Terms of Service Agreement

Rev. January 19, 2017

This Terms of Service Agreement (“Agreement”) provides the terms and conditions pursuant to which RevLocal, LLC, an Ohio Limited Liability Company (“RevLocal”) will provide certain local search marketing, digital marketing and related Services (defined herein) to Client. As used in this Agreement, “Client” means a natural person or legal entity (such as a corporation, limited liability company, firm, partnership or other entity recognized at law) who subscribes for and receives the Services, together with such person or entity’s affiliates, subsidiaries, successors and assigns.

THE SERVICES ARE OFFERED TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY RECEIVING OR USING ANY OF THE SERVICES, IN WHOLE OR IN PART, CLIENT AGREES TO ENTER INTO THIS AGREEMENT.

1. Services. In consideration of the promises of Client set forth herein (including without limitation Client’s payment of the consideration for the Services as herein provided), RevLocal will provide Client with (i) local search marketing (including review marketing and reputation management) services; and/or (ii) social content generation services (including content generation, distribution, and campaign optimization) (collectively, as applicable the “Services”). Unless Client purchases a multi-location subscription, Services shall correspond to one unique geographic location, which shall be designated and agreed-upon during the sign-up process. Services for separate locations will increase fees payable by Client hereunder. In connection with the delivery of the Services, RevLocal will provide Client with access to detailed reporting for the Services using RevLocal’s online proprietary reporting/dashboard (“Reveal”).

Client acknowledges that RevLocal provides other services to its customers, such as paid advertising services and website development services. Such other services, if applicable to Client, are covered by separate terms of service agreements between RevLocal and Client and are not covered by this Agreement.

2. Term; Authorization. RevLocal will provide the Services to Client on a month-to-month basis (each month during which Services are provided to Client hereunder is referred to herein as a “Subscription Period”). A one-time onboarding fee and the first Subscription Period installment payment is due to RevLocal on sign-up via credit card or ACH payment. Installment payment amounts are subsequently billed and collected for the upcoming Subscription Period as provided herein.

3. Authorization. Client authorizes RevLocal to act on Client’s behalf as Client’s local search marketing provider during the initial Subscription Period and all renewal Subscription Periods, with respect to all Services provided by RevLocal hereunder. Such authorization includes the right to post, publish and edit Client’s Web business profile information and Internet and social media advertisements and (where elected by Client) to post content to such profiles or advertisements.

4. Copyright. Ownership of content generated by RevLocal in connection with the Services transfers from RevLocal to Client (where permitted by third party licensing arrangements) only after payment in full by Client of all invoices applicable to such content. RevLocal’s Reveal portal and any methods of optimization disclosed by RevLocal to Client cannot be copied or used by Client except as expressly contemplated by this Agreement in connection with the Services, and any such right shall terminate upon termination of this Agreement unless expressly authorized in writing by RevLocal. Client acknowledges that, at RevLocal’s expense, a domain name may be registered and hosted with a microsite created for Client in furtherance of delivery of the Services hereunder. The microsite and related domain are integrated into RevLocal’s proprietary digital marketing system and shall remain the property of RevLocal and shall not be transferable to Client.

In providing the Services RevLocal may utilize and/or make available to Client software owned by third parties and licensed to RevLocal (“Third Party Software”). Client’s use (where permitted) of Third Party Software is governed by software licenses relating to such Third Party Software. These Terms and Conditions do not modify the terms of any Third Party Software license agreements.

5. Fees and Payment. As consideration for the Services, Client agrees to pay a one-time onboarding fee and the periodic subscription fees associated with the Services requested by Client and identified during the sign-up process. Subscription fees are subject to modification by RevLocal at any time.

All payments to RevLocal for the Services shall be made in immediately available funds, in U.S. Dollars (Canadian Dollars for Canadian Clients), by credit card (Visa, MasterCard or American Express) or automatic checking account withdrawal (“ACH” – available for U.S. Clients only). RevLocal may retain and store Client’s payment information, including but not limited to, credit card number and expiration date or ACH account and routing information. Due to the nature of the Services, all sales for each periodic Subscription Period are non-refundable, except as expressly provided herein. RevLocal is authorized to charge the subscription renewal fee for upcoming Subscription Period Services to the credit card or ACH account provided to RevLocal by Client. Client may change its billing information on written notice to RevLocal. Invoices, where requested by Client, shall be delivered solely by e-mail to Client’s e-mail notice address provided to RevLocal during the sign-up process.

Credit Card or ACH customers must pre-pay for at least one month’s Services in advance and will be billed monthly in advance of the Services being provided after conclusion of the applicable pre-payment period.

Failure by Client to maintain valid and current payment arrangements with RevLocal may result in interruption or cancellation of the Services. Such interruption does not relieve Client of the obligation to pay for Services already provided to Client by RevLocal. If RevLocal is, or becomes, required by law to deduct or withhold any taxes (including without limited to sales taxes, use taxes, ad valorem taxes, or similar charges or assessments) from amounts due to RevLocal from Client, then all amounts due from Client shall be increased so that the net amount actually received by RevLocal after deduction or withholding of any such tax, charge or assessment will equal 100% of the agreed-upon charges.

All amounts not paid by Client shall bear interest at a rate of 1.0% per month (or the highest rate permitted by law, if less). Client agrees to pay all costs of collection (including reasonable attorney’s fees, expert witness fees, court costs, etc.) incurred by RevLocal arising from or relating to enforcement of its rights against Client.

Client is not entitled to any credits, rebates, discounts (volume or otherwise) or refunds provided to RevLocal by any third party online search providers or publishers.

6. Termination.

(a) By Client. This Agreement and any renewal subscription arising hereunder may be terminated by Client by delivery to RevLocal of Client’s intention not to renew at least five days prior to the end of the then-current Subscription Period. Any termination notice received later than five days prior to the end of the current Subscription Period shall be effective immediately following the next applicable Subscription Period.

(b) By RevLocal. RevLocal may terminate this Agreement and/or suspend all or any portion of the Services at any time, without notice to Client, in the event Client fails to maintain valid payment information with RevLocal, or in the event that Client fails to pay for the Services. RevLocal may terminate this Agreement on at least 60-days written notice to Client in the event that RevLocal should determine that it will cease providing the same type of Services to all other eligible Clients that were receiving such Services as Client.

RevLocal may also decline to provide the Services, cancel the Services or to discontinue processing any subscription for Services not yet performed, at any time, and from time to time, in RevLocal’s sole and absolute discretion, if RevLocal determines in good faith that Client’s business practices: (i) are illegal, immoral, unethical or reasonably likely to expose RevLocal or its affiliates to potential criminal, administrative or civil liability, (ii) may result in damage to RevLocal’s reputation or image; or (iii) present any other issue or concern which RevLocal determines in good faith constitutes grounds for such termination. If RevLocal exercises such right to decline or cancel the Services, RevLocal will provide written notice to Client of such exercise and will refund to Client the un-earned portion of any deposits or subscription payments previously paid by Client in the immediately-preceding subscription period, within thirty (30) days after issuing such notice. Upon cancellation of the Services, RevLocal shall have no further duties or responsibilities except as expressly set forth herein regarding post-termination responsibilities of the parties.

(c) Bankruptcy, etc. Either party may terminate this Agreement immediately in the event that the other party becomes insolvent, or the other party makes an assignment for the benefit of creditors, or the other party does not pay its debts as they become due or admits its inability to pay its debts when due, or the other party files or has filed against it a petition under any provisions of the Bankruptcy Act or an application for a receiver, trustee or custodian is made with respect to such Party.

(d) Duties on Termination. Upon any termination of this Agreement for any reason, Client shall: (i) discontinue any use, retention, display or distribution of any of the work product or materials provided to Client by RevLocal hereunder for which ownership has not passed to Client pursuant to Section 4 hereof and delete from all storage servers and devices all such work product or materials; (ii) discontinue all use of RevLocal’s trademarks, together with all other software of intellectual property owned or licensed by RevLocal (including Reveal); (iii) delete from all storage servers and devices all work product or materials received under this Agreement for which title has not passed to Client; and (iv) discontinue its use of all Third Party Software if required by the license agreements pertaining to same.

Upon termination of this Agreement, RevLocal shall exercise reasonable efforts to return to Client, delete or destroy (in RevLocal’s sole and absolute discretion) all Client Data (defined herein) provided by Client in connection with the Services. Due to the impracticability of removal of content from social media forums, content posted by RevLocal on Client’s behalf during the term of this Agreement on social media forums, blogs or other electronic services may continue after termination of this Agreement, without the necessity of deletion or discontinuation by RevLocal. RevLocal will exercise reasonable efforts to provide Client, on Client’s written request therefore, with user name and password access to third party social media and other electronic accounts established on behalf of Client by RevLocal. RevLocal reserves the right to discontinue RevSite blog posts displaying Client’s social media content after termination of this Agreement.

7. Client Data; License.

(a) Client is responsible for providing RevLocal with current and accurate data necessary for RevLocal to provide the Services. As used herein, “Client Data” shall include, without limitation, client’s website domain name and URL, Client’s business name, address, telephone number(s), facsimile number(s), e-mail address(es), social media and website content subject matter, ideas and concepts, artwork and other printed material or data submitted by Client to RevLocal to enable RevLocal to provide the Services hereunder. Client hereby grants RevLocal a royalty-free license during the term of this Agreement and all renewal terms to use the Client Data for purposes of providing the Services.

(b) In the course of using the Services, Client may be required to provide RevLocal personally-identifiable information of Client, including contact information, username and password (“Credentials”). All Credentials submitted by Client in this respect constitute Client Data pursuant to the immediately preceding paragraph. RevLocal handles personally-identifiable information of its customers with reasonable attention, care and security. Nonetheless, Client, not RevLocal, shall be responsible for maintaining and protecting Client’s Credentials in connection with the Services. If Client’s Credentials change, Client must notify RevLocal promptly and keep such information current. Client is solely responsible for any activity using Client’s Credentials, whether or not Client authorized such activity. Client should immediately notify RevLocal of any unauthorized use of Client‘s Credentials or if Client’s email address, user name or password has been hacked or stolen. Client will notify RevLocal immediately if Client discovers that any third party is using Client’s Credentials without Client’s consent, or Client discovers any other breach of security pertaining to Client’s Credentials

8. Client Representations and Warranties. Client represents and warrants to RevLocal that: (a) Client owns or has all requisite rights, licenses and permissions to submit the Client Data to RevLocal for the use contemplated by the Services; (b) the use by RevLocal of the Client Data for the purposes of providing the Services hereunder does not, and will not, infringe any intellectual property or other rights of any third party or the laws, rules, regulations, orders or treaties of any governmental authority or jurisdiction; (c) the Client Data does not, and will not, infringe upon any trademark, copyright, contract or property rights of any third parties and that Client has paid any and all royalties or other charges to be paid pursuant to the copyright law of the United States, any statute, order or other law, right or contract governing the Client Data; (d) the Client Data does not, and will not, contain any materials which are libelous, defamatory, obscene, or invades the rights of privacy or other rights of any individual; (e) Client’s business activities comply with the applicable laws, rules and regulations of all federal, state and local governmental authorities having jurisdiction over Client; (f) Client has all necessary power and authority to enter into and perform in accordance this Agreement; (g) this Agreement is legal, valid, binding and enforceable against Client; and (h) neither the execution of, nor performance under, this Agreement by Client violates or will violate any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to Client.

9. Client Indemnification. Client shall indemnify, defend and hold harmless RevLocal, together with its officers, directors, employees, agents, contractors and permitted assigns from and against any and all third party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with: (i) the lawful use of or reliance by RevLocal on the Client Data in performing the Services under this Agreement, (ii) any breach of or default under the terms, conditions, representations or warranties of this Agreement by Client, or (iii) any negligence, gross negligence or willful misconduct by or on behalf of Client or its employees or agents.

10. Express Limited Warranty; Limitations on Liability.

(a) Limited Warranty. RevLocal shall provide the Services under this Agreement in a professional manner, consistent with generally-accepted standards applicable to the marketing industry in which the Services subside. Due to periodic changes in search engine algorithms and accessibility of open source citations, RevLocal cannot guarantee search engine result pages or line placement where Client’s business will appear.

(b) Representations and Warranties Limited. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SERVICES ARE PROVIDED “AS-IS” AND REVLOCAL DOES NOT MAKE ANY WARRANTY, REPRESENTATION OR GUARANTY AS TO THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OF THE SERVICES OR OTHER DATA, REPORTS OR INFORMATION FURNISHED TO CLIENT HEREUNDER. FURTHERMORE, THE SERVICES MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. THE EXPRESS LIMITED WARRANTY SET FORTH IN PARAGRAPH 10(a) IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTIES ARE HEREBY DISCLAIMED. ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED.

(c) No Authority to Modify. No employee, salesperson, vendor or other agent or purported agent of RevLocal is authorized to make any warranties, representations or guaranties to the contrary of the foregoing, and any such purported warranties, representations or guaranties shall not be relied upon as having been given by or on behalf of RevLocal. Furthermore, Client acknowledges that it is the responsibility of Client to verify any information upon which it or any of its employees or agents use, rely on or otherwise take action upon with respect to financial or other consequences.

(d) Limitations on Liability. If RevLocal fails to perform its duties and obligations under this Agreement, and Client can establish that as a direct result thereof, Client has incurred any damages, liabilities, losses, fees, costs or expenses, then RevLocal’s liability to Client for actual damages for any cause whatsoever, during the term of this Agreement, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed in the aggregate the fees that Client has paid for the Services in question during the Subscription Period in question. IN NO EVENT SHALL REVLOCAL OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES SUSTAINED OR INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH THE SERVICES, ANY ACTION ANY OF THEM TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS CLIENT SENDS TO REVLOCAL OR THE DELAY OR INABILITY TO USE ANY SERVICES, OR REVLOCAL’S REMOVAL, MODIFICATION, SUSPENSION OR DELETION OF ANY SERVICES PURSUANT TO ITS RIGHTS UNDER THIS AGREEMENT, IN ALL CASES, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND EVEN IF REVLOCAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AN ACTION FOR NON-PAYMENT BY REVLOCAL, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.

(e) Search Engine Guideline Penalties. Client shall inform RevLocal of any past or future marketing plans implemented or to be implemented by Client so that RevLocal may factor such plans into its planning for the Services hereunder. RevLocal shall not be responsible for any search engine guideline penalties caused by Client’s marketing plans, whether or not disclosed to RevLocal.

(f) Third Party Art. From time to time, Client may request RevLocal to provide photographs, images, infographics, illustrations or other artwork in connection with RevLocal’s provision of the Services. To the extent that such photographs, images, infographics, illustrations or other artwork are sourced by RevLocal from one or more third party services and provided to Client as part of the Services, such items constitute “Third Party Art” hereunder. RevLocal cannot, and does not, guaranty that all Third Party Art is validly-licensed for Client’s intended or actual use. ACCORDINGLY, CLIENT ACKNOWLEDGES AND AGREES THAT IF CLIENT REQUESTS REVLOCAL TO INCLUDE THIRD PARTY ART AS A COMPONENT OF THE SERVICES, CLIENT ASSUMES ALL RISKS ASSOCIATED WITH CLIENT’S USE OF THIRD PARTY ART. CLIENT AGREES TO PERFORM WHATEVER DUE DILIGENCE CLIENT BELIEVES IS NECESSARY IN ORDER TO PERMIT CLIENT TO USE THIRD PARTY ART INCLUDED IN THE SERVICES (INCLUDING WITHOUT LIMITATION, OBTAINING AN INDEPENDENT LICENSE IN CLIENT’S NAME TO USE SUCH THIRD PARTY ART). CLIENT HEREBY AGREES TO HOLD HARMLESS REVLOCAL, ITS AFFILIATES, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, SUCCESSORS AND PERMITTED ASSIGNS, FROM AND AGAINST ANY AND ALL COSTS INCURRED OR PAID BY CLIENT OR ANY THIRD PARTY ON ACCOUNT OF THIRD PARTY ART INCLUDED WITH THE SERVICES, EXCEPTING THEREFROM, COSTS INCURRED AS A DIRECT AND PROXIMATE RESULT OF REVLOCAL’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

11. Confidential Information.

(a) Definition. For purposes of this Section 11, “Confidential Information” of a Disclosing Party shall mean and include any information, written or oral, which relates to such Disclosing Party’s business, products, processes or services that is specifically designated as “Confidential Information” by such Disclosing Party or that constitutes “trade secrets” pursuant to the Uniform Trade Secrets Act as adopted in the State of Ohio, USA. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (a) information that was already known to the receiving party prior to disclosure or is later made public by or for the Disclosing Party on an authorized basis; (b) information obtained or readily ascertainable from the general public; (c) information received from a third party not known to be employed by or affiliated with the disclosing party; (d) information that was independently developed by the Receiving Party without reference to Confidential Information; and (e) information which is or becomes known to the general public other than through a breach of this Agreement. Client acknowledges and agrees that RevLocal may share information about RevLocal’s customers and basic information about Client’s listing and statistical summary data with prospective customers for the purpose of marketing RevLocal’s services. The terms of this Agreement, along with RevLocal’s pricing, software and technical documentation related to the Services shall be deemed Confidential Information regardless of any lack of designation.

(b) Duties. Each party (a “Receiving Party”) shall treat all Confidential Information, tangible and intangible, received by it in connection with this Agreement that pertains to the other party (a “Disclosing Party”) as confidential and proprietary information of the Disclosing Party, will not make any such Confidential Information available to any other person (except a subcontractor or contractor/affiliate who has also agreed to provisions substantially similar to those set forth in this Section 11), will use reasonable care to protect such Confidential Information from theft, loss, misuse and disclosure and will not use such Confidential Information except for Receiving Party’s benefit in connection with this Agreement. Each Receiving Party will, to the extent reasonably possible, return to the Disclosing Party all Confidential Information on termination of this Agreement. If a Receiving Party is ordered by law to disclose Confidential Information, such Receiving Party may do so, but only to the extent required by applicable law or process and only after first giving the Disclosing Party prompt written notice of that order.

(c) Remedies. The Parties acknowledge that the Confidential Information is of a special and extraordinary character, and that any breach of this Section 11 will cause a Disclosing Party irreparable injury and damage, and so each Disclosing Party will be entitled, in addition to all other legal or equitable remedies available to it, to injunctive relief to prevent, cease or otherwise redress that breach.

11. Miscellaneous.

(a) Assignment. Client may not assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining RevLocal’s written consent, except that Client may assign this Agreement without RevLocal’s consent (i) to an affiliate (controlled by or under common control with, Client); or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Client’s assets not involving a direct competitor of RevLocal; provided that Client provides prompt written notice to RevLocal of such assignment. Any permitted assignment by Client shall not modify the terms hereof, including without limitation, the specific geographic location applicable to the Services. Any attempt to assign Client’s rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

(b) Notice. Except as otherwise provided in this Agreement, any notice to Client that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon transmission when sent by e-mail or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to the address provided by Client in the sign-up materials provided to RevLocal in connection with entering into this Agreement or to such other address as provided in writing by Client to RevLocal for such purposes. Except as otherwise provided in this Agreement, any notice to RevLocal that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by e-mail to: info@RevLocal.com or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, such as Federal Express or equivalent, to: RevLocal, Inc., 4009 Columbus Road SW, Ste 222, Granville, OH 43023-8613, Attn: Legal Notice. Upon receipt, if a valid e-mail address is provided and remains current, RevLocal may give notice to or communicate with Client by e-mail addressed to the persons identified in the sign-up process or to such other e-mail address or persons as Client shall hereafter specify by prior written notice. By providing an e-mail address, Client agrees that any receipt received by RevLocal from Client’s service provider or Internet computer server indicating that the e-mail was received shall be deemed proof that Client received the message. If Client cannot see or print all or a portion of a message, Client agrees that it is Client’s responsibility to contact RevLocal to resolve such technical issues.

(c) Force Majeure. Due performance of any duty or obligation hereunder by RevLocal hereunder shall be excused if prevented by acts of God, information providers or other service providers, public enemy, war, terrorism, any accident, explosion, fire, storm, earthquake, flood, strike, computer outage or virus, telecommunications failure or any other circumstance beyond or event RevLocal’s reasonable control. 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 Client as a result of a search or query on any third party Web site. Client further acknowledges that RevLocal has no responsibility for, or control over, third party social media content requirements or rules applicable thereto.

(d) Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, then the validity, legally or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties waive any provisions of law that render any provision of this Agreement invalid, illegal or unenforceable in any respect.

(e) Waiver or Consent. Any failure by either of the Parties to comply with any obligation, covenant, condition or agreement contained herein may be waived in writing by the party entitled to the benefits thereof, but such waiver or failure to insist on strict compliance with such obligation, covenant, condition or agreement shall not operate as a waiver of or estoppel with respect to any subsequent or other failure. To be effective, any consent by RevLocal must be in writing and signed by an authorized representative of RevLocal.

(f) Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes and replaces all prior writings or oral negotiations or other understandings with respect thereto.

(g) Independent Parties. Nothing in this Agreement shall be construed as creating a partnership, joint venture, fiduciary or (except as expressly set forth in Section 2) agency relationship between the parties, or as authorizing either party to act as an agent for the other. The parties to this Agreement are independent parties.

(h) Resolution of Disputes; Binding Arbitration; No Class Representative Actions or Arbitrations.

(i) ANY AND ALL CLAIMS BETWEEN REVLOCAL AND CLIENT BE RESOLVED IN BINDING ARBITRATION RATHER THAN IN COURT. RevLocal and Client agree to submit to individual arbitration the resolution of any and all Claims (defined herein) by or between RevLocal or its affiliates and Client relating to the Services or these Terms of Service. RevLocal and Client agree that these Terms of Service affect interstate commerce, and that the enforceability of this Section 11(h) will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1–9 (“FAA”). “Claim(s)” means any dispute, claim or controversy by or between Client and/or RevLocal or its affiliates, relating to the Services and/or these Terms of Service, as may be modified from time-to-time, and the subject matter hereof, including, but not limited to, any contract, tort, statutory, or equity claims.

(ii) Any arbitration will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (the “AAA Rules”), as modified by this Agreement. As required by the AAA Rules, if Client initiates the arbitration proceedings, Provider must send the original copy of the completed form to RevLocal, which should be sent to RevLocal at the notice address set forth in Section 11(b), Attention: “Arbitration Notice.”

(iii) CLIENT AND REVLOCAL AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Client and RevLocal expressly agree that any Claim is personal to Client and RevLocal and its affiliates, and any such Claim shall only be resolved by an individual arbitration, and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding.

(i) Governing Law; Forum for Disputes. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Ohio applicable to agreements made and wholly performed therein. Client hereby consents to the exclusive jurisdiction of the federal and state courts of competent jurisdiction located in Franklin County, Ohio for the adjudication of any disputes arising out of or relating to this Agreement or Client’s access to or use of the Services. Client hereby waives any objection to venue or inconvenient forum laid therein.

(j) Revisions. In order to meet changes in search engine guidelines or other factors impacting Web and social media content optimization and marketing trends, RevLocal may revise this Agreement at any time by updating this posting and providing Client with written notice of such update. Client should visit this page from time to time to review the current Agreement, which shall continue to be binding on Client in its revised form.

(k) Privacy Policy. The RevLocal Privacy Policy available at www.revlocal.com/Privacy/ is hereby incorporated into this Agreement. By receiving the Services, Client is deemed to have read and accepted the RevLocal Privacy Policy. Violation of the RevLocal Privacy Policy by Client shall be a material breach of this Agreement.

Rev. January 19, 2017

TERMS OF SERVICE AGREEMENT – PAID ADVERTISING

Rev. January 17, 2017

This Terms of Service Agreement – Paid Advertising (“Agreement”) provides the terms and conditions pursuant to which RevLocal, LLC, an Ohio Limited Liability Company (“RevLocal”) will provide Paid Advertising Services (defined herein) to Client. As used in this Agreement, “Client” means a natural person or legal entity (such as a corporation, limited liability company, firm, partnership or other entity recognized at law) who subscribes for and receives the Services, together with such person or entity’s affiliates, subsidiaries, successors and assigns.

THE PAID ADVERTISING SERVICES ARE OFFERED TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY RECEIVING OR USING ANY OF THE PAID ADVERTISING SERVICES, IN WHOLE OR IN PART, CLIENT AGREES TO ENTER INTO THIS AGREEMENT.

1. Paid Advertising Services. In consideration of the promises of Client set forth herein (including without limitation Client’s payment of the consideration for the Paid Advertising Services as herein provided), RevLocal will provide Client with advertising services intended to promote Client and/or Client’s business through search engine marketing directed to online search engines such as Google®, Yahoo!®, and Bing® and online display advertising through online publishers such as Google® Ads Display Network, Facebook® and Twitter® (all such services, collectively, “Paid Advertising Services”). Paid Advertising Services may involve RevLocal providing Client with statistical data concerning the effectiveness of the Paid Advertising Services in a given period (“Tracking Information”). Tracking Information may be partially comprised of recorded information resulting from customer or prospect telephone inquiries resulting from the Paid Advertising Services (“Call Tracking Information”). In connection with the delivery of the Paid Advertising Services, RevLocal will deliver detailed reports to Client using its proprietary reporting system (the “Reporting System”). RevLocal will use commercially reasonable efforts to effectuate placement of Client’s advertising in geographic location(s) identified by Client in the sign-up process, provided however, that RevLocal does not guarantee that such advertising will be displayed in such target locations.

2. Campaign Period. RevLocal will provide the Paid Advertising Services to Client on a periodic basis agreed upon by Client and RevLocal during the sign-up period (the “Campaign Period”). Unless earlier terminated as provided herein, the Campaign Period will begin on the date RevLocal commences the Paid Advertising Services by submitting placement orders to search engines and/or publishers. Due to applicable start-up requirements and third party search engine or publisher procedures, the Campaign Period start date may not immediately correspond to the date designated in the sign-up documentation. The Campaign Period will end at the time Client’s Advertising Budget (defined herein) is substantially depleted in a given Campaign Period. Generally, a Campaign Period is intended to correspond to a month-to-month advertising cycle; however, RevLocal cannot guarantee that Client’s Advertising Budget will be fully-utilized within any particular time period. Therefore, Client’s Campaign Period could be shorter or longer depending on the application of Client’s Advertising Budget from time to time. RevLocal shall have the full and complete authority with respect to the application of the Advertising Budget during the Campaign Period.

3. Campaign Budget and Other Fees. Client agrees to pay the following amounts in furtherance of the Paid Advertising Services in accordance with the payment procedures set forth in Section 4:

a. Campaign Budget amounts agreed upon by Client during the sign-up period, on a recurring basis at the beginning of each Campaign Period, which amounts will be applied from Client’s account retained by RevLocal, as and when determined by RevLocal (in its sole and absolute discretion), to secure placement of advertising in connection with the Paid Advertising Services on behalf of Client.

b. Service fees charged by RevLocal for managing and tracking Client’s campaign during the Campaign Period, including provision by RevLocal of selection, placement, optimization, formulation, tracking, monitoring and related services toward implementation and management of Client’s campaign during the Campaign Period (collectively, “Management Fees”). Management Fees shall consist of a percentage of the Campaign Budget pursuant to RevLocal’s Paid Advertising Fee Schedule, as amended from time to time by RevLocal.

c. If agreed upon by Client during the sign-up period, RevLocal will also be entitled to receive a one-time onboarding fee with respect to administrative aspects of establishing Client’s Paid Advertising campaign (onboarding to include items such as key-word development, phone tracking set-up, creative services and other administrative items).

d. RevLocal will be entitled to collect excess data fees when the monthly limit of 90 minutes of incoming recorded calls is exceeded. The current rate for excess calls over the allotment of 90 minutes is $.20 per minute. These rates may adjust from time to time at RevLocal’s discretion and client agrees to pay the then current rate. Any such data fees will be billed in the Campaign Period immediately following the Campaign Period in which they are incurred.

The amounts described in Section 3 are referred to collectively as “Campaign Charges”). RevLocal reserves the right to change any of the Campaign Charges at any time, on written notice to Client. Such changes (if any) will take effect in the Campaign Period immediately following the notice to Client.

4. Payment Terms.

a. Unless otherwise agreed upon by RevLocal in writing, all Campaign Charges are payable in advance in immediately available funds, in U.S. Dollars, by credit card (Visa, MasterCard or American Express) or automatic checking account withdrawal (“ACH”). Campaign Charges are payable in advance prior to the initiation of each Campaign Period, with the initial payment and associated onboarding fee (if any) being a requirement of the initial Paid Advertising Services and associated campaign.

b. RevLocal may retain and store Client’s payment information, including but not limited to, credit card number and expiration date or ACH account and routing information. Client agrees that any billing and payment information provided by Client to RevLocal may be used by third-party payment processors and agents, solely for billing and collection purposes.

c. Due to the nature of the Services, all Campaign Charges expended or earned by RevLocal for each Campaign Period are non-refundable.

d. Client hereby authorizes RevLocal to process payment by the credit card or ACH payment method agreed-up by Client (or such other credit card or ACH payment method as is established by Client by notice to RevLocal from time to time) for all Campaign Charges on a monthly basis. Confirmation of payment of all Campaign Charges for the current Campaign Period shall be a requirement of RevLocal’s providing any Paid Advertising Services for such Campaign Period. Client acknowledges that all Campaign Charges must be paid before any amounts are spent for the Campaign Period and that RevLocal may terminate or suspend Paid Advertising Services in the event Client fails to pay such amounts as required herein. Unspent amounts will rollover into the next Campaign Period, with two exceptions: (i) If the Client cancels RevLocal will keep any unspent amounts; and (ii) if the unspent amount is $10 or less for any bill period, it will not roll over.

e. Client may change its method of payment on 30-days written notice to RevLocal.

f. In the event Client and RevLocal agree upon a different Campaign Budget during any Campaign Period, such revised Campaign Budget (and corresponding Campaign Charges) may be applicable in the current Campaign Period, the Campaign Period immediately following the current Campaign Period, or both. RevLocal will confirm to client by electronic mail the details relating to any different Campaign Budget, and the application of such Budget to the current and following Campaign Periods and any other aspects of such different Campaign Budget.

g. Failure by Client to maintain valid and current payment arrangements with RevLocal may result in interruption or cancellation of the Paid Advertising Services. Such interruption does not relieve Client of the obligation to pay for Paid Advertising Services already provided to Client by RevLocal. If RevLocal is, or becomes, required by law to deduct or withhold any taxes (including without limited to sales taxes, use taxes, ad valorem taxes, or similar charges or assessments) from amounts due to RevLocal from Client, then all amounts due from Client shall be increased so that the Management Fee actually received by RevLocal after deduction or withholding of any such tax, charge or assessment will equal 100% of the Management Fee otherwise applicable.

h. All amounts not paid by Client shall bear interest at a rate of 1.0% per month (or the highest rate permitted by law, if less). Client agrees to pay all costs of collection (including reasonable attorney’s fees, expert witness fees, court costs, etc.) incurred by RevLocal arising from or relating to enforcement of its rights against Client under this Agreement.

i. Client is not entitled to any credits, rebates, discounts (volume or otherwise) or refunds provided to RevLocal by any third party online search providers or publishers.

5. Termination.

a. Client may terminate this Agreement for any reason upon 30 days written notice to RevLocal. Upon receipt of such notice by RevLocal, payment shall become immediately due for all previous Paid Advertising Services not yet paid, including the Paid Advertising Services during the 30-day notice period.

b. RevLocal may terminate this Agreement if Client violates any provision of this agreement or the RevLocal Privacy Policy, and Client does not cure any such breach within 10 days of notification of the breach from RevLocal. Failure to pay the agreed upon fees in a timely manner constitutes a material breach. Failure to respond to communications from RevLocal within 10 days constitutes a material breach. RevLocal may also terminate this Agreement for any reason or for no reason, upon 30 days written notice to Client.

c. Upon termination of this Agreement for any reason, Client shall discontinue any use, retention, display or distribution of any of the work product or materials provided to Client by RevLocal hereunder (including without limitation, RevLocal’s trademarks and the Reporting System) and delete from all storage servers and devices all such work product or materials received under this Agreement. Upon termination of this Agreement, RevLocal shall return to Client, delete or destroy (in RevLocal’s sole and absolute discretion) all Client Data (defined herein) provided by Client during the term of this Agreement.

d. Termination is a remedy in addition to, and not in place of, any other measure(s) which may be available to RevLocal in equity or in law.

e. In the event of termination by either party, the indemnification provision contained in Section 12 shall survive any such termination and remain in effect for a period of 3 years after termination.

f. In the event of a termination initiated by RevLocal due to Client’s breach of this Agreement, RevLocal shall retain any remaining balance in Client’s account as partial liquidated damages.

6. External Provisions. Both parties acknowledge and agree to the Google Adwords Policies currently located at https://support.google.com/adwordspolicy/answer/1316548?hl=en and also to the Google Privacy Policy currently located at https://www.google.com/intl/en/policies/privacy/, both of which are hereby incorporated by reference within this Agreement. Client agrees that Client’s consent herein shall also apply to any future successor policies published by Google covering substantially the same material. In the event that either party does not agree with these external provisions, then their sole remedy shall be to exercise their rights under the termination clause of this Agreement.

Both parties also acknowledge and agree that RevLocal may use other third party vendors, such as (without limitation) Facebook and Microsoft in the delivery of the Paid Advertising Services hereunder. Client acknowledges that such third parties may require adherence by both parties to policies governing items such as prohibited content, prohibited practices, restricted content, editorial and technical quality standards, and privacy. When such third party policies apply to the delivery of the Paid Advertising Services hereunder, the Parties shall comply with such third party policies. To the extent such third party policies are required to be incorporated into this Agreement, they are hereby so incorporated.

7. Recording and Tracking of Calls. Client agrees that Client’s telephone conversations with Client’s customers or prospects, which occur as a result of the Paid Advertising Services may be recorded unless Client specifically elects not to have such calls recorded by written notice to RevLocal. Client agrees that RevLocal may collect, store, analyze, track and process call meta-data (such as phone numbers, IP addresses, dates and times) relating to such calls, whether or not Client elects not to have such calls recorded. Any customer or prospect calls may begin with an announcement that the call may be recorded for quality assurance and training purposes. Both parties agree that if the customer or prospect continues with the call after this announcement, this constitutes the caller’s de facto consent to the recording. For purposes of quality assurance, assessment of effectiveness of its services, or all other lawful purposes, RevLocal may, but is not obligated to, access and review all recorded call data. Revlocal may delete all recorded call data 30 days after the end of each Campaign Period and shall have no obligation to store or retain such data thereafter. CLIENT REPRESENTS WARRANTS AND COVENANTS THAT IT WILL HAVE ALL NECESSARY RIGHTS TO IMPLEMENT CALL TRACKING FEATURES PROVIDED BY REVLOCAL HEREUNDER. CLIENT ACKNOWLEDGES THAT REVLOCAL DISCLAIMS ALL LIABILITY THAT MAY ARISE AS A RESULT OF PROVIDING SUCH CALL TRACKING SERVICES.

8. Third Party Art. From time to time, Client may request RevLocal to provide photographs, images, infographics, illustrations or other artwork in connection with RevLocal’s provision of the Paid Advertising Services. To the extent that such photographs, images, infographics, illustrations or other artwork are sourced by RevLocal from one or more third party services and provided to Client as part of the Paid Advertising Services, such items constitute “Third Party Art” hereunder. RevLocal cannot, and does not, guaranty that all Third Party Art is validly-licensed for Client’s intended or actual use. ACCORDINGLY, CLIENT ACKNOWLEDGES AND AGREES THAT IF CLIENT REQUESTS REVLOCAL TO INCLUDE THIRD PARTY ART AS A COMPONENT OF THE PAID ADVERTISING SERVICES, CLIENT ASSUMES ALL RISKS ASSOCIATED WITH CLIENT’S USE OF THIRD PARTY ART. CLIENT AGREES TO PERFORM WHATEVER DUE DILIGENCE CLIENT BELIEVES IS NECESSARY IN ORDER TO PERMIT CLIENT TO USE THIRD PARTY ART INCLUDED IN THE PAID ADVERTISING SERVICES (INCLUDING WITHOUT LIMITATION, OBTAINING AN INDEPENDENT LICENSE IN CLIENT’S NAME TO USE SUCH THIRD PARTY ART). CLIENT HEREBY AGREES TO HOLD HARMLESS REVLOCAL, ITS AFFILIATES, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, SUCCESSORS AND PERMITTED ASSIGNS, FROM AND AGAINST ANY AND ALL COSTS INCURRED OR PAID BY CLIENT OR ANY THIRD PARTY ON ACCOUNT OF THIRD PARTY ART INCLUDED WITH THE PAID ADBERTISING SERVICES, EXCEPTING THEREFROM, COSTS INCURRED AS A DIRECT AND PROXIMATE RESULT OF REVLOCAL’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9. Copyright. Ownership of content generated by RevLocal in connection with the Paid Advertising Services transfers from RevLocal to Client only after payment in full by Client of all amounts applicable to such content. RevLocal’s Reporting System and any methods of optimization disclosed by RevLocal to client cannot be copied or used by Client except as expressly contemplated by this Agreement in connection with the Paid Advertising Services, and any such right shall terminate upon termination of this Agreement unless expressly authorized in writing by RevLocal. Client acknowledges that, at RevLocal’s expense, a domain name and advertising account with one or more third party providers may be registered and hosted by third parties, with a website page or landing page approved by the client and created by RevLocal in furtherance of delivery of the Paid Advertising Services. Such domain, advertising account information and log-in password and credentials, together with all related advertising account and website content, shall remain the property of RevLocal and shall not be transferrable to Client.

10. Client Data; License.

a. Client is responsible for providing RevLocal with current and accurate data necessary for RevLocal to provide the Services. As used herein, “Client Data” shall include, without limitation, client’s website domain name and URL, Client’s business name, address, telephone number(s), facsimile number(s), e-mail address(es), social media and website content subject matter, ideas and concepts, artwork, photographs, images and other materials or data submitted by Client to RevLocal to enable RevLocal to provide the Paid Advertising Services hereunder. Client hereby grants RevLocal a non-exclusive, royalty-free, worldwide license during the term of this Agreement and all renewal terms to use, copy, display, modify and transmit the Client Data for purposes of providing the Paid Advertising Services.

b. Client represents and warrants to RevLocal that: (a) Client owns or has all requisite rights, licenses and permissions to submit the Client Data to RevLocal for the use contemplated by the Paid Advertising Services; (b) the use by RevLocal of the Client Data for the purposes of providing the Paid Advertising Services hereunder does not, and will not, infringe any intellectual property or other rights of any third party or the laws, rules, regulations, orders or treaties of any governmental authority or jurisdiction; (c) the Client Data does not, and will not, infringe upon any trademark, copyright, contract or property rights of any third parties and that Client has paid any and all royalties or other charges to be paid pursuant to the copyright law of the United States, any statute, order or other law, right or contract governing the Client Data; (d) the Client Data does not, and will not, contain any materials which are libelous, defamatory, obscene, or invades the rights of privacy or other rights of any individual; (e) Client has all necessary power and authority to enter into and perform in accordance this Agreement; (f) this Agreement is legal, valid, binding and enforceable against Client; and (g) neither the execution of, nor performance under, this Agreement by Client violates or will violate any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to Client.

c. RevLocal shall have discretion to select individual words or phrases (“Keywords”) to be used in furtherance of the Advertising Services. If Client requests the use of certain Keywords, RevLocal will exercise reasonable efforts to employ such Keywords within the scope of the Paid Advertising Services. RevLocal shall not be liable to client or third parties in the event Client requests RevLocal to use Keywords comprised of trademarks or other protected intellectual property of such third parties (such as competitors). RevLocal may (but shall have no obligation to), from time to time, remove from Client’s campaign, or suspend the use of, Keywords which RevLocal determines, in its sole and absolute discretion may interfere with third party intellectual property rights.

11. Client Representations and Warranties; Covenants. Client acknowledges that Client is solely responsible for any liability arising out of or relating to Client’s internet websites and social media sites, any advertisement or content provided by Client hereunder (including Keywords requested by Client and used by RevLocal as part of the Advertising Services) and any material to which users can link through such advertising content. In addition to Client’s representations and warranties concerning Client Data set forth in Section 10 hereof, Client represents and warrants that Client’s current Internet website, social media sites and all modifications thereof or additions thereto during the term of this Agreement do not and will not: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) violate any law, statute, ordinance, rule or regulation, including, without limitation, laws and regulations governing export control, country of origin, customs/duties, tariffs, false advertising, privacy, unfair competition and taxation; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain or deploy viruses, worms, Trojans, malware, or similar harmful programming routines.

12. Indemnification. Client shall indemnify, defend and hold harmless RevLocal, together with its affiliates, members, officers, directors, employees, agents, contractors and permitted assigns from and against any and all third party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with: (i) the lawful use of or reliance by RevLocal on the Client Data in performing the Paid Advertising Services under this Agreement, (ii) any breach of or default under the terms, conditions, representations or warranties of this Agreement by Client, or (iii) any negligence, gross negligence or willful misconduct by or on behalf of Client or its employees or agents.

13. Express Limited Warranty; Limitations on Liability.

(a) Limited Warranty. RevLocal shall provide the Paid Advertising Services under this Agreement in a professional manner, consistent with generally-accepted standards applicable to the online advertising industry. Due to periodic changes in search engine algorithms and accessibility of open source citations, RevLocal cannot guarantee search engine result pages or line placement where Client’s business will appear. REVLOCAL DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE PAID ADVERTISING SERVICES.

(b) Representations and Warranties Limited; Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PAID ADVERTISING SERVICES ARE PROVIDED “AS-IS” AND REVLOCAL DOES NOT MAKE ANY WARRANTY, REPRESENTATION OR GUARANTY AS TO THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OF THE PAID ADVERTISING SERVICES OR OTHER DATA, REPORTS OR INFORMATION FURNISHED TO CLIENT HEREUNDER. FURTHERMORE, THE PAID ADVERTISING SERVICES MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. THE EXPRESS WARRANTY SET FORTH IN PARAGRAPH 13(a) IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTIES ARE HEREBY DISCLAIMED. ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED. REVLOCAL SHALL HAVE NO LIABILITY FOR ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM CLIENT’S ACCESS TO OR USE OF THE PAID ADVERTISING SERVICES; UNAUTHORIZED ACCESS TO OR USE OF REVLOCAL’S SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; INTERRUPTIONS OF TRANSMISSION TO OR FROM THE PAID ADVERTISING SERVICES; BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRASMITTED BY OR THROUGH ANY THIRD PARTY; LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE PAID ADVERTISING SERVICES; PRIVACY-RELATED CLAIMS OR ACTIONS ASSERTED BY THIRD PARTIES (INCLUDING GOVERNMENTAL OFFICIALS) AS A RESULT OF RETENTION OF CALL DATA OR OTHER INFORMATION IN CONNECTION WITH THE PAID ADVERTISING SERVICES; OR MATTERS BEYOND REVLOCAL’S REASONABLE CONTROL.

(c) No Authority to Modify. No employee, salesperson, vendor or other agent or purported agent of RevLocal is authorized to make any warranties, representations or guaranties to the contrary of the foregoing, and any such purported warranties, representations or guaranties shall not be relied upon as having been given by or on behalf of RevLocal. Furthermore, Client acknowledges that it is the responsibility of Client to verify any information upon which it or any of its employees or agents use, rely on or otherwise take action upon with respect to financial or other consequences.

(d) Limitations on Liability. If RevLocal fails to perform its duties and obligations under this Agreement, and Client can establish that as a direct result thereof, Client has incurred any damages, liabilities, losses, fees, costs or expenses, then RevLocal’s liability to Client for actual damages for any cause whatsoever, during the term of this Agreement, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed in the aggregate the Management Fees (specifically excluding amounts comprising the Advertising Budget) that Client has paid for the Paid Advertising Services in question during the Campaign Period in question. IN NO EVENT SHALL REVLOCAL OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES SUSTAINED OR INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH THE PAID ADVERTISING SERVICES, ANY ACTION ANY OF THEM TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS CLIENT SENDS TO REVLOCAL OR THE DELAY OR INABILITY TO USE ANY PAID ADVERTISING SERVICES, OR REVLOCAL’S REMOVAL, MODIFICATION, SUSPENSION OR DELETION OF ANY PAID ADVERTISING SERVICES PURSUANT TO ITS RIGHTS UNDER THIS AGREEMENT, IN ALL CASES, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND EVEN IF REVLOCAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AN ACTION BY REVLOCAL FOR NON-PAYMENT, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCURED.

(e) Search Engine Guideline Penalties. Client shall inform RevLocal of any past or future marketing plans implemented or to be implemented by Client so that RevLocal may factor such plans into its planning for the Paid Advertising Services hereunder. RevLocal shall not be responsible for any search engine guideline penalties caused by Client’s marketing plans, whether or not disclosed to RevLocal.

14. Confidential Information.

(a) Definition. For purposes of this Section 14, “Confidential Information” of a Disclosing Party shall mean and include any information, written or oral, which relates to such Disclosing Party’s business, products, processes or services that is specifically designated as “Confidential Information” by such Disclosing Party or that constitutes “trade secrets” pursuant to the Uniform Trade Secrets Act as adopted in the State of Ohio, USA. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (a) information that was already known to the receiving party prior to disclosure or is later made public by or for the Disclosing Party on an authorized basis; (b) information obtained or readily ascertainable from the general public; (c) information received from a third party not known to be employed by or affiliated with the disclosing party; (d) information that was independently developed by the Receiving Party without reference to Confidential Information; and (e) information which is or becomes known to the general public other than through a breach of this Agreement. Client acknowledges and agrees that RevLocal may share information about RevLocal’s customers including basic information about Client with prospective customers for the purpose of marketing RevLocal’s services. The terms of this Agreement, along with RevLocal’s pricing, software and technical documentation related to the Paid Advertising Services shall be deemed Confidential Information regardless of any lack of designation.

(b) Duties. Each party (a “Receiving Party”) shall treat all Confidential Information, tangible and intangible, received by it in connection with this Agreement that pertains to the other party (a “Disclosing Party”) as confidential and proprietary information of the Disclosing Party, will not make any such Confidential Information available to any other person (except a subcontractor or contractor/affiliate who has also agreed to provisions substantially similar to those set forth in this Section 14), will use reasonable care to protect such Confidential Information from theft, loss, misuse and disclosure and will not use such Confidential Information except for Receiving Party’s benefit in connection with this Agreement. Each Receiving Party will, to the extent reasonably possible, return to the Disclosing Party all Confidential Information on termination of this Agreement. If a Receiving Party is ordered by law to disclose Confidential Information, such Receiving Party may do so, but only to the extent required by applicable law or process and only after first giving the Disclosing Party prompt written notice of that order.

(c) Remedies. The Parties acknowledge that the Confidential Information is of a special and extraordinary character, and that any breach of this Section 14 will cause a Disclosing Party irreparable injury and damage, and so each Disclosing Party will be entitled, in addition to all other legal or equitable remedies available to it, to injunctive relief to prevent, cease or otherwise redress that breach.

15. Miscellaneous.

(a) Assignment. Client may not assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining RevLocal’s written consent, except that Client may assign this Agreement without RevLocal’s consent (i) to an affiliate (controlled by or under common control with, Client); or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Client’s assets not involving a direct competitor of RevLocal; provided that Client provides prompt written notice to RevLocal of such assignment. Any permitted assignment by Client shall not modify the terms hereof, including without limitation, the specific geographic location applicable to the Paid Advertising Services. Any attempt to assign Client’s rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

(b) Notice. Except as otherwise provided in this Agreement, any notice to Client that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon transmission when sent by e-mail or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to the address provided by Client in the sign-up materials provided to RevLocal in connection with entering into this Agreement or to such other address as provided in writing by Client to RevLocal for such purposes. Except as otherwise provided in this Agreement, any notice to RevLocal that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by e-mail to: notice@RevLocal.com or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, such as Federal Express or equivalent, to: RevLocal, Inc., 4009 Columbus Rd. SW, Granville, OH 43023, Attn: Legal Notice. Upon receipt, if a valid e-mail address is provided and remains current, RevLocal may give notice to or communicate with Client by e-mail addressed to the persons identified in the sign-up process or to such other e-mail address or persons as Client shall hereafter specify by prior written notice. By providing an e-mail address, Client agrees that any receipt received by RevLocal from Client’s service provider or Internet computer server indicating that the e-mail was received shall be deemed proof that Client received the message. If Client cannot see or print all or a portion of a message, Client agrees that it is Client’s responsibility to contact RevLocal to resolve such technical issues.

(c) Force Majeure. Due performance of any duty or obligation hereunder by RevLocal shall be excused if prevented by acts of God, information providers or other service providers, public enemy, war, terrorism, any accident, explosion, fire, storm, earthquake, flood, strike, computer outage or virus, telecommunications failure or any other circumstance or event beyond RevLocal’s reasonable control. 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 Client as a result of a search or query on any third party Web site. Client further acknowledges that RevLocal has no responsibility for, or control over, third party social media content requirements or rules applicable thereto.

(d) Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, then the validity, legally or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties waive any provisions of law that render any provision of this Agreement invalid, illegal or unenforceable in any respect.

(e) Waiver or Consent. Any failure by either of the parties to comply with any obligation, covenant, condition or agreement contained herein may be waived in writing by the party entitled to the benefits thereof, but such waiver or failure to insist on strict compliance with such obligation, covenant, condition or agreement shall not operate as a waiver of or estoppel with respect to any subsequent or other failure. To be effective, any consent by RevLocal must be in writing and signed by an authorized representative of RevLocal.

(f) Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof and supersedes and replaces all prior writings or oral negotiations or other understandings with respect thereto.

(h) Independent Parties. Nothing in this Agreement shall be construed as creating a partnership, joint venture, fiduciary or agency relationship between the parties, or as authorizing either party to act as an agent for the other (except as expressly provided in Section 2). The parties to this Agreement are independent parties.

(i) Resolution of Disputes; Binding Arbitration; No Class Representative Actions or Arbitrations.

(i) ANY AND ALL CLAIMS BETWEEN REVLOCAL AND CLIENT BE RESOLVED IN BINDING ARBITRATION RATHER THAN IN COURT. RevLocal and Client agree to submit to individual arbitration the resolution of any and all Claims (defined herein) by or between RevLocal or its affiliates and Client relating to the Paid Advertising Services or these Terms of Service. RevLocal and Client agree that these Terms of Service affect interstate commerce, and that the enforceability of this Section 15(i) will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1–9 (“FAA””). “Claim(s)” means any dispute, claim or controversy by or between Client and/or RevLocal or its affiliates, relating to the Paid Advertising Services and/or these Terms of Service, as may be modified from time-to-time, and the subject matter hereof, including, but not limited to, any contract, tort, statutory, or equity claims.

(ii) Any arbitration will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (the “AAA Rules”), as modified by this Agreement. As required by the AAA Rules, if Client initiates the arbitration proceedings, Provider must send the original copy of the completed form to RevLocal, which should be sent to RevLocal at the notice address set forth in Section 15(b), Attention: “Arbitration Notice.”

(iii) CLIENT AND REVLOCAL AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Client and RevLocal expressly agree that any Claim is personal to Client and RevLocal and its affiliates, and any such Claim shall only be resolved by an individual arbitration, and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding.

(j) Governing Law; Forum for Disputes. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Ohio applicable to agreements made and wholly performed therein. Client hereby consents to the exclusive jurisdiction of the federal and state courts of competent jurisdiction located in Franklin County, Ohio for the adjudication of any disputes arising out of or relating to this Agreement or Client’s access to or use of the Services. Client hereby waives any objection to venue or inconvenient forum laid therein.

(k) Revisions. In order to meet changes in search engine guidelines or other factors impacting Web and social media content optimization and marketing trends, RevLocal may revise this Agreement at any time by updating this posting and providing Client with written notice of such update. Client should visit this page from time to time to review the current Agreement, which shall continue to be binding on Client in its revised form.

(l) Privacy Policy. The RevLocal Privacy Policy available at www.revlocal.com/Privacy/ is hereby incorporated into this Agreement. By receiving the Paid Advertising Services, Client is deemed to have read and accepted the RevLocal Privacy Policy. Violation of the RevLocal Privacy Policy by Client shall be a material breach of this Agreement.

Rev. January 19, 2017