this Agreement, LW will be relieved of any further liability or obligations to Client attributable to periods from and after the effective date of such assumption.
Assignment by Client
If Client sells its business or otherwise is no longer operating its business with a 51% ownership, Client promptly will provide LW with the name, address, telephone, facsimile, and contact name of the new owner, and Client shall make the assumption of this Agreement a condition to such sale or transfer. Upon the new Client’s written assumption of all of Client’s obligations and duties under this Agreement, Client will be relieved of any further liability or obligations to LW attributable to periods from and after the effective date of such assumption. The new owner may cancel this agreement based on the terms provided herein.
Despite anything to the contrary in this Agreement, neither party will be liable or in breach of or default under this Agreement for any delay or failure of performance resulting directly from anything beyond the reasonable control of the non-performing party, excluding payment of monies due (a “Force Majeure Event”). So long as the non-performing party diligently and continuously attempts to cure the non-performance caused by the Force Majeure Event (giving consideration to the effect of the Force Majeure Event on such party’s overall business operations), the Term and the time for performance shall be extended to account for the delay caused by the Force Majeure Event.
Compliance with Laws; Choice of Law
This Agreement shall be subject to, and in the performance of their respective obligations under this Agreement the parties shall comply with, all Laws and such compliance shall be deemed not to constitute a breach of this Agreement. This Agreement is governed by and shall be interpreted under the Laws of the state of Texas. The parties hereby submit to the in personam jurisdiction of the State of Texas, and waive any objection to improper venue in the applicable federal and state courts. Venue for litigation shall be in Collin County, Texas.
All notices, requests, approvals, demands, consents, and other communications that are required to be or may be given under this Agreement shall be (i) in writing; (ii) when being sent to LW, delivered by facsimile (where the facsimile number provided by LW under this Agreement is current) and by a nationally-recognized, traceable delivery service (e.g., overnight courier, U.S. mail with return receipt, etc.) to LW’s address stated at the head of this Agreement; (iii) when being sent to Client, delivered to the address provided by Client to LW for billing invoices (where applicable) or to Client’s address stated at the head of this Agreement (but not to the Property address unless that also is the billing address); and (iv) deemed properly given upon receipt by the addressed recipient. If questioned, the sender of the notice shall have the burden of producing written documentation proving delivery and receipt. Either party may change its notice information by providing notice to the other in accordance with this Section.
If any portion of this Agreement is rendered invalid or otherwise unenforceable under Laws or by a governmental, legal, or regulatory authority with jurisdiction over the parties, then the remainder of this Agreement will continue in full force unless such continuance will deprive one of the parties of a material benefit hereunder. In such event, and subject to the terms agreed upon herein, which may contain agreed upon alternative provision(s) that automatically shall become effective upon certain changes in Laws, the party that has been deprived of such material benefit may notify the other, and the parties promptly thereafter shall use commercially reasonable efforts to replace or modify the invalid or unenforceable provision with a provision that, to the extent not prohibited by Laws, achieves the purposes intended under the invalid or unenforceable provision.
Scope of Agreement; Modifications
This Agreement constitutes the entire agreement between Client and LW with respect to, and supersedes all other agreements relating to, the subject matter contained herein. This Agreement can be modified or changed only by a written instrument signed by both parties. A party’s waiver of enforcement of any of the terms or conditions of this Agreement will be effective only if in writing.
If either party sues or brings any other type of enforcement action in connection with this Agreement, then the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs in connection with such enforcement. “Prevailing party” means the party whose granted relief is closest to its requested relief.
The effort and product made and created by LW in the course of performing the services described herein for Client will be promptly removed at such a time the client cancels the contract and no longer is purchasing services costing at least $99 per month from LW. At such a time, LW may remove the any and all listing information originally established by LW for client and immediately assign Client’s now-previous ownership of one of the three market area positions to a new client in that client’s market area.
Representations and Warranties
Client represents, warrants and covenants to LW that (i) Client is sole and rightful owner of Client’s business and its associated information; (ii) no purchase contracts exist with respect to the Client’s business; (iii) the information being provided by the client is accurate in full to the best of Client’s knowledge; (iv) the Client’s business is not part of a bankruptcy proceeding, or similar proceeding; (v) Client has the full power and authority to negotiate, execute, deliver, and perform this Agreement; (vi) the party signing this Agreement is duly authorized to execute and deliver such documents on behalf of Client; (vii) Client owns and/or has the right to grant to LW the right to use all Client information; (viii) there are no agreements, understandings or intentions with or between Client and any other party that conflict with this Agreement.
LW’s Representations and Warranties
LW represents, warrants and covenants to Client that (i) LW has the full power and authority to negotiate, execute, deliver and perform this Agreement; (ii) the party signing this Agreement is duly authorized to execute and deliver the Agreement on behalf of LW; (iii) LW will maintain during the Term all necessary personnel with the knowledge to operate and perform these services; and (iv) there are no agreements, understandings, or intentions with or between LW and any other party that conflict with this Agreement.