Outrank Plus Advertising Service Agreement
1.0 Acknowledgment and Acceptance of Agreement.
1.1
The Outrank Advertising Service (the “Service”) is provided by Yodle, Inc. (“us”, “we” or “Yodle”) to you (“you”, “your” or “Customer”) under the terms and conditions of this Advertising Service Agreement (the “Agreement”), which may be updated by Yodle from time to time.
1.2
BY PURCHASING THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER, THAT YOU WILL PROVIDE TRUE, ACCURATE, CURRENT, AND COMPLETE INFORMATION IN YOUR REGISTRATION FOR THE SERVICE, AND THAT YOU HAVE ALL REQUISITE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.
2.0 Description of the Service.
2.1
The Service is a fee-based service. We will place your information (the “Listing”) on a website owned and operated by us (the “Website”) so that it looks like the Website is owned and operated by you. We reserve the right to decide whether, where, and how a Listing appears on the Website.
2.2
The Service includes the application of “on page” and “off page” search engine optimization tactics designed to achieve a higher ranking for the Website in search engine results and optimization for Customer’s business listing in Google maps/places (“Organic”). In addition, if the Service includes sponsored advertising (i.e. paid search engine marketing), then we will, as a managed service, create advertisements about your business (“Ads”), and will distribute the Ads through our network of advertising channels (“Paid Search”), including (i) Google (the “Google Network”), (ii) all other advertising channels (the “Yodle Network”) and (iii) all other forms of media, applications, and devices (collectively with the Google Network and the Yodle Network, the “Distribution Network”). You acknowledge that search results and search engine rankings are influenced by several factors, and, except as set forth in Section 7 of this Agreement, we do not guarantee any particular placement, position or rank for the Website, any Ad or your business listing in any search results.
2.3
As part of the Service, we may provide the temporary use of telephone number(s) that are used to track the progress of your Listing throughout the Internet. We shall control these numbers and may replace or change the numbers without notice.
2.4
All Listings submitted to the Service must meet the following minimum criteria:
- The Listing must be for a business based in the United States.
- The Listing must be in the English language.
- The Listing must not contain any content, product, service, or other information that we believe, in our sole discretion, may be sexually suggestive or illegal to sell under any applicable law, statute, ordinance, or regulation, that may infringe or violate anyone’s rights, or is inflammatory, offensive, or otherwise inconsistent with the spirit of the Service.
These criteria are minimum requirements only, and we, in our sole discretion, may consider other criteria before accepting the submission. Nothing in this Agreement obligates us to accept your Listing.
3.0 Payment Terms; Taxes.
3.1
In order for us to consider your Listing, you must submit a valid credit card or checking account number, or provide other payment information acceptable to us in our sole discretion. You hereby irrevocably (during the Term) authorize us to charge your credit card, checking account or other payment method provided for (i) the current monthly fee specified when you ordered the Service on the date that you order the Service and (ii) the then-current monthly fee each subsequent month thereafter during the Term of this Agreement. We may change the fees upon notice to you.
3.2
In the event that you prepay for several months of the Service, you authorize us to charge that amount on the date that you order the Service, and we will consider the prepayment to be earned by us evenly each month we provide the Service to you.
3.3
If your credit card expires, you hereby authorize us to submit the credit card charge with a later expiration date.
3.4
Customer understands and agrees that portions of the charges made under this Agreement may be for items or services that are subject to sales or other transfer taxes for which Customer shall be liable, and Customer agrees that Yodle may make allocations of the base purchase prices under this Agreement to the taxable items or services provided to Customer and charge Customer such taxes in addition to the other base pricing provided for under this Agreement. Customer agrees to timely pay such tax charges by the same payment due dates as the charges for the items or services that are subject to tax. In the event Yodle fails to timely charge sales or other transfer taxes it may, after the fact, charge Customer applicable taxes, and Customer agrees to pay such charges within 30 days of receipt of invoices therefore.
4.0 Term and Termination.
4.1
The term of this Agreement shall begin on the date you order the Service and continue on a month to month basis thereafter at rates applicable at the time, until terminated as set forth herein (the “Term”).
4.2
Either party, in its sole and absolute discretion, may terminate this Agreement in the manner described in Section 10 regarding notice, and the Agreement will be terminated effective at the end of the then-current monthly billing cycle.
4.3
Notwithstanding the foregoing, we may, but have no duty to, immediately terminate this Agreement and remove your Listing for any reason, including if you have provided false information as part of your submission, are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services, are engaged in activities or sales that may damage our rights of the rights of others, or have otherwise breached the terms of this Agreement. Any termination under this Section 4.3 shall take effect immediately without any opportunity to cure.
4.4
FOLLOWING TERMINATION OF THIS AGREEMENT, YOUR LISTING WILL BE REMOVED FROM THE WEBSITE AND REPLACED WITH THE LISTING OF ANOTHER CUSTOMER AND ANY TELEPHONE NUMBERS ON THE WEBSITE WILL BE RE-ROUTED TO THE OTHER CUSTOMER. IN ADDITION, WE WILL SUSPEND ANY BUSINESS LISTINGS/CITATIONS THAT WE HAVE CLAIMED ON YOUR BEHALF AND YOU WILL NEED TO RECLAIM THEM. The provisions of Sections 3.4, 5, 6, 8, 9, 10, 11, 12 and this Section 4.4 shall survive any termination of this Agreement.
5.0 Communications; Call Recording and Monitoring.
5.1
By placing a Listing through the Service, you agree to receive communications essential to your use of the Service (e.g., an email about a change in Service pricing). For other, non-essential communications related to the Service, including promotional messages, you will have the choice to opt-out upon receipt of the first non-essential communication. You may exercise this choice from instructions provided within the first non-essential communication.
5.2
For quality assurance, Yodle records and/or monitors calls between Customer and Yodle agents, employees and/or its affiliates regarding the Service (the “Service Calls”). If the Services include call recording or monitoring, Yodle will record and/or monitor incoming calls and e-mails between Customer, or Customer’s agents, employees, and/or its affiliates and people who contact Customer through the tracking telephone numbers or contact forms Yodle provides (the “Inbound Calls” and, collectively with Service Calls, “Call Recording and Monitoring”). By this Agreement, Customer consents to any and all Call Recording and Monitoring performed by Yodle or its agents, employees and/or its affiliates. Customer acknowledges that it is responsible for notifying and obtaining consent to Call Recording and Monitoring from all of its agents (including employees and independent contractors) who may be recorded or monitored in a Service Call or Inbound Call (the “Recorded Persons”). It is Customer’s sole responsibility to provide and/or obtain, and Customer covenants that it will provide and/or obtain, all notices, consents, and permissions relating to Recorded Persons as may be required by applicable laws and regulations.
6.0 Indemnity.
You agree to indemnify, defend, and hold harmless Yodle and its successors, parent, subsidiaries, affiliates, officers, directors, shareholders, designees, employees, and agents (the “Yodle Entities”), from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from your Listing, your use of the Service, or breach (or alleged breach) of your representations, warranties and covenants under this Agreement. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations.
7.0 Guarantee.
If, for a keyphrase relevant to your business, both an Organic Page One Position and a Paid Search Page One Position have not been attained within 60 days of the date you have completed your welcome call with a member of our Account Management team and have accepted this Agreement on your performance dashboard, simply call us and you will receive a $200 credit for each subsequent month that you continue the Service as described in Section 2.3 that includes both Organic AND Paid Search until both an Organic Page One Position and a Paid Search Page One Position have been attained. “Organic Page One Position” means a link to your business has appeared on the front page of at least one of the following: Google organic, Google local, Yahoo organic, Yahoo local, Bing organic or Bing local. “Paid Search Page One Position” means one of your Ads has appeared on the front search engine results page of at least one of the following search engines: Google, Yahoo or Bing.
8.0 Disclaimer of Warranties and Liabilities.
THE SERVICE AND DISTRIBUTION NETWORK ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YODLE MAKES NO, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. YODLE IS NOT PERMITTED TO PROVIDE, AND DOES NOT PROVIDE, LEGAL ADVICE, AND CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE OF THE ADS AND ADVERSITE WITH ALL LOCAL, STATE AND FEDERAL LAWS AND REGULATIONS AND PROFESSIONAL RULES AND REGULATIONS APPLICABLE TO THE CUSTOMER. RECORDED CALLS MAY NOT MEET HIPAA REQUIREMENTS AND MAY NOT BE PRIVILEGED UNDER APPLICABLE LAW. THE YODLE ENTITIES WILL NOT BE LIABLE TO CUSTOMER (NOR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM CUSTOMER’S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING COST OF COVER, LOST REVENUES, GOODWILL OR PROFITS OR LOSS OF BUSINESS OR DATA, ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF WHETHER YODLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF. IN ANY EVENT, THE MAXIMUM LIABILITY OF THE YODLE ENTITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO YODLE HEREUNDER WITHIN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
9.0 Force Majeure.
No party to this Agreement shall be liable to the other for any delay or failure in performance under this Agreement resulting directly or indirectly from acts of nature or causes beyond its reasonable control.
10.0 Notices.
Any notices or communications under this Agreement shall be by electronic mail or in other form of writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to Yodle, such notices shall be addressed to customercare@Outrank.com, or to such other address as we may provide to you. If to you, such notices shall be addressed to the electronic mailing address or other mailing address provided by you. It is your obligation to keep your contact information on file with us current.
11.0 Licenses and Ownership.
Customer hereby grants Yodle and its designees a non-exclusive, irrevocable (during the Term), worldwide, transferable, sublicensable right and license, in connection with the Service, to (a) use, reproduce, mirror, distribute, modify, perform and display the Listing (or any portions thereof), (b) use Customer’s name and logo, (c) distribute the Ads to the Yodle Distribution Network and (d) list, represent, register or establish accounts or keywords. As between Yodle and Customer, Customer owns the Listing and Yodle owns any content (other than the Listing), templates, data or technology in connection with the Service. Customer may not grant access to its account or share any data generated from the Service with any third party without our prior written consent. We reserve the sole right and ownership to the Website (other than your Listing), the domain at which the Website may be found, and the telephone numbers listed on the Website.
12.0 General.
This Agreement constitutes the entire agreement between the parties with respect to the Service and supersedes all previous proposals, both oral and written, representations, writings and all other communications between the parties. The Agreement and the relationship between you and Yodle shall be governed by the laws of the state of New York without regard to its conflict of law provisions. You and Yodle agree to submit to the personal and exclusive jurisdiction of the State and Federal Courts located in New York County, New York. YODLE AND CUSTOMER EXPRESSLY WAIVE ANY RIGHT TO A JURY TRIAL. Prior to initiating any legal action, the initiating party shall give the other party 60 days prior written notice (in the manner described in Section 10 regarding notice) of its intent to file an action. During such notice period, the parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute arising under or relating to this Agreement, shall finally be settled in a court of competent jurisdiction as set forth herein. Yodle may assign this Agreement, in whole or in part, and the parties’ rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns. For the avoidance of doubt, Yodle is an independent contractor of Customer and does not have the authority to make any commitment of any kind that is binding on Customer. Customer expressly agrees that any varying or additional terms contained in any purchase order or any other written notification or document issued by Customer in relation to the Service shall be of no effect and may be accepted for administrative convenience only. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and agree that the other provisions of this Agreement remain in full force and effect. Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Any and all press releases and other public announcements related to the inclusion of your Listing in the Service, including the method and timing of such announcements, must be approved in advance by us in writing. We reserve the right to withhold approval of any public announcement in its sole discretion. If this Agreement is accepted electronically, this creates an electronic signature that has the same legal force and effect as a handwritten signature on a written contract under any applicable law or regulation, and is equally binding. This Agreement is not exclusive to either party, which means that Yodle can provide the Service to any other customer and Customer can procure similar services from any other service provider.
