Rev. June 9, 2011
Terms of Service Agreement
1. Term. This Agreement shall commence on the Effective Date and shall continue on a month-to-month basis. This Agreement shall automatically renew for additional one month terms on the anniversary of the Effective Date (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party notifies the other in writing of its intention to terminate the Agreement at least 5 days prior to the monthly billing date (anniversary date) or unless otherwise previously terminated as provided for in this Agreement.
2. Services. RevLocal is a local search marketing service that: (a) manages a business’ online listings profile and local place page, which includes capturing specific information regarding a business, correcting errors or discrepancies that exist in current listings, and actively promoting and improving the online listing of the Client in various locations online (b) monitors and updates listings on a monthly basis with primary and secondary lists relevant for the specific client (c) distributes client information to companies that provide services related to search, so that the business may be present in the results of consumer queries that qualify the business based on the captured business information. (d) Provides an Internet Marketing Agent to the CLIENT to provide monthly updates of RevLocal activity and local search results, recommendations for online marketing opportunities and enhancements to continually improve the quality of the CLIENT’s online listings. (e) Provides optional additional online marketing services to increase exposure for Client in order to grow their business and generate new customers.
The CLIENT is responsible for helping RevLocal with correct data and current information to maximize the effectiveness of the listings services provided by RevLocal. Provided that CLIENT is current in its obligations, CLIENT’s data is included in all the submissions to the directories and lists that are recommended and provided to CLIENT as long as CLIENT maintains an active subscription with RevLocal. CLIENT acknowledges that RevLocal has no responsibility for or control over search engines or internet database partner(s) usage of customer data in fulfilling internet search queries or any particular placement of any information from a CLIENT business entity record as a result of a search or query on any third party Web site. CLIENT agrees that RevLocal may use the data that CLIENT provides for the purposes of providing RevLocal services.
3. Fees and Payment.
A. CLIENT agrees to submit to RevLocal all necessary authorization and data necessary to manage and enhance the listings of CLIENT. Each subscription is based on a single location. Multiple business locations must be a part of a Multi-location subscription. Online directories are based on the data for each unique business location and require individual management per location regardless of business ownership. RevLocal provides significant services immediately upon subscribing to the service. In many cases the impact of the services provided by RevLocal are not shown online by the major search engines for 90 days or more. In order to maintain the quality and ranking of the listings, RevLocal maintains the listings through monthly activity for each client. CLIENT agrees to a monthly subscription with no refund for monthly fees paid prior to cancellation. Monthly fees are due in advance via an automatic payment from a Visa, Mastercard, American Express or Discover credit card; automatic checking withdrawal (ACH).
Given the nature of the services provided, Check payment customers must pay for 3 months in advance and are billed quarterly in advance of services provided thereafter. Invoices will be provided to Client via email only. Invoices that are unpaid 15 days after the due date will be assessed a $25 late fee. Services are not deemed to be cancelled and will continue to be billed until RevLocal receives written notice of cancellation.
CLIENT shall pay the onetime set-up fees as listed on the Agreement, due and payable on Effective Date with payment for the first month of service. All listings shall automatically renew for additional one month terms upon expiration of the then current Term, unless terminated by either party within 5 days of the end of the then current term.
B. All fees shall be due and payable from CLIENT upon receipt of the invoice which will be provided via email. All fees are quoted in and due and payable in U.S. Dollars and do not include any duties or taxes. CLIENT shall pay all federal, state, and local sales, use, or other applicable taxes that may be imposed upon the provision of or use of RevLocal services. If any invoice rendered to CLIENT remains unpaid in whole or in part thirty (30) days after the invoice date, RevLocal shall have the right to suspend CLIENT’s listing until CLIENT becomes current in its payment obligations. RevLocal may increase the Listing Fees from time to time as agreed to by Client. Notice of any such fee change will be provided to CLIENT at least thirty (30) days prior to the date of such increase.
4. Indemnification.Each party (as the “Indemnifying Party”) shall indemnify and defend the other party (as the “Indemnified Party”) against any damages, liability or expense attributable to any claim arising from(a) the Indemnifying Party’s breach of this Agreement, or (b) the misuse of data related to this Agreement by the Indemnifying Party or the Indemnifying Party’s customer. The Indemnified Party shall promptly notify the Indemnifying Party of any such claim or legal proceeding and shall cooperate with the Indemnifying Party on the defense thereof.
5. Warranty.RevLocal warrants that it shall provide the Listing Services as defined in this Agreement. REVLOCAL DOES NOT WARRANT THAT THE LISTING SERVICES WILL BE ERROR-FREE. REVLOCAL ATTEMPTS TO VERIFY BUT CANNOT GUARANTEE THE COMPLETENESS, ACCURACY OR AUTHENTICITY OF THE DATA, AND THE LISTING SERVICES MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. REVLOCAL DOES NOT WARRANT THAT THE LISTING SERVICES WILL FULFILL ANY OF CLIENT’S PARTICULAR PURPOSES OR NEEDS. THIS AGREEMENT CONTAINS NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE.
6. Limitation of Liability.IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST INCOME, LOST REVENUE, LOST PROFITS, OR ANY CLAIM OR DEMAND AGAINST EITHER PARTY BY ANY THIRD PARTY, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, REGARDLESS OF FORESEEABILITY AND EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. REVLOCAL’S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT IN THE AGGREGATE EXCEED THE TOTAL AMOUNT PAID BY CLIENT FOR THE LISTING SERVICES FOR THE LAST SIX (6) MONTHS UNDER THIS AGREEMENT. THIS SHALL BE CLIENT’S EXCLUSIVE REMEDY. EXCEPT FOR AN ACTION FOR NON-PAYMENT, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT, MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. THE FOREGOING LIMITATIONS ON LIABILITY ARE INDEPENDENT, OF AND SHALL APPLY REGARDLESS OF, ANY FAILURE OF ESSENTIAL PURPOSE, OR ANY LIMITED OR EXCLUSIVE REMEDY OF ANY KIND.
7. Protection of Confidential Information.Each party agrees not to disclose the other party’s Confidential Information and to protect its confidentiality using at least the same degree of care that party uses to protect its own Confidential Information, which shall under no circumstances be less than reasonable, including not disclosing it to a third party unless there is a “need to know,” a “right to know,” and a written obligation by the third party to maintain the confidentiality. “Confidential Information” shall mean any information, written or oral, that relates to either party’s business, products, processes, or services that is designated as confidential or proprietary or that a reasonable party would understand to be confidential or proprietary, with the following exceptions: (a) information that was already known to the receiving party; (b) information obtained from public or published information; (c) information received from a third party not known to be employed or affiliated with the disclosing party; and (d) information which is or becomes known to the public other than through a breach of this Agreement (e) CLIENT acknowledges that RevLocal may share its customer list and basic information about CLIENT’s listing and statistical summary data with prospective customers for the purpose of marketing its services. The terms of this Agreement, along with RevLocal’s pricing, software, and technical documentation related to the Listing Services, shall be deemed Confidential Information regardless of any lack of designation. The obligation to protect Confidential Information shall survive the expiration or termination of this Agreement.
8. Rights and Obligations Upon Termination.This Agreement may be terminated by either party if the other party commits a material breach under this Agreement, and said breach has not been cured to the reasonable satisfaction of the non-breaching party within thirty (10) days of the date of notice from the non-breaching party stating in detail the nature of said breach. Upon termination or expiration of this Agreement: (a) CLIENT shall no longer be entitled to Listing Services from RevLocal as of the effective date of the termination; (b) CLIENT shall cease all use of RevLocal’s trademarks and destroy or deliver to RevLocal at RevLocal’s option, any and all copies of software or information provided by or derived from RevLocal in CLIENT’s possession; and (c) all rights and obligations of the parties under this Agreement shall cease, except for CLIENT’s payment obligations for the Term, which, in the case of CLIENT’s material breach, shall become fully payable upon termination.
A. Force Majeure.RevLocal shall not be liable for any failure to perform or delay in performance hereunder where such failure or delay is occasioned by force majeure or an act of God (including, but not limited to, fire, embargo, labor strike, terrorism), or circumstances beyond its control which shall prevent RevLocal from providing the Listing Services in the normal and usual course of its business.
B. Notices.All notices, requests, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand (and duly receipted), or sent via next-day delivery by a nationally recognized carrier with proof of delivery requested to the addresses as set forth in this Agreement or to such other person or address as any party may furnish or designate to the other in writing. Notice given by next-day delivery shall be deemed to have been given upon the first business day following the date sent to the recipient.
C. No Agency.RevLocal provides services as an independent contractor and nothing in this Agreement shall create any other relationship such as agency, partnership, joint venture, etc., and neither party shall represent that any such relationship exists.
D. Compliance with Laws.RevLocal and CLIENT shall comply with all applicable federal, state, county, and local laws, ordinances, regulations and codes in the performance of this Agreement.
E. Publicity.Each party agrees to obtain the other party's prior written approval of any marketing material or other information made available to a third party that describes the other party's products or services, provided, however, that each party may make reference to the other party’s corporate name and logo on its Web site and in its professional marketing materials. Client acknowledges that RevLocal may share with prospective customers the fact that Client partners with RevLocal and any summary data of results generated for Client.
F. Governing Law.This Agreement and all disputes and claims arising out of or related to this Agreement shall be governed and construed and enforced in accordance with the laws of the State of Ohio. Any suit, action, or proceeding arising from or relating to this Agreement, which is commenced by either party, must be brought in a court situated in Knox County, Ohio. RevLocal and CLIENT irrevocably consent to, and agree to submit to, the jurisdiction and venue of such court in any such suit, action, or proceeding.
G. Entire Agreement.This Agreement contains the entire understanding of the parties and supersedes all prior agreements and understandings, whether oral or written, between the parties with respect to such subject matter; and there are no restrictions, promises, warranties, covenants or undertakings other than those expressly set forth herein. Terms set forth in any purchase order or other similar document provided and duly authorized by RevLocal may be added as an addendum to this agreement.
H. Authority.The parties and each individual executing this Agreement on behalf of the parties hereto represent and warrant that such individual is duly authorized to execute and deliver this Agreement on behalf of his or her party.