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General Terms of Service

1. Services. Deseret Digital Media, Inc., and its agents, employees, directors, officers, parent, and affiliates (collectively “DDM”), operator of the products, platforms and applications offered at KSL.com, KSL Classifieds, KSL Jobs, KSL Homes, KSL Cars, KSL Marketplace and Utah.com (collectively “KSL Marketplace Products”) will provide the services as set forth in the Order Form (the “Services”). The Services will be provided to the customer named in the Order Form (“Customer”).

2. Use of Services. DDM will provide Customer with access to the Services, provided Customer is solely responsible for any unauthorized modifications made to the Services. Customer agrees that DDM is not responsible for any defects or problems caused by unauthorized modifications to the Services.

3. Advertising Content.

a. Customer shall be solely responsible for providing DDM with all advertising content including any and all files, pages, data, including, without limitation, trade or service marks, logos, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text provided by Customer to DDM to be utilized with display advertising campaigns (“Display Advertising Content”).

b. Customer shall be solely responsible for providing DDM with all advertising content including any and all files, pages, data, including, without limitation, trade or service marks, logos, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text provided by Customer to DDM to be utilized on listing advertisements located on KSL Marketplace Products ‰“Listing Advertising Content”).

c. Display Advertising Content and Listing Advertising Content are collectively referred to as “Advertising Content” and/or “Advertisements”.

d. All Advertising Content must comply with the Advertising Guidelines set forth in section 4 below. DDM reserves the right, in its sole discretion, to accept or reject any Advertising Content.

4. Advertising Guidelines.

a. Advertisements may not be unfair, misleading, deceptive or violate applicable federal or state laws, rules or regulations.

b. DDM only allows third-party advertising entities (exchanges, networks, SSPs, DSPs, etc.) that (i) test and monitor ad tags, (ii) perform background and credit checks on all advertisers, (iii) preview Advertising Content, and (iv) do not allow “blind” self-serve submissions or ad exchanges.

c. DDM reserves the right, in its sole discretion, to include a “Report this Ad” link below each Display Advertising Content.

d. DDM does not allow entrapment ads (i.e., ads that attempt to deceive users via temporary low prices or free trials with hidden or recurring prices that are difficult to cancel or that are otherwise predatory in nature) or advertisers. All such ads and advertisers will immediately be removed from KSL Marketplace Products. An exchange/network that provides such ads more than once will be removed.

e. DDM will not work with Customers, and will refuse all Advertising Content, that promote or feature escort services, pornography, sexual activity, alcohol, tobacco, e-cigarettes, firearms or gambling. DDM does not allow Advertising Content that is vulgar, sexually suggestive or explicit, offensive, abusive, defamatory, or otherwise in poor taste, as determined solely by DDM.

f. DDM does not allow invasive ads, including without limitation, popup or pop-under ads that interrupt the viewer’s experience without permission, auto-start audio that plays without viewer action or permission, auto-start video that does not include an auto-start icon, and advertisement animation that lasts longer than 15 seconds or three complete ad cycles.

g. Native advertising must include substantive content (an article, video, etc.); simply including a headline linked to the brand’s landing pages or offsite content is not permitted.

h. DDM reserves the right to amend or supplement the Advertising Guidelines set forth herein upon thirty (30) days’ notice to Customer.

5. Proprietary Rights and Ownership.

a. Customer hereby grants DDM a limited, non-exclusive, non-transferable license to use the Display Advertising Content, including any trademarks therein, exclusively for the purpose of providing the Services. Except as explicitly provided in this section, and for any Display Advertising Content created by DDM, nothing in the Services Agreement (this “Agreement”) shall be deemed to confer to DDM any right, title or interest in or to the Display Advertising Content. Except for the rights granted in this Agreement, (i) Customer retains all rights in the Display Advertising Content; and (ii) each party retains all rights it would have independent of this Agreement, including rights under the U.S. Copyright Act or analogous laws in other jurisdictions.

b. Customer hereby grants DDM and its designees a worldwide, perpetual, royalty-free, non-exclusive, transferable, sub-licensable license to use, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, and prepare derivative works of the Listing Advertising Content in connection with the Services or the conduct of DDM’s business in any formats and through any media channels. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NOTHING IN THIS SECTION WILL ELIMINATE ANY RIGHTS GRANTED DDM IN SECTIONS “USER SUBMITTED CONTENT” AND “INTELLECTUAL PROPERTY” CONTAINED IN THE KSL TERMS OF USE.

c. Where DDM provides creative services to Customer, including the creation of advertising content (“Creative Project”), DDM hereby agrees that each Creative Project will be original, solely created by DDM and deemed a “work made for hire” ordered by Customer. All content, intellectual property rights, or other rights associated with any Creative Project will be vested exclusively with Customer, with the right to make use of the Creative Project anywhere in the world and to make changes and edits, in any manner, to the Creative Project

d. DDM owns and holds all right, title, interest, intellectual property rights and copyrights in and to the KSL Marketplace Products, including, without limitation, the source code, scripts, layout, documents, graphics and text. This Agreement does not transfer or assign to Customer any ownership interest or license in the KSL Marketplace Products. At no time will Customer assert or claim any ownership interest in KSL Marketplace Products, or in any other intellectual property of DDM. Customer will not make, use, sell, offer to sell, import, copy, reproduce, modify, adapt, create derivative works of, distribute or publicly perform or display any part of the KSL Marketplace Products except as provided in this Agreement. Customer will not reverse engineer, decompile, disassemble or otherwise derive or determine, or attempt to derive or determine, the source code (or the underlying ideas, algorithms, structure or organization) of the KSL Marketplace Products or the Services.

e. All data, records, and reports relating to use by consumers of the KSL Marketplace Products (collectively, “Records”) shall be owned exclusively by DDM. Nothing in this Agreement, including the furnishing of such Records to Customer, shall grant any express or implied interest in or license to Customer relating to such Records other than as is necessary to perform and provide the Services.

6. Pricing and Payment.

a. DDM shall charge Customer, and Customer shall pay to DDM, an amount equal to the price set forth for the Services in the Agreement.

b. If payments due are not received within thirty (30) calendar days of the applicable due date, the payment is considered late. If Customer is late in making payment, DDM is entitled to charge interest at the maximum rate allowed by law or 1.5% per month, whichever is lesser, until the entire amount due is received.

c. Without waiving any other remedies available, should Customer fail to satisfy the terms of this Section, DDM may discontinue the Services.

d. Customer may not offset an invoice against other claims unless such claims are undisputed or reduced to judgment. Should DDM need to engage the services of an attorney or debt collection agency to assist in the collection of amounts due, then Customer agrees to reimburse DDM or its agent or assign (as applicable) for all fees and costs incurred in such collection, whether at law or in equity, bankruptcy receivership, other court proceedings, arbitration, mediation, or any settlement of any of the forgoing.

e. Prices of the Services, including but not limited to monthly fees, are subject to change upon thirty (30) days notice.

f. Without waiving any other remedies available, should Customer fail to satisfy the terms of this Section, DDM may discontinue Services with the Customer, discontinue hosting of the Customer’s Display Advertising Content (if applicable), remove the Customer’s Listing Advertising Content from all local search engines, and/or take any other reasonable means necessary in order to collect the past due amount.

g. In the event that all or part of the fees due under this agreement is collected by DDM, or its agent or assign, at law or in equity, or in bankruptcy, receivership or other court proceedings, arbitration or mediation, or any settlement of any of the foregoing, the Customer agrees to pay, in addition to all amounts due and payable hereunder, all costs of collection incurred by DDM, its agent or assign, in collecting or enforcing this Agreement, including without limitation, reasonable attorneys’ fees and expenses actually incurred.

7. Term and Termination.

a. The Term of the Agreement shall be the term set forth on the Order Form (the “Term”).

b. Unless otherwise set forth in the Order Form, the Term shall automatically renew in monthly increments unless terminated in accordance with the provisions herein.

c. Unless otherwise set forth in the Order Form, Customer may terminate this Agreement for any reason or no reason upon thirty (30) days’ notice to DDM. If Customer terminates the Agreement pursuant to this section, DDM is entitled to be compensated for all Services provided through the date of termination.

d. Customer may terminate this Agreement if Customer is unsatisfied with DDM’s performance of the Services, provided (i) Customer details in writing the point(s) of dissatisfaction and the level of performance expected (the “Breach”); and (ii) fifteen (15) days have passed without DDM remedying the Breach (“Course Correction Period”). Customer will not continue to be billed for the Services in question during the Course Correction Period. Once acceptable levels are again achieved, normal billing will resume.

e. DDM may terminate this Agreement immediately, for any reason or no reason, upon notice to Customer.

8. Non-Exclusivity. The relationship of the parties is non-exclusive.

9. Representations and Warranties.

a. Mutual. Each party to this Agreement hereby represents and warrants that (i) it has the full power and authority to enter into and fully perform this Agreement in accordance with its terms; and (ii) the execution, delivery and performance of this Agreement does not and will not violate any applicable law, judgment, order, ordinance, injunction, decree, rule, regulation or ruling of any court or governmental authority or the rights of any third party.

b. Customer. Customer represents and warrants that: (i) Advertising Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation; (ii) Advertising Content does not infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; (iii) Customer owns or otherwise controls its Advertising Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the content on and within KSL Marketplace Products; (iv) Customer has all necessary rights to sell the products and services to be listed by DDM and said products will not be misleading, involve unfair or deceptive acts, representations or statements; (v) Customer is in compliance with all applicable laws and regulations, in its jurisdiction, associated with the services performed or received hereunder; (vi) Customer is solely responsible for the Advertising Content and the products listed on the KSL Marketplace Products; (vii) Advertising Content is accurate, complete and current; and (viii) none of the Advertising Content will be defamatory, libelous or infringe on any privacy right or any other right of any third party.

c. DDM hereby represents and warrants that (i) it owns or otherwise controls the Creative Project, (ii) Customer’s use of the Creative Project as set forth in this Agreement will not infringe on any copyright, trade secret, trademark, trade dress or other intellectual property right of any third party, and (iii) none of the material included in the Creative Project will be defamatory, libelous or infringe on any privacy right or any other right of any third party.

10. Confidentiality.

a. Definition. “Confidential Information” means information disclosed by either party to the other party under this Agreement which is marked as confidential or which would normally be considered confidential under the circumstances. Confidential Information does not include information that (i) is already in the recipient’s possession, (ii) becomes public through no fault of the recipient, (iii) was independently developed by the recipient, or (iv) was rightfully given to the recipient by another party.

b. Confidentiality Obligations. The recipient will not disclose Confidential Information except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Those people and entities may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to discloser. This provision and associated obligations will continue for two (2) years after termination of this Agreement.

11. Disclaimers. DDM DOES NOT GUARANTEE THE AMOUNT, TIMING, OR PLACEMENT OF IMPRESSIONS, VIEWS OR PHONE CALLS, OR THE AMOUNT OF REVENUE, IF ANY, TO BE GENERATED BY THE SERVICES DURING THE TERM. ADDITIONALLY, THE SERVICES ARE PROVIDED ON AN “AS IS/AS AVAILABLE” BASIS. EXCEPT AS PROVIDED IN THIS AGREEMENT, DDM HEREBY EXPRESSLY DISCLAIMS ALL PROMISES, REPRESENTATIONS AND WARRANTIES OF ANY KIND RELATING TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, THEIR CONDITION, THEIR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION AND THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. DDM MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR USE, OR WARRANTIES AS TO THE QUALITY, ACCURACY, RELIABILITY, OR COMPLETENESS OF ANALYTICAL STATISTICS OR OTHER DATA PROVIDED AS PART OF THE SERVICES (COLLECTIVELY, THE “DATA”). THE DATA ARE PROVIDED “AS IS.” CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE DATA MAY CONTAIN SOME NONCONFORMITIES, DEFECTS, OR ERRORS. THE ENTIRE RISK OF USE OF, AND RELIANCE UPON, THE DATA SHALL BE WITH CUSTOMER.

12. Limitation of Liability. DDM’S MAXIMUM LIABILITY FOR DAMAGES IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WILL NOT EXCEED THE TOTAL AMOUNT OF MONTHLY FEES PAID BY CUSTOMER PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL DDM BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, BUSINESS OR GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, EVEN IF DDM HAS BEEN ADVISED OF OR KNEW OF THE POSSIBILITY OF THE DAMAGES, AND LICENSEE HEREBY RELEASES DDM FROM ALL LIABILITY FOR SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY AND DISCLAIMER OF DAMAGES APPLIES EVEN IF ANY REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

13. Indemnification.

a. DDM agrees to defend, indemnify and hold harmless Customer, its directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of a third-party claim, judgment or proceeding relating to or arising out of (i) DDM’s breach of any representation or warranty hereunder and (ii) DDM’s infringement or misappropriation of any copyright or other intellectual property right of any third party.

b. Customer agrees to defend, indemnify and hold harmless DDM its directors, officers, employees, agents and affiliates (including but not limited to Deseret Management Corporation and Bonneville International, Inc.) from any and all Losses incurred as a result of a third-party claim, judgment or proceeding relating to or arising out of (i) the acts or omissions of Customer in the performance of this Agreement; (ii) the violation of law by Customer; (iii) Customer’s breach of any representation or warranty hereunder; and (iv) Customer’s infringement or misappropriation of any copyright or other intellectual property right of any third party.

c. If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third-party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.

14. Relationship. DDM and Customer are entirely independent of each other and each party has sole responsibility and authority for the conduct of its own business. By entering into the Agreement, the parties expressly declare and agree that neither party is the agent, employee, joint venturer or partner of the other. No party has the right to bind the other in any manner.

15. For Display Advertising Content Only.

a. Where the Services provided includes Display Advertising Content, DDM will monitor delivery of the Display Advertising Content, and will notify Customer either electronically or in writing as soon as possible if DDM believes that an under-delivery is likely. In the case of a probable or actual under-delivery, DDM may arrange for a make-good consistent with these Terms.

b. Make-good Procedure. If actual deliverables, as agreed between the parties, for any campaign fall below guaranteed levels, as set forth on the Order Form, and/or if there is an omission of any Display Advertising Content (placement or creative unit), DDM will use commercially reasonable efforts to agree upon the conditions of a make-good flight, either on the Order Form or at the time of the shortfall. If no make-good can be agreed upon, DDM may execute a credit equal to the value of the under-delivered portion of the Order Form under which it was charged.

16. Miscellaneous.

a. Except as provided herein, no party is intended to be, or will be, third-party beneficiaries of this Agreement. Notwithstanding, DDM’s third-party suppliers/vendors providing data services are each intended as a third-party beneficiary and may enforce the provisions herein.

b. This Agreement and any subsequent agreements based hereon will be governed by Utah law, without giving effect to conflicts of laws principles. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SALT LAKE COUNTY, UTAH.

c. This Agreement will not be assignable without the other party's written consent.

d. Any amendments to this Agreement must be agreed upon in writing.

e. The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

f. Failure to enforce any provision will not constitute a waiver of that provision.

g. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.

h. Neither party shall be liable to the other for delays in or failure of performance due to causes beyond such party’s reasonable control, including but not limited to acts of God, acts of civil or military authority, priorities under governmental authority, fires, severe weather, floods, epidemics, war, terrorism, embargo, riots or national company strikes by or involving third parties or other causes beyond the control of the affected party, telecommunications line failures, electrical outages, or network failures.

i. If there is any discrepancy between this Agreement and any other agreement between the parties, the terms of this Agreement shall govern.

j. Sections 9 through 15 shall survive termination or expiration of this Agreement.

 
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