These Terms and Conditions define the terms by which you and iSearch-By-City, LLC, a California limited liability company ("we" or "us"), may work together. These Terms and Conditions contain the complete terms and conditions pursuant to which we provide Services to subscribers.
You expressly agree that these Terms and Conditions are a valid and binding document, which is enforceable against you and/or your business in accordance with its terms, and that you were provided the opportunity to review the terms and consult with legal counsel before providing your consent to the terms set forth herein, which was voluntarily and freely given.
By signing our Advertising Contract, you agree to be bound by our terms and conditions set forth below.
Our Services are focused on developing your online Internet presence, and may include but will not be limited to the following:
- Building your website and your mobile website;
- Optimizing your web presence through search engine optimization for Yahoo, Google, and Bing generally;
- Optimizing your Google place page and map listing, as well as your Bing and Yahoo local listings;
- Shooting a video of your business and optimizing the video;
- Setting up a Facebook and Twitter account;
- Submitting links and adding listings to multiple online directories;
- Developing a web page for customer reviews
- Tracking clicks and phone calls;
- Setting up a special phone line for you and capturing information about the calls you receive, including phone call recording at your request;
- Pay per click advertising;
- Article submission; and
- Hosting and maintaining your website.
When we build a new website for you, you will have the opportunity to approve the layout and colors for the web pages. You acknowledge and agree that it is your responsibility in your sole and absolute discretion to provide feedback on the layout and colors and approve what we create based on your feedback. If we add a "contact us" form to your website, you agree and acknowledge that this form may be subject to receiving spam emails. You solely agree to assume all risk of loss or damage from receiving spam emails through any "contact us" form that we set up for you.
If we develop content for your web pages, we will develop that content based on research that we conduct on your industry and based on any materials or information that you provide to us about your business. You acknowledge and agree that we cannot ensure that any content that we develop is completely accurate, correct, or reliable and that it is your sole responsibility to review all content for accuracy, correctness, and reliability before the website goes live, to notify us of any errors, and to provide a timely approval to all proposed content. You solely agree to assume all risks of loss or damage in the event that you authorize us to take your web pages live without conducting a thorough review of the content and providing feedback to us on any issues with the content or errors.
If we add reviews, photographs, or any marks or logos that you have provided to us for your web pages, you acknowledge and agree that you are solely responsible for procuring all necessary releases, permissions, licenses, or assignments authorizing your use of such materials on your web pages. You solely agree to assume all risks of loss or damage arising from the use of reviews, photographs, marks or logos on your web pages without obtaining the appropriate releases, permissions, licenses, or assignments.
If we set up a special phone line for you, you acknowledge and agree that you may not display the phone number that we provide to you on other web pages that we did not develop; that you may not distribute the phone number to third parties; and that your right to use any such phone number will expire upon the expiration or termination of your subscription.
If we use any domains with your business that you did not purchase separately, you acknowledge and agree that your right to use any such domains will expire upon the expiration or termination of your subscription.
You have the option to choose to pursue either an aggressive or a less aggressive search engine optimization ("SEO") strategy at your sole and absolute discretion. If you elect to pursue the more aggressive strategy, meaning that you elect to add city pages on your website, you acknowledge and agree that any such strategy may stop achieving the same level of results on any search engine at any time based on the algorithms, policies, and procedure then in-effect by a particular search engine. You expressly agree to assume all risks of damage or loss from adopting a more aggressive SEO strategy.
You have the option to choose to host your own website or to allow us to host your website on your behalf, except that you will be required to host your own website if you have a domain-based email address. If you host your own website, you acknowledge and agree that you will be solely responsible for paying all fees necessary to maintain your domain and hosting services, and for ensuring that no third party obtains access to your website and/or makes modifications to that website that impair its performance in any way. If you permit a third party to make modifications to your website or you make modifications yourself to your website, you expressly agree to assume all risks of damage or loss that may arise from your decision.
If you elect for us to host your website, then you acknowledge and agree that you will be solely responsible for complying at all times with the terms of the then-applicable Acceptable Use Policy, which is currently made available at http://www.rackspace.com/cloud/legal/aup/.
You acknowledge and agree that you are not relying on any statement or representation made by a sales representative about the Services, which is not expressly stated in the above description of our Services.
Initial Set-Up and Subscription Fees
You agree to pay our initial set up fee and our annual subscription fee, as set forth in our Advertising Contract. All payments are non-refundable. The set-up fee will be due when you subscribe to our Services and must be paid in full prior to the launch of your website. The annual subscription fee is payable in twelve (12) equal monthly installment payments, and the first installment payment will be due and payable on or before the first to occur of (a) the date on which we first bill you following the launch of your website or (b) ninety (90) days following the effective date of our Advertising Contract with you (the "Start Date"). Each subsequent installment payment will be due on each monthly anniversary of the Start Date. Upon expiration of the annual subscription, you may renew our Advertising Contract for an additional one year period at our then-current rates (the "Renewal Period") unless otherwise terminated by either of us upon thirty (30) days prior written notice. Upon expiration of any Renewal Period, our Advertising Contract may be renewed for successive Renewal Periods at our then current rates unless otherwise terminated upon thirty (30) days prior written notice. If the event that the Advertising Contract is neither renewed for an additional Renewal Period nor terminated by either of us, then the subscription will become automatically renewable as a month to month subscription at our then-current rates, which either of us may terminate upon thirty (30) days prior written notice, and monthly payments will be due one month in advance on the monthly anniversary of the Start Date. In the event any installment payment is late and not received within seventy (70) days following the due date, then your subscription may be subject to cancellation for nonpayment, in which case we may immediately remove all advertising materials posted to the Web on your behalf. If, following any removal, you wish to re-establish a subscription with us, then you agree to pay (a) the balance of your annual subscription or any past due monthly subscription payments and (b) a re-establishment fee in the amount of fifty percent (50%) of the initial set-up fee.
If you fail to make any payment within forty-five (45) days following the invoice date, you will incur interest at a rate of One and One-half Percent (1 1/2%) on the past due balance. In the event that you have a past due balance at any time, we reserve the right to to send the outstanding balance of any annual subscription or any outstanding monthly subscription payments to collections. In such case, you will be responsible in full for the payment of all collection costs, including but not limited to any attorney's fees incurred in the collection. If you host your own website and become more than forty-five (45) days past due on your balance, we reserve the right to order you to cease and desist any further display of the website files we created on the Internet and to charge you an additional penalty of Twenty-Five Dollars ($25.00) per day for each day thereafter that you continue displaying the website files on the Internet while your balance remains past due. For the avoidance of doubt, you will remain responsible for payment of the outstanding balance of your subscription fee, regardless of whether or not your website files are displayed on the Internet.
In the event your subscription is suspended at any time due to a violation of the then-applicable Acceptable Use Policy and you are reinstated, you agree to pay a reasonable reinstatement fee, which will not exceed One Hundred Fifty Dollars ($150.00).
Following expiration of the annual subscription, if at any time you seek to terminate our services but wish to continue using the website files we designed for you, we will grant to you an option to license your website files on an ongoing basis upon the payment of an additional one-time license fee. The license fee will be determined using the following calculation:
- If you exercise your option to license your website files at any time during the first twelve (12) Renewal Periods, then your license fee will be calculated at seventy percent (70%) of the total cost of our initial set up fee.
- If you exercise your option to license your website files at any time following the expiration of twelve (12) Renewal Periods but prior to the expiration of twenty-four (24) Renewal Periods, then your license fee will be calculated at thirty-five percent (35%) of the total cost of our initial set up fee.
- If you exercise your option to license your website files at any time following the expiration of twenty-four (24) Renewal Periods, then we will waive the license fee.
For the avoidance of doubt, any license that we grant to you will authorize your continued use of the website files only and will specifically exclude (a) your continued use of any citypage content that was developed on your behalf (b) any rights to use our SEO strategy, including but not limited to our city pages, and (c) the rights to re-use any photo displayed on the web pages that you did not provide as part of the Content, except that you may continue to display any such photo on the web pages at a single domain.
Pay-Per-Click Advertising Fees
If you elect for us to provide pay-per-click advertising services on your behalf, then you agree to pay the agreed-upon monthly advertising budget in advance of the applicable calendar month. We may also charge you a fee for managing your pay-per-click account, which fee shall not exceed thirty percent (30%) of the agreed upon monthly advertising budget for your campaign. Any such management fee shall also be paid in advance of the applicable calendar month.
The term of your subscription will commence as of the Start Date and expire 12 months following the Start Date ("Term"). The subscription shall be automatically renewable thereafter for successive periods of one month each ("Renewal Periods"), unless cancelled by either of us on 15 days' prior written notice. In the event of a material breach by either of us, then the non-breaching party may cancel the subscription upon 15 days' prior written notice and failure to cure; provided that, however, we may automatically cancel your subscription without prior notice in the event of your violation of the Acceptable Use Policy then in-effect. Upon expiration or cancellation, you agree to immediately pay us all outstanding fees. The following terms and conditions shall survive any expiration or cancellation of your subscription until such time as they are fully exhausted: Compensation, Term, Design Credit, Intellectual property, Indemnification, Waiver and Release, Consequential Damages; Limitation of Liability, Entire Understanding, Governing Law; Dispute Resolution, Severance, Assignment, Modification, and Waiver.
During the Term of your subscription or during any Renewal Period, you expressly authorize us to act as your authorized representative and to make all submissions on your behalf to online directories and search engines.
You agree that you will be available and responsive, and will comply on a timely basis with any requests for assistance that we make pursuant to the performance of the Services. Any failure by you to comply with the terms of this Section shall constitute a material breach of these Terms and Conditions.
For the Term and any Renewal Periods, you agree and acknowledge to maintain at all times and not modify or attempt to modify in any way the design credit notice and link to our website at the bottom right-hand corner of your website. You agree and acknowledge that this obligation will survive the expiration or cancellation of your subscription if you exercise your option to license the Intellectual Property.
We or our licensors, if any, will own all right, title, and interest in all websites, artwork, videos, and any other materials developed on your behalf pursuant to the performance of the Services ("Intellectual Property"). We expressly grant to you a non-exclusive worldwide license to use and display the Intellectual Property on the Internet during the Term of your subscription and any Renewal Periods. In the event that you provide any logos, photos, videos, reviews, or other materials ("Content") to us for use on the Internet, you grant to us a non-exclusive worldwide license to use and display the Content (a) to market and promote you on the Web during the Term of your subscription and any Renewal Periods, and (b) in our online portfolio in conjunction with the Intellectual Property to market and promote our Services to potential new customers. Upon expiration or cancellation of your subscription for any reason, your right to use the Intellectual Property and our right to use the Content shall immediately cease and terminate and we shall remove all Intellectual Property and Content from the Web; provided that, however, if you exercise your option to license the Intellectual Property, we will grant to you upon the payment of the one-time license fee, a perpetual, non-transferable, nonexclusive license to use and display the applicable Intellectual Property on the Internet at a single domain.
You agree to indemnify, defend, and hold harmless us and our officers, members and managers, employees, agents, representatives, and independent contractors from any and all liabilities, losses, damages, fines, judgments, settlements, or expenses (including but not limited to reasonable attorneys fees) arising out of or in connection with (a) a negligent or intentional act or omission, including any failure to perform any obligation set forth pursuant to these Terms and Conditions; (b) furnishing Content to use on the Internet which is inaccurate, infringes or violates any third party's rights, misstates your relationship with any third party, or is provided without the appropriate release or authorization; or (c) a breach of these Terms and Conditions.
Waiver and Release
To the maximum extent permitted by applicable law, you hereby release and waive all claims against us and our officers, members, managers, employees, agents, representatives, and independent contractors from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature arising from or in any way related to the Services or this Agreement. If applicable, you waive your rights under California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true, and accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights which you may have had under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
Compliance with Laws
You are solely responsible for your compliance with all applicable state and federal laws. Some states do not allow phone recording without both parties' prior consent, so please verify the laws in the states where both callers are located prior to recording any call. If you have questions about the laws applicable to recording calls, please consult with legal counsel prior to launching any recording program.
Consequential Damages; Limitation of Liability
In no event will we be liable for any incidental, consequential, indirect, special, or punitive damages, or lost business or profits, even if we have been advised of the possibility thereof. Our liability under these Terms and Conditions shall be limited to one calendar month's prorated installation of the subscription fee during the Term, or the monthly subscription fee during the Renewal Period.
You represent and warrant (a) that the person agreeing to these Terms and Conditions is authorized to agree to them on your behalf; (b) that in entering into subscription, you have not relied on any previous oral or implied representations, inducements or understandings of any kind or nature whatsoever, which have not been set forth in these Terms and Conditions; (c) that you will not be liable for any future representations, inducements, or understandings which are not set forth herein; (d) that the Content, if any, that you furnish to us or ask us to upload to your web pages does not infringe or violate the rights of any third party, and that you have obtained any third party assignments, licenses, or releases required to authorize us to use the Content as contemplated herein; (e) that you are not relying on any representations or promises made by any sales representatives on our behalf which are not expressly stated in the Terms and Conditions; and (f) that, to the extent applicable, you will comply at all times with the terms of the terms of the Acceptable Use Policy then in effect for our customers at http://www.rackspace.com/cloud/legal/aup/.
WE EXPRESSLY DISCLAIM ALL WARRANTIES, CONDITIONS, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. USE AND RELIANCE ON THE SERVICES IS AT YOUR OWN RISK. WE EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS OR STATEMENTS THAT MAY BE MADE BY A SALES REPRESENTATIVE, WHICH ARE NOT EXPRESSLY PROVIDED FOR BY THESE TERMS AND CONDITIONS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR REPRESENTATIONS THAT THE INFORMATION OR TEXT YOU SUPPLY TO US OR THE WEB PAGES WE CREATE WILL BE ACCURATE AND CORRECT; THAT THE SERVICES WILL ACHIEVE THE RESULTS, PAGE RANKING, OR PLACEMENT THAT YOU ARE SEEKING, EITHER ON A SHORT-TERM OR LONG-TERM BASIS; NOR CAN WE ENSURE THAT THE ANY WEB PAGES THAT WE HOST WILL BE HOSTED ON A CONTINUOUS AND UNINTERRUPTED BASIS. WE CANNOT WARRANT ANY SPECIFIC RANK RESULT FOR A KEYWORD ON A SEARCH ENGINE, AND IF YOUR WEBSITE IS ALREADY UNDER SEARCH ENGINE PENALTIES, WE CANNOT GUARANTEE ANY SPECIFIC RESULTS. WE WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO UTILIZE GOOD SEO PROCESSES TO IMPROVE RANK RESULTS OF KEYWORDS OVER TIME AND TO ACHIEVE THE BEST POSSIBLE RESULTS FOR YOUR WEBSITE, REGARDLESS OF THE CIRCUMSTANCES THEN IN EFFECT FOR SUCH WEBSITE. IF YOU ELECT A MORE AGGRESSIVE SEO STRATEGY, WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY FOR ANY SUDDEN CHANGES IN YOUR RESULTS AS A RESULT OF CHANGES IN THE APPLICABLE SEARCH ENGINE ALGORITHM OR ANY OTHER POLICY CHANGES. IF YOU ELECT FOR US TO HOST YOUR WEBSITE, THEN WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY FOR HOSTING BEING UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
You agree that these Terms and Conditions contain our full, complete, and entire understanding with respect to the subject matter contained herein, and supersedes all prior agreements, understandings, and representations, whether written or oral, including but not limited to any statements or representations that may be made by any sales representative whom you speak with at any time. You agree that there will be no restrictions, promises, covenants, or understandings other than those expressly set forth herein, and that no rights or duties on the part of either party are to be implied or inferred beyond those expressly provided for.
Governing Law; Dispute Resolution
These Terms and Conditions, your subscription, and any Renewal Period shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law principles. All disputes arising hereunder shall be submitted to binding arbitration under the Commercial Rules of the American Arbitration Association in Los Angeles, CA by one arbitrator mutually agreed upon by you and us in accordance with the aforementioned Rules. The costs of arbitration, including administrative and arbitrators' fees, shall be shared equally by each of us. The arbitration award shall be final and each of us shall comply in good faith to the entry of the arbitrator's award in any court having jurisdiction. If judicial enforcement or review is sought, then the prevailing party shall be entitled to costs and reasonable attorney's fees. All claims that you bring against us must be resolved in accordance with this Section. All claims filed or brought against us contrary to the terms of this Section shall be considered improperly filed. Should you file a claim contrary to this Section, you agree that we may recover attorneys' fees and costs for the improperly filed claim, provided that we have notified you in writing of the issue and you have failed to properly withdraw the claim.
You agree that if any provision of these Terms and Conditions is held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not be affected by such holding. You agree that we will negotiate and amend in good faith any such provision in a manner consistent with our intentions, if any invalid or unenforceable provision affects either party's consideration under these Terms and Conditions.
You agree that your subscription shall automatically be assigned in the event of a merger or acquisition of all or substantially all of either party's business assets and be binding upon the successor business entity. Any unauthorized assignment will be void and unenforceable. Your subscription, and all of the terms, conditions, covenants, and agreements set forth herein, shall inure to the benefit of any be binding on both parties' successors and permitted assigns.
We may modify our standard Terms and Conditions at any time, but you will only be bound by our amended Terms and Conditions if you expressly accept them when you enter into a new subscription with us.
No waiver by us of any breach of these Terms and Conditions, no matter how long continuing or how often repeated, shall be deemed a waiver of any subsequent breach thereof, nor shall any delay or omission on the part of either of us to exercise any right, power, or privilege hereunder be deemed a waiver of any such right, power, or privilege.
These Terms and Conditions are effective as of the 15th of May, 2014.