(Updated January 2015)
These Standard Terms of Service (“Terms of Service”) and the specific terms and conditions set forth herein govern the provision of ReputationDefender for Local Business services (the “Services”) by ReputationDefender LLC (the “Company”) to its customer (the “Customer” or “you”) and are incorporated into your Service Agreement as if set forth fully therein.
1. ADDITIONAL DETAILS OF PRODUCTS AND SERVICES
1.1 Collaborative Actions. Customer understands that certain reputation management activities require the timely and reasonably diligent cooperation of the Customer or Location. To the extent that our ability to complete certain activities or obtain favorable results is attributable to a lack of timely or reasonably diligent cooperation from Customer or Location, in such case, a failure to complete activities or obtain results shall not constitute a breach of this Agreement.
1.2 Permitted Use. Our Services may not be used for or in connection with any illegal activities or any activities that we deem improper for any reason whatsoever, in our sole discretion. We reserve the right to take preventative or corrective actions to protect the Company and its users from such illegal or improper activities.
2. LICENSE GRANT AND RESTRICTIONS
2.1 Proprietary Rights. All intellectual property rights in and to the Services and any user documentation related thereto are owned by ReputationDefender, including but not limited to patent, copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions.
2.2 License Grant. Subject to the terms and conditions of this Service Agreement, Company grants to Customer a limited, non-exclusive, nonsublicenseable, nontransferable, royalty-free license to use and access the Services.
2.3 License Restrictions. The licenses granted to you in this Service Agreement do not include any right to: (a damage, disable, or impair the Services (or the network(s) connected thereto; (b)to modify, reroute, create derivative works of, derive the source code of, reverse engineer, disassemble or tamper with Services, or attempt to do any of the foregoing; (c) take any action that imposes an unreasonably or disproportionately large burden on Company’s infrastructure; (d) violate any local, state, federal or other applicable consumer privacy regulations or applicable law or violate the rights of any third party (including, without limitation, rights of privacy or proprietary rights); (e) disable or circumvent any security features of the Company’s products or Services; or (f)cause or permit any third party to do any of the foregoing.
2.4 Reservation of Rights. All rights not expressly granted to you in these Terms of Service are reserved to Company. No additional rights whatsoever (including, without limitation, any implied licenses) are granted to Customer by implication, estoppel or otherwise. Company does not, by virtue of these Terms of Service or any Service Agreement or otherwise, acquire any ownership interest or rights in the Services, any Company trademarks or service marks, or any other Company technology, software (including third party technology and software) or intellectual property, except for the limited use and access rights described herein.
3. KIOSK SERVICES
If Client purchases a license to Kiosk Services or to a package of Services that expressly includes a Kiosk, then Client shall receive one Kiosk for each such license purchased which Client may use during the term of the Agreement. During the Agreement, the Kiosk shall remain the property of ReputationDefender and may be used by Client exclusively in connection with the Services. The Client shall treat the Kiosk with all reasonable care and shall use the Kiosk only for its designated purposes. At the end of the Agreement, provided that all fees have been paid to Company, title to the Kiosk shall transfer to Client. If a Kiosk is lost, stolen, destroyed or damaged, Client shall be required to pay an additional Kiosk Service Fee in order to receive the use of another Kiosk. In the event Client receives a defective or otherwise non-functioning Kiosk, Client shall promptly notify Company in writing of the same and shall ship the Kiosk where directed by Company to be repaired or replaced.
4. FEES, PAYMENT AND LIMITED GUARANTY
4.1 Fees. You agree to pay all fees specified in the Service Agreement. Unless otherwise provided in the Service Agreement, payment of the annual fee in full shall be due upon execution of the Service Agreement.
4.2 Credit Card Authorization By submitting your credit/debit card (“Bank Card”) data to the Company, you authorize the Company in its complete discretion to submit a financial transaction(s) to your issuing bank for settlement. You agree that once the Company has approved or declined your transaction, the Company has fully performed under the terms of this Agreement. You agree to contact the Company in the event that you desire to cancel any recurring charge, prior to the next billing cycle. Should you fail to contact The Company, you agree to indemnify and hold the Company harmless from any losses or damages that you suffer as a result of a recurring charge. the Company may be contacted at:. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact the Company prior to the next billing cycle. Upon proper notification, the Company, in its sole discretion may issue a credit to your Bank Card.
4.3 Taxes, Late Fees and Penalties. Customer shall be responsible for paying any applicable taxes related to this Agreement. If any payment is not received by its due date, Customer shall be assessed interest on the overdue amount at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5. WARRANTIES AND DISCLAIMERS
5.1 Mutual. Each of the parties represents and warrants that it has all necessary power to enter into and perform its obligations under this Agreement.
5.2 Company Warranties. The Company represents and warrants that: (a) the Services will be provided in a professional and workmanlike manner; and (b) the Services do not infringe upon the intellectual property rights of third parties.
5.3 Customer Warranties. You represent and warrant that: a) all information you provide to us is accurate, truthful and that you have the legal right to share such information with us; (b) you are authorized to provide us with any of the customer and/or user information (including email addresses) that you provide to us in connection with the Services (the ”Reviewer Information”); (c) that, for all Covered Entity Customers, you have obtained the consent of your patients/customers to receive email communications at the email address you provide to the Company; and (d) that our possession and/or use of the Reviewer Information on your behalf as permitted in this Agreement in connection with the Services will not violate any contract, statute, or regulation.
5.4 Customer Responsibility and passwords The Customer is responsible for all activity occurring under your Reputation for Business User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. To use the Services, Customer shall choose a password and a user name. Customer is entirely responsible for maintaining the confidentiality of the User password and account information and for controlling access to the Customer’s online account. Customer agrees to notify Company immediately of any unauthorized use of Customer’s account or any other breach of security. Company will not be liable for any loss that Customer may incur as a result of an unauthorized person or employee of Customer accessing or using Customer’s password or account, either with or without Customer’s knowledge.
5.5 Disclaimers. We do not guarantee or warrant that we will find or communicate to you every example or all examples of Internet review-based or social media content about you. EXCEPET AS SET FORTH SPECIFICALLY HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND WE SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. THIS DISCLAIMER SHALL BE ENFORCED TO THE EXTENT PERMITTED BY LAW IN THOSE JURISDICTIONS THAT MAY LIMIT THE EXCLUSION OF IMPLIED WARRANTIES.
6. LIMITATION OF LIABILITY
6.1 Limitation on Types of Damages. IN NO EVENT SHALL EITHER PARTY EVER BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, OR CLAIM FOR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR DAMAGE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES.
6.2 Limitation on Amount of Damages. The Company’s maximum liability arising out of or in any way connected to this Agreement shall not exceed the fees paid by you to us pursuant to the Agreement that is the subject of the claim during the twelve (12) months immediately preceding the claim.
7. TERM AND TERMINATION
7.1 Term of Engagement and Renewals. The initial term of each engagement shall begin on the date that we receive an executed agreement and shall continue for the period specified on the first page of the Agreement (the “Initial Term”). Unless otherwise specified on the applicable Agreement, each Agreement shall automatically renew for successive periods equal in duration to the Initial Term (each a “Renewal Term”) unless either party provides written notice to the other party of its election to terminate the Agreement prior to the end of the then-current term.
7.2 Termination for Breach. Either party may terminate this Agreement at any time upon written notice to the other if the other: (a) is in material or persistent breach of this Agreement and either that breach is incapable of remedy, or the breaching party fails to remedy a material breach within thirty (30) days after receiving written notice identifying a material breach and requiring it to remedy that breach; or (b) is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally.
7.3 Effect of Termination. Upon termination: (a) all rights granted to you under this Agreement, including your right to use the Services, shall cease; (b) the Company shall stop performing all Services; (c) you shall immediately pay to us any fees due under this Agreement thorough the date of termination and (d) we shall, upon receipt of a written request, destroy or return all Customer and/or Confidential Information. Sections 3 through 10 shall survive any termination or expiration of this Agreement.
8. CONFIDENTIALITY AND PRIVACY
8.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood as confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, without limitation, the techniques, methods, or strategies we use in connection with performing the Services as well as Customer Information that is designated as confidential. Confidential Information shall also include all Customer and/or patient information or material that you submit to the Company (“Customer Data”). However, Confidential Information shall not include any information that: (i) is provided by you and is published or otherwise disclosed, at our discretion, in connection with the Services; (ii) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (iii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (vi) is received from a third party without breach of any obligation owed to the Disclosing Party; or (v) was independently developed by the Receiving Party.
8.4 HIPAA Compliance. If you are a Covered Entity and indicate that status to us on your order form, then the Terms of our HIPAA Business Associate Addendum, found at www.reputationdefender.com/legal/business_associate_terms, shall be incorporated into this Agreement.
9. ARBITRATION, FORUM AND GOVERNING LAW
Any claim, dispute or controversy of whatever nature (“Claim”) arising out of or relating to this Agreement shall be resolved by final and binding arbitration. The arbitration shall be conducted by and submitted to a single arbitrator (“Arbitrator”) selected from and administered by the San Francisco, California office of JAMS (“JAMS”), in accordance with its then-existing Comprehensive Arbitration Rules & Procedures. The arbitration hearing shall be held in San Francisco, California. This Agreement shall be governed by and construed under the laws of the state of California, consistent with the Federal Arbitration Act, without reference to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Arbitrator(s) shall be authorized to award compensatory damages, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive damages. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, the parties understand that they are waiving certain rights and protections which may otherwise be available if a Claim were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding; and a right to invoke formal rules of procedure and evidence.
10. GENERAL PROVISIONS
10.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or indemnification). All notices shall be sent to the addresses set forth on the applicable Agreement, which may be updated from time to time upon written notice to the other party.
10.2 Export Compliance. The Services, other technology we may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit access to or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
10.3 External Forces. The Company shall be excused from performance hereunder to the extent that its performance is prevented, delayed or obstructed by causes beyond our reasonable control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, and/or natural disasters.
10.4 Waiver and Severability. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. If any provision of this Agreement is found to be contrary to law by a court of competent jurisdiction, such provision shall be of no force or effect; but the remainder of this Agreement shall continue in full force and effect. The parties shall meet and confer in good faith with respect to any provision found to be in contravention of the law in order to agree on a substitute provision.
10.5 Assignment. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties. Client may not assign any this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the Company.
10.6 Relationship of the Parties. Our relationship with you is that of an independent contractor, and neither party is an agent or partner of the other. You do not have, and will not represent to any third party that you have, the authority to act in the name or on behalf of or otherwise to bind us in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power).
10.7 Entire Agreement. These Terms of Service along with your Service Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
10.8 Amendments to Services Agreement. We reserve the right to modify, supplement, or replace the terms of these Terms of Service, effective prospectively upon posting at www.reputationdefender.com/legal/local_business_terms or notifying you otherwise. In the event that there is a material change to the terms of this Service Agreement and you object to the change, your sole remedy is to provide written notice (email to your account representative shall suffice) of your disagreement with the specific material change that is the subject of your objection ,and you shall continue to be bound by the terms of the Service Agreement as of the date of your purchase of services from the Company. Your continued use of the Services after you have received notice of any material changes to these Terms of Service shall indicate your assent to and intent to be bound by the modified Service Agreement.