National Organic Services Terms & Conditions
1) License.
Customer hereby grants Yodle and its designees a non-exclusive, limited worldwide, transferable, sublicensable right and license to (a) use, reproduce, mirror, distribute, modify, perform and display the Customer Content (or any portions thereof) in connection with providing the Services and (b) list, represent, register or establish accounts or keywords in connection with providing the Services.
2) Ownership.
Customer owns the Customer Content and any content created for Customer by Yodle. Yodle will authorize the transfer of the adverSite URLs to Customer upon termination of the Services, provided that Customer has paid all amounts due to Yodle under the Agreement. 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.
3) Payment Terms.
Customer will pay Yodle all amounts due under the Agreement. Amounts due will be automatically invoiced, in advance, and are not refundable. 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. If Yodle does not receive timely payment of any amount due under the Agreement, Customer agrees to pay all amounts due pursuant to the Agreement upon demand and will reimburse Yodle for all charges and fees Yodle incurs in collecting payment.
4) Call Recording.
Yodle records calls between Customer and Yodle agents regarding the Services (the “Service Calls”) and may record incoming calls to Customer’s tracking lines from, among others, prospective clients of Customer (the “Inbound Calls” and, collectively with Service Calls, “Call Recording”). Customer consents to Call Recording. Customer acknowledges that it is responsible for notifying and/or obtaining consent to Call Recording from all of its agents (including employees and independent contractors) who may be recorded 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.
5) Representations and Warranties.
By continuing to use the Services under the Agreement, Customer represents and warrants throughout the Term 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) use of the Customer Content 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 during the term of the Agreement.
6) Indemnification.
Customer agrees to indemnify, defend and hold harmless Yodle, its successors, officers, directors, employees, designees and agents 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 arise from the Customer Content or breach (or alleged breach) of Customer’s representations, warranties and covenants under the Agreement.
7) DISCLAIMERS.
THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND 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 ALL CONTENT ON THE ADVERSITE with ALL LOCAL, STATE AND FEDERAL laws AND REGULATIONS applicable to the customer. RECORDED CALLS MAY NOT MEET HIPAA REQUIREMENTS AND MAY NOT BE PRIVILEGED UNDER APPLICABLE LAW.
8) 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 THE 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 ADVERSITE BY THIRD PARTIES. IN ANY EVENT, YODLE’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE 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) Termination.
If Customer breaches any provision of the 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 a subsequent time 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 the 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 the 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 Sections 2-8, 10, 11 and this sentence shall survive the termination of the Agreement.
10) General.
The 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 the 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 sixty (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 the Agreement. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute arising under or relating to the Agreement, shall finally be settled in a court of competent jurisdiction as set forth herein. Yodle may assign the 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. 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.
11) Additional Defined Terms.
(1) “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. (2) “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. (3) “Term” has the meaning set forth in the Order Form. (4) “Services” has the meaning set forth in the Order Form.
