Yodle Service Agreement Terms and Conditions

The following terms and conditions, the Order Confirmation, and any Change Order are collectively referred to as the “Agreement.”  Customer desires to use, and Yodle, Inc. (“Yodle”) desires to provide to Customer, subject to the terms and conditions set forth in this Agreement, the services set forth in the Order Confirmation (each, a “Service” and together, the “Services”).  This Agreement becomes effective on the date the “ACCEPT” button on the Order Confirmation is clicked (the “Effective Date”).  Capitalized terms used (a) in the Order Confirmation but not defined therein have the meaning set forth in these terms and conditions and (b) in these terms and conditions but not defined in the sentence within which the term is used have the meanings set forth in the Order Confirmation or Paragraph 15 below.  In consideration of the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Yodle agree to the following:

1. Yodle Sponsored Service

The terms of this paragraph apply only if Customer has purchased the Yodle Sponsored Service.  The Yodle Sponsored Service is a managed service.  Yodle will create Ads based on the Customer Content, and will distribute the Ads through the Yodle Distribution Network.  Yodle determines the Go-Live Date of the Yodle Sponsored Service.  The Yodle Sponsored Service will include either a template adverSite or a Mirror Site (the “adverSite”).  Yodle will create the adverSite and will register and administer the adverSite URL.

2. Yodle Organic Service

The terms of this paragraph apply only if Customer has purchased the Yodle Organic Service.  The Yodle Organic Service includes the application of “on page” and “off page” search engine optimization tactics designed to achieve a higher ranking for Customer’s website in search engine results and optimization for Customer’s business listing in Google maps/places.  To the extent its website is not hosted on Yodle’s servers, Customer will provide access to its website to enable Yodle to perform the Yodle Organic Service.  Yodle determines the Publication Date of the Yodle Organic Service.  Customer acknowledges that search results and search engine rankings are influenced by several factors, and, unless expressly set forth in this Agreement, Yodle does not guarantee any particular placement, position or rank for Customer’s website or business listing in any search results.

3. License

Customer hereby grants Yodle and its designees a non-exclusive, irrevocable (during the Term), worldwide, transferable, sublicensable right and license, in connection with providing the Services, to (a) use, reproduce, mirror, distribute, modify, perform and display the Customer Content (or any portions thereof),  (b) use Customer’s name and logo, (c) distribute the Ads and Customer Content to the Yodle Distribution Network and (d) list, represent, register or establish accounts or keywords.

4. Ownership

Customer owns the Customer Content.  As between Yodle and Customer, Yodle owns any content (other than Customer Content), templates, data or technology in connection with the Services.  If Customer desires to continue to use the adverSite after termination of this Agreement and has paid all amounts due to Yodle, then Yodle will authorize the transfer of the adverSite URL to Customer within five (5) business days of Customer’s request (which request must be made within 30 days of termination of this Agreement) and hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable license to continue to use the adverSite as its website.  Notwithstanding the foregoing, (a) Customer may not (i) use any content of the adverSite other than Customer Content for any purpose, other than on the adverSite, or (ii) modify any of the content of the adverSite, other than Customer Content, (b) Yodle may remove third party content prior to transfer and (c) Customer will remove any third party content promptly after Yodle’s request.  Customer may not grant access to its Yodle account or share any data generated from the Services with any third party without Yodle’s prior written consent.

5. Payment

Customer will pay Yodle all amounts due under this Agreement, and Customer hereby irrevocably authorizes Yodle to charge the credit card or other payment method provided for any such amounts when due.  Amounts due will be automatically charged, in advance, and are not refundable.  If Customer’s credit card expires, Customer hereby gives Yodle permission to submit the credit card charge with a later expiration date.  If Yodle suspends any Service due to non-payment by Customer, Customer agrees that it owes all amounts that would be due for the Commitment Period of the suspended Service as if such Service had not been suspended.  The amount set forth on the Order Confirmation as the “Initial Charge” is due on the Effective Date.  The Monthly Sponsored Advertising Budget will be used as a result of clicks, calls or other placement or advertising services in connection with distribution of Customer’s Ads through the Yodle Distribution Network.  In any monthly billing cycle, Yodle may use up to 110% of the Monthly Sponsored Advertising Budget.  Any balance of the Monthly Sponsored Advertising Budget at the end of a monthly billing cycle, positive or negative, will be rolled over to the next monthly billing cycle, and any negative balance of the Monthly Sponsored Advertising Budget at the end of the last month of the Yodle Sponsored Service is due at that time.  If Yodle does not receive timely payment of any amount due under this Agreement, Customer agrees to pay all amounts due pursuant to this Agreement upon demand and will reimburse Yodle for all charges and fees Yodle incurs in collecting payment.

6. Representations and Warranties

By continuing to use the Services under this Agreement, Customer represents and warrants throughout the Term and for any period thereafter that Customer continues to use the adverSite that (a) it has the full right, power and authority to grant the licenses and related rights granted herein and has acquired any and all third party clearances, permissions and licenses that are necessary in connection with Yodle’s exercise of such rights and licenses, (b) the Customer Content is true and accurate, does not violate any law or regulation and is not misleading, defamatory, libelous or slanderous and (c) Yodle’s use of the Customer Content in connection with providing the Services will not infringe upon or violate the rights or property interests of any third party.  Customer will notify Yodle in writing promptly if any of the foregoing representations and warranties becomes untrue.

7. Call Recording and Monitoring

For quality assurance, Yodle records and/or monitors calls between Customer and Yodle agents, employees and/or its affiliates regarding the Services (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.

8. Indemnification

Customer agrees to indemnify, defend and hold harmless Yodle, its successors, officers, directors, employees, designees and agents (the “Indemnified Parties”) from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) (“Claims”) relating to or arising from the Customer Content, Customer’s use of the Services, or breach (or alleged breach) of Customer’s representations, warranties and covenants under this Agreement.  If Customer is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Customer waives any Claims it may have against Yodle arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless the Indemnified Parties against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.

9. Disclaimers

THE SERVICES AND YODLE DISTRIBUTION NETWORK ARE PROVIDED ON AN “AS IS” BASIS.  UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, YODLE MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY KIND, 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.  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.

10. Limitations

YODLE 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 OR PROFITS OR LOSS OF BUSINESS OR DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER YODLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF. CUSTOMER SHALL HAVE NO RECOURSE AGAINST YODLE OR ITS DESIGNEES FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OF CUSTOMER’S PROPRIETARY RIGHTS BY THIRD PARTIES OR FOR LOSS OR HARM DUE TO UNAUTHORIZED USE OF CUSTOMER’S ADS OR ADVERSITE BY THIRD PARTIES.  IN ANY EVENT, YODLE’S MAXIMUM LIABILITY 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.

11. Taxes

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.

12. Termination of Agreement; Cancellation and Suspension of Services

This Agreement shall become effective on the Effective Date and shall remain in effect until terminated or canceled as set forth herein (the “Term”).  Once the Commitment Period for a particular Service has ended, (a) the term of such Service will continue month to month thereafter, and Customer will be billed the applicable monthly fees on a monthly recurring basis, until such Service is canceled and (b) Customer may cancel such Service and will be charged for any outstanding amounts due at the time of such cancellation.  Notwithstanding the foregoing, Customer may not terminate this Agreement until the Commitment Period for all of the Services has ended, and Customer may not cancel any Service until the Commitment Period for such Service has ended.  Termination by Customer of this Agreement, of any Service or of Call Recording of Inbound Calls must be e-mailed to Customer’s Interactive Marketing Specialist.  If the Go-Live Date or Publication Date, as applicable, has not occurred within 60 days of the date Customer agreed to purchase the Services as a result of Customer delay, then Yodle may cancel the Services without refund.  If Customer breaches any provision of this Agreement, Yodle may suspend Customer’s Services.  If such breach is capable of being cured, Customer will have 10 days to cure such breach; provided that Yodle is not required to provide an opportunity to cure if Customer subsequently commits the same breach.  If such breach cannot be cured or is not cured within any applicable cure period, Yodle may cancel the Services or terminate this Agreement and/or pursue all other available remedies, including recovery from Customer of Yodle’s costs and attorneys fees incurred in pursuing such remedies.  Notwithstanding the foregoing, Yodle may terminate this Agreement or cancel any of the Services in its discretion at any time, with a refund only of any prepaid but unused fees.  The provisions of Paragraphs 4-11, Paragraphs 13-15, and this sentence shall survive the termination of this Agreement.

13. General

This Agreement (a) is governed by the laws of the State of New York, excluding its conflict of laws principles, (b) may be amended only in a writing signed by both parties or by Yodle e-mailing revised terms and conditions to Customer or posting revised terms and conditions in Customer’s Yodle account and (c) constitutes the complete and entire expression of the agreement between the parties, and supersedes any and all other representations, warranties and agreements, whether written or oral, with respect to the subject matter hereof.  The exclusive venue for any dispute relating to this Agreement shall be New York County, New York, and Customer hereby waives any jurisdictional, venue or inconvenient forum objections thereto.  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 written notice of its intent to file an action. Yodle will provide such notice by e-mail to Customer’s e-mail address on file with Yodle, and Customer must provide such notice by e-mail to disputeresolution@yodle.com.  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.  These terms shall be severable and construed to the extent of their enforceability in light of the parties’ mutual intent.  Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section.  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 Services shall be of no effect and may be accepted for administrative convenience only.

14. Electronic Contract

This Agreement is an electronic contract that sets out the legally binding terms of the Services.  Customer (or its authorized agent) indicates acceptance of this Agreement by clicking on the “ACCEPT” button.  This action 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.  By clicking on the “ACCEPT” button, Customer (or its authorized agent) acknowledges reading and accepting this Agreement and represents, warrants and agrees that Customer (or its authorized agent) has the power, authority and legal right to enter into this Agreement on behalf of Customer.

15. Defined Terms

(1) “Ads” means advertisements created by Yodle with information about Customer’s business.  (2) “Commitment Period” for a Service means the portion of the Term during which Customer may not cancel that Service.  (3) “Customer Content” means any content of Customer used by Yodle in providing the Services, including the content of Customer’s website that Yodle uses to create a Mirror Site and any third party logos (e.g., society memberships).  (4) “Go-Live Date” means the date that Customer’s account is active and its Ads are being distributed over the Yodle Distribution Network.  (5) “Mirror Site” means a mirrored version of Customer’s website created by Yodle with the same look and feel as, but a different URL than, Customer’s website.  (6) “Publication Date” means the date that either (i) if Yodle hosts the website, Customer’s website is published by Yodle or (ii) if Yodle does not host the website, Yodle has implemented its tracking codes on Customer’s website.  (7) “Term” has the meaning set forth in Paragraph 12.  (8) “Yodle Distribution Network” means the network of advertising channels through which Yodle distributes the Ads, including (i) Google (the “Google Network”), (ii) all other advertising channels (the “Yodle Network”) and (iii) all other forms of media, applications, and devices.