Yodle Service Agreement

The following terms and conditions, the Order Confirmation, and any Change Order are collectively referred to as the "Agreement." The Yodle Service is provided by Yodle Web.com, Inc. and/or its applicable companies, affiliates and subsidiaries ("us", "we" or "Yodle") to you ("you", "your" or "Customer") under the terms and conditions of this Agreement, which may be updated by Yodle from time to time. Customer desires to use, and Yodle desires to provide to Customer, the services set forth in the Order Confirmation (each, a "Service" and together, the "Services"). This Agreement becomes effective on the date the "ACCEPT" button on the Order Confirmation is clicked (the "Effective Date"). Capitalized terms used (a) in the Order Confirmation but not defined therein have the meaning set forth in these terms and conditions and (b) in these terms and conditions but not defined in the sentence within which the term is used have the meanings set forth in the Order Confirmation or Paragraph 12 below. In consideration of the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Yodle agree to the following:

1. The Services.

1.1 Yodle Ads Service. The terms of this paragraph apply only if Customer has purchased the Yodle Ads Service. The Yodle Ads Service is a managed service. Yodle will create Ads based on the Customer Content, and will distribute the Ads through the Yodle Distribution Network. Yodle determines the Go-Live Date of the Yodle Ads Service. The Monthly Yodle Ads Advertising Budget will be used as a result of clicks, calls or other placement or advertising services in connection with distribution of Ads through the Yodle Distribution Network. In any monthly billing cycle, Yodle may use more than 100% of the Monthly Yodle Ads Advertising Budget. Any balance of the Monthly Yodle Ads Advertising Budget at the end of a monthly billing cycle, positive or negative, will be rolled over to the next monthly billing cycle, and any negative balance of the Monthly Yodle Ads Advertising Budget at the end of the last month of the Yodle Ads Service is due at that time.

1.2 Yodle Foundations Service. The terms of this paragraph apply only if Customer has purchased the Yodle Foundations Service. The Yodle Foundations Service includes the application of "on page" and "off page" search engine optimization tactics and the availability of features designed to achieve a higher ranking for Customer's adverSite in search engine results and optimization for Customer's business listing in Google(TM) maps/places. Yodle determines the Go-Live Date of the Yodle Foundations Service. Customer acknowledges that search results and search engine rankings are influenced by several factors, and Yodle does not guarantee any particular placement, position or rank for Customer's adverSite or business listing in any search results. Certain features of the Yodle Foundations Service are subject to the additional terms and conditions set forth below. p 1.3 Yodle Review Solicitation Service. The terms of this paragraph apply only if Customer has purchased the Yodle Review Solicitation Service. You agree to only solicit reviews from customers to whom you have provided your services. You acknowledge that not all reviews about your business will be positive. If your business receives a review that is four or more stars, Yodle will automatically (i) upload that review to your website and RateABiz.com and (ii) syndicate that review to the Yodle Distribution Network and to Google+ and Facebook. If your business receives a review that is three or fewer stars, you will have an opportunity to either (i) report any misconduct or (ii) respond to the review; and Yodle will upload that review and your response, if any, only to RateABiz.com ten (10) days from the date of the review. Further, Yodle reserves the right not to publish, or to remove, any review that it determines, in its sole discretion, is not legitimate. Upon termination of your Yodle review solicitation service, Yodle reserves the right to remove any reviews that it syndicated or published.

1.4 Yodle Email Marketing Service. The terms of this paragraph apply only if Customer has purchased a Yodle Service that includes the ability to send emails. You acknowledge and agree that you are the "sender" and Yodle is not a "sender" or "designated sender" for purposes of the CAN-SPAM Act. You agree not to upload into your contact list anyone who has unsubscribed from receiving emails from you. You agree that you are solely responsible for (i) supplying all required disclaimers and (ii) compliance with all local, state and federal laws and regulations, as well as any professional rules and regulations applicable to you, your business, and your employees, contractors and representatives, including with respect to any suggestions provided by Yodle that you choose to use. Certain functions are provided by a third party. The terms of use of that third party are incorporated by reference herein and, by using the email marketing or offers feature, you agree to the Third Party Service Provider Terms located at http://www.yodle.com/legal/terms/third-party-service-provider-terms/.

1.5 Yodle Web Service. he terms of this paragraph apply only if the Services include an adverSite. Yodle will implement a local website (the "adverSite") for you. Yodle will build, host and maintain each adverSite and will register and administer the adverSite URL.

1.6 Lead Tracking. Yodle will provide the temporary use of telephone number(s) that are used to track telephone leads generated by the Services. Yodle may block calls that it reasonably believes are not legitimate leads (i.e. solicitation calls).

1.7 Facebook Advertising Service. Yodle will prospect and/or retarget new potential customers, past website visitors and existing prospects/customers on behalf of the Advertiser (Customer) throughout the Facebook channel via mobile app, web, and newsfeed inventory. The Facebook Advertising Service is a managed service. Yodle and Advertiser (Customer) will agree upon campaign goals to help guide the development of banners and campaigns, and to guide the expenditure of advertising funds for optimization purposes. Targets for optimization may include leads, calls, reach or awareness and metrics will be shared and reported upon with the Advertiser (Customer). Banners and campaigns will be utilized on a local level and will become available for the locations to purchase into if not already covered by corporate expenditure.

Campaigns are run on a monthly basis and once a monthly campaign is started that monthly fee will be charged and fulfilled over the month. Any changes or cancellations to monthly budgets will take affect at the start of the next monthly billing cycle. In any monthly billing cycle, Yodle may use more than 100% of the monthly advertising budget. Advertising budget at the end of each month, positive or negative, will be rolled over to the next monthly billing cycle, and any negative balance of the monthly advertising budget at the end of the last month of the Facebook advertising service is due at that time.

2. Payment; Taxes.

2.1 This section will not apply to the extent another entity (e.g., a franchisor or manufacturer) is paying for the Services on Customer’s behalf. Customer will pay Yodle all amounts due under this Agreement, and Customer hereby irrevocably authorizes Yodle to charge the credit card or other payment method provided for any such amounts when due. In the event that you prepay for several months, you authorize us to charge that amount on the Effective Date. Amounts due will be automatically charged, in advance, and are not refundable. If Customer's credit card expires, Customer hereby gives Yodle permission to submit the credit card charge with a later expiration date. If Yodle suspends any Service due to non-payment by Customer, Customer agrees that it owes all amounts that would be due for the Commitment Period of the suspended Service as if such Service had not been suspended. The amount set forth on the Order Confirmation as the "Initial Charge" is due on the Effective Date. If Yodle does not receive timely payment of any amount due under this Agreement, Customer agrees to pay all amounts due pursuant to this Agreement upon demand and will reimburse Yodle for all charges and fees Yodle incurs in collecting payment.

2.2 Customer understands and agrees that portions of the charges made under this Agreement may be for items or services that are subject to sales or other transfer taxes for which Customer shall be liable, and Customer agrees that Yodle may make allocations of the base purchase prices under this Agreement to the taxable items or services provided to Customer and charge Customer such taxes in addition to the other base pricing provided for under this Agreement. Customer agrees to timely pay such tax charges by the same payment due dates as the charges for the items or services that are subject to tax. In the event Yodle fails to timely charge sales or other transfer taxes it may, after the fact, charge Customer applicable taxes, and Customer agrees to pay such charges within 30 days of receipt of invoices therefore.

3. Call Recording and Monitoring. For quality assurance, Yodle records and/or monitors calls between Customer and Yodle agents, employees and/or its affiliates regarding the Services (the "Service Calls"). If the Services include call recording, Yodle will record incoming calls between Customer, or Customer's agents, employees, and/or its affiliates and people who contact Customer through the tracking telephone number(s) Yodle provides (the "Inbound Calls" and, collectively with Service Calls, "Call Recording and Monitoring"). By this Agreement, Customer consents to any and all Call Recording and Monitoring performed by Yodle or its agents, employees and/or its affiliates. Customer acknowledges that it is responsible for notifying and obtaining consent to Call Recording and Monitoring from all of its agents (including employees and independent contractors) who may be recorded or monitored in a Service Call or Inbound Call (the "Recorded Persons"). It is Customer's sole responsibility to provide and/or obtain, and Customer covenants that it will provide and/or obtain, all notices, consents, and permissions relating to Recorded Persons as may be required by applicable laws and regulations.

4. Representations and Warranties. By continuing to use the Services, Customer represents and warrants throughout the Term and for any period thereafter that Customer continues to use the adverSite that (a) it has the full right, power and authority to grant the licenses and related rights granted herein and has acquired any and all third party clearances, permissions and licenses that are necessary in connection with Yodle's exercise of such rights and licenses, (b) the Customer Content is true and accurate, does not violate any law or regulation and is not misleading, defamatory, libelous or slanderous, (c) Yodle's use of the Customer Content in connection with providing the Services will not infringe upon or violate the rights or property interests of any third party and (d) it shall only use the Services and all features of Yodle Foundations in accordance with applicable state and federal laws and regulations, as well as professional rules and regulations applicable to Customer and Customer’s employees, contractors and representatives. You may use the Services to transmit Customer Content or direct us to make contacts via any channel (in either case "Messages") to, or with, recipients (the "Recipients"). You represent and warrant that you have the right to use all Customer Content and send all Messages to the Recipients (including obtaining any required consents from the Recipients) and that you are the transmitter of all Content and Messages and we are merely acting at your direction as a technology conduit for the transmission of the Content and the Messages. Customer will notify Yodle in writing promptly if any of the foregoing representations and warranties becomes untrue.

5. Business Associate Agreement. If Customer is a Covered Entity as defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and if Yodle is a Business Associate of Covered Entity under the HIPAA Privacy Regulations, the HIPAA Security Regulations and the HITECH Standards, then the terms of the Business Associate Agreement, which are located at http://www.yodle.com/legal/terms/business-associate-agreement/, are hereby incorporated by reference herein.

6. Licenses and Ownership. Customer hereby grants Yodle and its designees a non-exclusive, irrevocable (during the Term), worldwide, transferable, sublicensable right and license, in connection with the Services, to (a) use, reproduce, mirror, distribute, modify, perform and display the Ads and Customer Content (or any portions thereof), (b) use Customer's name and logo, (c) distribute the Ads and Customer Content to the Yodle Distribution Network, (d) list, represent, register or establish accounts or keywords and (e) manage directory (including Google+ Local) listings. As between Yodle and Customer, (i) Customer owns the Customer Content and (ii) Yodle owns any content (other than the Customer Content), templates, data or technology, including all related intellectual property rights, in and to the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Services. If Customer desires to continue to use the adverSite after termination of this Agreement and all amounts due to Yodle have been paid, then Yodle will authorize the transfer of the adverSite URL to Customer within 10 business days after Customer's request (which request must be made within 30 days of termination of this Agreement) and hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable license to continue to use the adverSite as its website. Notwithstanding the foregoing, (a) Customer may not use any content of the adverSite other than Customer Content for any purpose, other than on the adverSite, (b) Yodle may remove third party content prior to transfer and (c) Customer will remove any third party content promptly after Yodle's request. Customer is responsible for maintaining the confidentiality of the passwords to its Yodle account, and Customer may not grant access to its Yodle account or share any data generated from the Services with any third party without Yodle's prior written consent.

7. Term; Termination of Agreement; Cancellation and Suspension of Services.

7.1 If another entity has paid for the Services on your behalf, the term and termination provisions of that entity’s Service Agreement will govern the term and termination of your Services. For Services that you have paid for, Sections 7.2 and 7.3 below will apply.

7.2 This Agreement shall become effective on the Effective Date and shall remain in effect until terminated or canceled as set forth herein (the "Term"). Once the Commitment Period for a particular Service has ended, (a) the term of such Service will continue month to month thereafter at rates applicable at the time, and Customer will be billed the applicable monthly fees on a monthly recurring basis, until such Service is canceled and (b) Customer may cancel such Service and will be charged for any outstanding amounts due at the time of such cancellation. Notwithstanding the foregoing, Customer may not terminate this Agreement until the Commitment Period for all of the Services has ended, and Customer may not cancel any Service until the Commitment Period for such Service has ended.

7.3 Termination by Customer of this Agreement, of any Service or of Call Recording of Inbound Calls must be e-mailed to Customer's Interactive Marketing Specialist, and Customer must complete a cancellation call with its Interactive Marketing Specialist. Once Customer has completed the termination or cancellation process, the Agreement or applicable Service will be terminated or cancelled effective at the end of the then-current monthly billing cycle. If the Go-Live Date has not occurred within 60 days of the date Customer agreed to purchase the Services as a result of Customer delay, then Yodle may cancel the Services without refund. If Customer breaches any provision of this Agreement, Yodle may suspend Customer's Services. If such breach is capable of being cured, Customer will have 10 days to cure such breach; provided that Yodle is not required to provide an opportunity to cure if Customer subsequently commits the same breach. If such breach cannot be cured or is not cured within any applicable cure period, Yodle may cancel the Services or terminate this Agreement and/or pursue all other available remedies, including recovery from Customer of Yodle's costs and attorneys fees incurred in pursuing such remedies. Notwithstanding the foregoing, Yodle may terminate this Agreement or cancel any of the Services in its discretion at any time, with a refund only of any prepaid but unused fees. FOLLOWING TERMINATION OF THIS AGREEMENT, WE WILL SUSPEND ANY BUSINESS LISTINGS/CITATIONS THAT WE HAVE CLAIMED ON YOUR BEHALF AND YOU WILL NEED TO RECLAIM THEM. The provisions of Paragraphs 2-6, Paragraphs 8-12, and this sentence shall survive the termination of this Agreement.

8. Indemnification. Customer agrees to indemnify, defend and hold harmless Yodle, its successors, officers, directors, employees, designees and agents from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from the Customer Content, Customer's use of the Services, or breach (or alleged breach) of Customer's representations, warranties and covenants under this Agreement.

9. Disclaimers; Limitation of Liability.

9.1 THE SERVICES AND YODLE DISTRIBUTION NETWORK ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, YODLE MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. YODLE RESERVES THE RIGHT TO REMOVE CUSTOMER CONTENT OR DECLINE ANY SERVICE TO THE EXTENT THE CUSTOMER CONTENT OR CUSTOMER’S USE OF THE SERVICE DOES NOT COMPLY WITH THE TERMS OF THIS AGREEMENT OR ANY APPLICABLE LAWS; PROVIDED, HOWEVER, THAT CUSTOMER MAY NOT EXPRESSLY OR IMPLIEDLY RELY UPON YODLE’S APPROVAL TO SUPPORT ITS COMPLIANCE WITH ANY APPLICABLE LAW, RULE OR REGULATION. NOTHING CONTAINED IN THE FOREGOING SHALL SHIFT THE ULTIMATE LEGAL OR REGULATORY COMPLIANCE OBLIGATION IN ANY MANNER WHATSOEVER FROM CUSTOMER TO YODLE, IT BEING MUTUALLY INTENDED THAT SUCH OBLIGATION IS AND SHALL REMAIN SOLELY WITH CUSTOMER. YODLE IS NOT PERMITTED TO PROVIDE, AND DOES NOT PROVIDE, LEGAL ADVICE, AND CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE OF THE ADS AND ADVERSITE AND USE OF THE SERVICES IN COMPLIANCE WITH ALL LOCAL, STATE AND FEDERAL LAWS AND REGULATIONS AND PROFESSIONAL RULES AND REGULATIONS APPLICABLE TO THE CUSTOMER AND CUSTOMER’S EMPLOYEES, CONTRACTORS AND REPRESENTATIVES. RECORDED CALLS MAY NOT MEET HIPAA REQUIREMENTS AND MAY NOT BE PRIVILEGED UNDER APPLICABLE LAW.

9.2 YODLE WILL NOT BE LIABLE TO CUSTOMER (NOR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM CUSTOMER'S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING COST OF COVER, LOST REVENUES, GOODWILL OR PROFITS OR LOSS OF BUSINESS OR DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER YODLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF. CUSTOMER SHALL HAVE NO RECOURSE AGAINST YODLE OR ITS DESIGNEES FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OF CUSTOMER'S PROPRIETARY RIGHTS BY THIRD PARTIES OR FOR LOSS OR HARM DUE TO UNAUTHORIZED USE OF CUSTOMER'S ADS OR CUSTOMER CONTENT BY THIRD PARTIES. IN ANY EVENT, YODLE'S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO YODLE HEREUNDER WITHIN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

9.3 YOU ACKNOWLEDGE THAT THESE LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN AND THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF PORTIONS OF THIS AGREEMENT ARE FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.

10. Electronic Contract. This Agreement is an electronic contract that sets out the legally binding terms of the Services. Customer (or its authorized agent) indicates acceptance of this Agreement by clicking on the "ACCEPT" button or by utilizing the Services. This action creates an electronic signature that has the same legal force and effect as a handwritten signature on a written contract under any applicable law or regulation, and is equally binding. By clicking on the "ACCEPT" button or using the Services, Customer (or its authorized agent) acknowledges reading and accepting this Agreement and represents, warrants and agrees that Customer (or its authorized agent) has the power, authority and legal right to enter into this Agreement on behalf of Customer.

11. General. This Agreement (a) is governed by the laws of the State of New York, excluding its conflict of laws principles, (b) may be amended only in a writing signed by both parties or by Yodle e-mailing revised terms and conditions to Customer or posting revised terms and conditions in Customer's Yodle account, and (c) together with all terms and conditions incorporated by reference herein, constitutes the complete and entire expression of the agreement between the parties, and supersedes any and all other proposals, both oral and written, representations, warranties and agreements, whether written or oral, with respect to the subject matter hereof. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The exclusive venue for any dispute relating to this Agreement shall be New York County, New York, and Customer hereby waives any jurisdictional, venue or inconvenient forum objections thereto. CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL, TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR TO PURSUE OR PARTICIPATE IN ANY CLAIM AS A REPRESENTATIVE ACTION OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Prior to initiating any legal action, the initiating party shall give the other party at least 60 days written notice of its intent to file an action. Yodle will provide such notice by e-mail to Customer's e-mail address on file with Yodle, and Customer must provide such notice by e-mail to disputeresolution@yodle.com. During such notice period, the parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute arising under or relating to this Agreement shall finally be settled in a court of competent jurisdiction as set forth herein. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Yodle may assign this Agreement, in whole or in part, and the parties' rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns. These terms shall be severable and construed to the extent of their enforceability in light of the parties' mutual intent. Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section. For the avoidance of doubt, Yodle is an independent contractor of Customer and does not have the authority to make any commitment of any kind that is binding on Customer. Customer expressly agrees that any varying or additional terms contained in any purchase order or any other written notification or document issued by Customer in relation to the Services shall be of no effect and may be accepted for administrative convenience only. This Agreement is not exclusive to either party, which means that Yodle can provide the Services to any other customer and Customer can procure similar services from any other service provider.

12. Defined Terms. (1) "Ads" means advertisements created by Yodle with information about Customer's business. (2) "Commitment Period" for a Service means the portion of the Term during which Customer may not cancel that Service. (3) "Customer Content" means any content or information provided by Customer or submitted, posted, transmitted or made available by Customer through your use of the Services, including but not limited to Customer's brand features, text, the content of Customer's website that Yodle uses to create an adverSite and any third party logos (e.g., society memberships) . (4) "Go-Live Date" means the date that that Yodle begins to provide the applicable Service. (5) "Mirror Site" means a mirrored version of Customer's website with the same look and feel as, but a different URL than, Customer's website, which is only available if the Yodle Ads Service is purchased on a standalone basis. (6) "Term" has the meaning set forth in Paragraph 7.2. (7) "Yodle Distribution Network" means the network of advertising channels through which Yodle distributes the Ads, including (i) Google (the "Google Network"), (ii) all other advertising channels (the "Yodle Network") and (iii) all other forms of media, applications, and devices.