Yodle Local Terms of Use

BRANDED BUSINESS DIRECTORY TERMS AND CONDITIONS

1. Certain Definitions.

As used in the Agreement, the following terms have the meanings set forth below:

"Agreement" has the meaning in the Order Form.

"Branded Business Directory" means the version of the Yodle Business Directory that is branded with a mutually agreed upon Company Brand Feature in the header and footer of each page and is located at a subdomain of the Yodle Website.

"Brand Features" means the trademarks, service marks, logos and other distinctive brand features of a Party.

"Business Day" means Monday through Friday, except for United States federal holidays.

"Click" means a click by a User on a listing in the Branded Business Directory.

"Company Website" means the website with its homepage located as of the Effective Date at the URL listed in the Order Form, including any and all substitution, mirror, or successor sites or URLs at which the Company Website may be located and operated by or for Company during the Term.

"Console" means certain content provided to Company by Yodle that links to the Branded Business Directory.

"Fraudulent Click" means any Paid Click generated in violation of Section 3.3.

"Local Search Landing Page" means any page on the Company Website that displays the Console.

"Order Form" means the Order Form between Yodle and Company for the Branded Business Directory.

"Paid Click" means any Click, other than Fraudulent Clicks, for which Yodle receives payment from a third party.

"Party" means either Company or Yodle.

"User" means a real live computer user, which excludes any robots; spiders; hitbots; scripts; software; hidden links; scrapers; or other mechanical or artificial technologies, other than Company's employees, contractors or agents (except in the course of normal, individual use).

"Yodle Business Directory" means the directory that includes content with respect to local businesses, with its homepage located as of the Effective Date at http://www.yodlemarketingsolution.com, including any and all substitution, mirror, or successor sites or URLs at which the Yodle Business Directory may be located and operated by or for Yodle during the Term.

"Yodle Website" means the website with its homepage located as of the Effective Date at www.yodle.com, including any and all substitution, mirror, or successor sites or URLs at which the Yodle Website may be located and operated by or for Yodle during the Term.

2. Licenses.

Subject to the provisions of the Agreement, each Party hereby grants to the other Party during the Term a non-exclusive, worldwide, fully paid up, royalty-free, irrevocable (except for a breach of this Section 2) license to use, copy, store, archive, distribute, transmit, and publicly display such Party's Brand Features, and in the case of Yodle as the licensor, the Console, in accordance with the Agreement to fulfill its obligations hereunder and to lawfully promote the licensor, the Branded Business Directory, the Agreement and the relationship created hereunder, and as otherwise agreed to in writing by the licensor. No licenses are granted by any Party except for those expressly set forth in the Agreement, and all licenses not expressly granted in the Agreement are reserved by the Parties. Except as set forth in Section 3.4 or this Section 2, nothing in the Agreement restricts, or should be deemed to restrict, a Party's right to exercise any licenses received from any third parties or to grant other or similar rights or licenses to any third parties.

3. Company's Obligations.

3.1 Console and Navigation Bar. Commencing on the Launch Date and throughout the Term, Company will (a) display the Console on at least one (1) Local Search Landing Page and (b) include a tab in the navigation bar that links to the homepage of the Branded Business Directory. Company will host the Console and implement the code for the Console on the Local Search Landing Pages in unaltered form. The link from the Console and the navigation tab to the Branded Business Directory must be direct and may not be interrupted by pop-up ads, interstitial ads or pages, or otherwise and cannot be redirected or have rel=nofollow tags. The Console will appear on the Local Search Landing Pages as a result of Company placement of Yodle provided code directly on the Local Search Landing Pages. The Console may require a software call to Yodle's servers. Other than displaying the Console and the navigation tab as set forth herein, Company is solely responsible for the development and maintenance of the Company Website. Additional implementations of the Console and navigation tab bar links may be implemented upon mutual agreement of the parties.

3.2 Company Brand Features. Within five (5) Business Days of the Effective Date, Company will provide Yodle with the header and footer creative materials in accordance with Yodle specifications, for integration into the Branded Business Directory, that are consistent with the look and feel of the Local Search Landing Page(s).

3.3 Clicks. Company will not engage in, authorize, permit, or enable the generation of Clicks through any means that could reasonably be interpreted as coercive, incentivized, misleading, invalid, automated, or fraudulent.

3.4 Exclusivity. During the Term, Company shall not promote, offer, sell or otherwise make available the online local business directory of any other provider of an online local business directory.

4. Yodle's Obligations.

4.1 Branded Business Directory. Yodle will provide Company with the code for the Console not less than five (5) Business Days prior to the Launch Date. The actual date of launch will be the "Launch Date". Other than displaying the header and footer as set forth herein, Yodle is solely responsible for the development and maintenance of the Branded Business Directory. The Branded Business Directory will be displayed only when a User visits the Branded Business Directory from the Console links residing on the Local Search Landing Pages, the navigation tab or by directly typing in the Branded Business Directory URL.

4.2 Payment. Yodle will pay Company the Revenue Share as set forth in the Order Form. 4.3 Tracking and Reporting. Yodle will track all Clicks. Within 30 days of the end of each month of the Term, Yodle will provide a report to Company that sets forth, for the month covered by the report, the number of Clicks, the number of Paid Clicks and the Revenue Share.

5. Intellectual Property Rights; Ownership

5.1 By Company. Yodle acknowledges and agrees that, as between Company on the one hand and Yodle on the other, Company owns all right, title and interest in and to the Company Brand Features and the Company Website (other than the Console).

5.2 By Yodle. Company acknowledges and agrees that, as between Company on the one hand, and Yodle on the other, Yodle owns all right, title and interest in and to the Yodle Brand Features, the Console and the Branded Business Directory (other than Company's header and footer).

6. LIMITATIONS.

6.1 DISCLAIMER. YODLE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR UNINTERRUPTED SERVICE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

6.2 EXCLUSION OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS, FUTURE LOST PROFITS, REPROCUREMENT COSTS, COSTS OF COVER OR SIMILAR LOSSES, ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.3 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL EITHER PARTY'S LIABILITY ARISING OUT OF THE AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY YODLE TO COMPANY UNDER THE AGREEMENT DURING THE THREE (3) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY.

7. Term and Termination

7.1 Term. Unless earlier terminated in accordance with the termination rights set forth in the Agreement, the term of the Agreement shall be for an initial period that commences on the Effective Date and ends one (1) year after the Launch Date (the "Initial Term"). After the Initial Term, the Agreement will automatically renew for consecutive one (1) year periods (each, a "Renewal Term"), unless either party provides the other party with at least thirty (30) days' notice of its intent not to renew. As used herein, the "Term" means the Initial Term and any Renewal Term.

7.2 Termination for Cause. If either Party breaches or defaults in the performance of any material provision of the Agreement, then the non defaulting Party shall give written notice to the defaulting Party of such default. If the default is not cured during the five (5)-Business Day period after such written notice, then the non-defaulting Party may terminate the Agreement immediately by written notice to the defaulting Party.

7.3 Termination Upon Mutual Agreement of the Parties. The Agreement may be terminated at any time upon the mutual agreement of both Parties hereto, evidenced by a writing signed by both Parties.

7.4 Termination for Convenience. Yodle may terminate the Agreement for any or no reason with at least ninety (90) days' prior written notice.

7.5 Additional Termination Rights. Either Party may terminate the Agreement immediately upon notice if the other Party: (a) becomes insolvent; (b) files a petition in bankruptcy or becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or (c) makes an assignment for the benefit of its creditors.

7.6 Additional Remedies. Except as expressly limited by the Agreement, termination of the Agreement will be without prejudice to any other remedy that may be available to a Party due to breach of the Agreement.

7.7 Survival of Certain Terms. The provisions of Sections 4.2, 4.3, 5, 6, 8.2, 9 and Subsections 7.6 and 7.7 of this Section will survive the termination or expiration of the Agreement for any reason. All other rights and obligations of the Parties will cease upon termination of the Agreement.

8. Public Announcements; Confidentiality

8.1 Public Announcements. Any and all publicity relating to the Agreement (a) must fairly and accurately represent the Parties' business relationship, (b) must not conflict with the Agreement and (c) requires the prior written consent of both Parties.

8.2 Confidentiality. "Confidential Information" means any and all information disclosed by one Party to the other Party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, customer lists, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of the Agreement. The Agreement is deemed to be Confidential Information of both Parties and may not be disclosed without the other Party's prior written approval. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of the receiving party; (b) was in the receiving party's lawful possession prior to the disclosure and had not been subject to limitations on disclosure or use; (c) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (d) is lawfully disclosed hereafter to the receiving party, without restriction, by a third party who did not acquire the information directly or indirectly from the disclosing party. Each party agrees that, except in connection with the performance of its obligations under the Agreement, it will not otherwise use in any way for its own account or the account of any third party, nor disclose to any third party, any Confidential Information revealed to it by the other party. Notwithstanding the foregoing, Confidential Information may be disclosed pursuant to a regulation, law, court order or rule of any applicable securities exchange (but only to the minimum extent required to comply with such regulation, order, or rule and with advance notice to the disclosing party), and Yodle and Company have the right to disclose the provisions of the Agreement to its affiliates. Each party shall take commercially reasonable efforts to protect the confidentiality of the other party's Confidential Information, such precaution not to be less than the precautions each party takes to protect the confidentiality of its own Confidential Information.

9. General

9.1 Assignment. Neither Party may assign the Agreement or any of its rights and obligations hereunder, in whole or in part, without the other party's prior written consent; provided that either party may assign the Agreement in its entirety without the other party's written consent, unless the assignee of the Agreement is a competitor of the non-assigning party, to any affiliate of the assigning party; in connection with the sale or transfer of all or substantially all of the assigning party's assets, the acquisition in one or a series of transactions by a person or group of 50% or more of the beneficial ownership of the assigning party, or a consolidation, business combination, merger, or similar transaction. Any assignment in contravention of this Section is null and void.

9.2 Notices. All notices, requests, consents, and other communications under the Agreement shall be in writing, and shall be delivered by hand or sent by reputable overnight courier service or electronic facsimile transmission (with a copy sent by first class mail, postage prepaid) or mailed by first class certified or registered mail, return receipt requested, postage prepaid, to the Parties at their respective addresses as set forth in the Order Form. Notices provided in accordance with this Section shall be deemed delivered (i) immediately if personally delivered or sent by electronic facsimile transmission, or (ii) if sent by overnight courier service, 24 hours after deposit with such courier service, or (iii) if sent by certified or registered mail, return receipt requested, 48 hours after deposit in the mail. Either Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth.

9.3 Governing Law. The Agreement is governed by the laws of the State of New York (other than the conflicts of laws provisions thereof), and each Party hereby consents to the jurisdiction of the Federal or state courts in New York County, and waives any jurisdictional, venue or inconvenient forum objections thereto.

9.4 Full Understanding; Headings. The Parties acknowledge that the Agreement was negotiated at arms length, with the aid of counsel or with a reasonable opportunity for each Party to secure counsel and, accordingly, they desire that the agreement be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting Party, and without reference to the paragraph headings, which are for reference only.

9.5 Severability. If any provision or part of a provision in the Agreement is held to be illegal, invalid, or unenforceable by a court or other decision making authority of competent jurisdiction, then the remainder of the provision will be enforced so as to effect the intention of the Parties, and the validity and enforceability of all other provisions in the Agreement will not be affected or impaired.

9.6 Relationship of the Parties. The Parties acknowledge and agree that they are dealing with each other as independent contractors. Neither the Agreement, nor any terms and conditions contained in the Agreement may be construed to (i) give either Party the power to direct and control the day to day activities of the other; (ii) create or constitute a partnership, joint venture, franchise, employment or agency relationship between the parties; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever. Neither Party owes the other Party or any third party any compensation for performing the actions contemplated by the Agreement, except as expressly set forth in the Agreement. The Agreement is made for the benefit of the Parties only, and the Agreement is not for the benefit of, and was not created for the benefit of, any third parties.

9.7 No General Waiver. The waiver by either Party of a breach or default of any provision of the Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power, or privilege by such Party.

9.8 Entire Agreement; Amendment; Counterparts; Facsimile Signature. The Agreement and its Schedules are the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, communications, and understandings, both written and oral, regarding such subject matter. The Agreement shall not be amended, altered or changed and no provision hereof shall be waived except by written agreement signed by both Parties or, in the case of a waiver, by the Party waiving compliance. The Agreement may be executed in any number of counterparts, all of which taken together constitute a single instrument. Execution and delivery of the Agreement may be evidenced by facsimile transmission.

9.9 Dispute Resolution. The Parties will endeavor in good faith to resolve amicably any disputes arising under the Agreement and such disputes shall be referred in the first instance to a Vice President of Yodle and a Vice President of Company. If these individuals cannot resolve the issue satisfactorily within ten (10) Business Days, the dispute shall be referred to a Senior Vice President of Yodle and a Senior Vice President of Company who shall have ten (10) Business Days to resolve the dispute. If the Parties fail to resolve the dispute within the second ten (10) Business Day period, either Party can initiate action as set forth in Section 9.3 hereof.