General Terms & Conditions

ZIPLOCAL TERMS AND CONDITIONS
DIGITAL SERVICES, PRINT AND ONLINE ADVERTISING

1– General Terms and Conditions

1.1 Binding Agreement. The attached Order Form (the “Order”) and these Terms and Conditions (excepting only those Terms and Conditions herein specifically excluded) constitute a binding contract (this “Agreement”) between ZipLocal LP (“ZipLocal”) and the customer listed on the Order (the “Customer”) upon signing by Customer (in writing, electronically, or by voice recognition) and acceptance by ZipLocal management.

THESE TERMS AND CONDITIONS APPLY TO PRINT ADVERTISING, ONLINE ADVERTISING AND DIGITAL SERVICES.

1.2. Services. ZipLocal will provide the Customer with products and services described in the Order (the “Services”). The Customer will cooperate with ZipLocal as required for ZipLocal to provide the Services. The Services shall include posting of Customer Content and other information about the Customer on Customer’s accounts on social media, such as Facebook and Twitter (“Customer’s Social Media Accounts”) and control of administrative functions therefor.

1.3. Definitions. “You” or “Customer” means the person and/or entity entering into this Agreement. “ZipLocal” means ZipLocal, LP and ZipLocal’s Vendors. “ZipLocal Vendors” shall mean all of the vendors and suppliers of ZipLocal, including without limitation Marchex Sales, Inc. and its suppliers. “Customer Information” means all the information provided by you in the attached Order. “Advertising” or “Ad” means the text, format and artwork you and ZipLocal develop for use in Print or Online Advertising. “Proof” means a draft Advertising created by ZipLocal for Customer. “Call Tracking Number” or “CTN” means a unique local, long distance or toll-free phone number assigned to your Advertising, which will replace and be redirected to your regular business telephone number. “Digital Services” or “ZipLocal’s Services” means any digital services offered by ZipLocal and referred to on this Order Form. “Online Advertising” means advertising services provided by ZipLocal through an online advertising media selected for your Advertising, as described on the Order Form. “Print Advertising” means advertising services provided by ZipLocal through the printed directories, both in hard copy and electronically printed online, you select for your Advertising, as described on the Order Form. “Display Print Advertising” means a Print Advertising which contains design elements created by ZipLocal for publication through the printed directories selected on the Order From. “Parties” means Customer and ZipLocal. “Print Cycle” means the period of time from the publication date for a printed directory to the date that an updated printed directory is published. “Systems” shall mean ZipLocal’s online client business center (the “Systems”). “Qualified Calls” means a call shall have been received through the Customer CTN number(s) and is a minimum of 30 seconds in length; duplicate calls received within a 72 hour period and short calls as determined by Publisher shall be removed from the count of Qualified Calls. “Cost Per Call” means a charge per each Qualified Call as stated in the Order. “SurePrint” means the ZipLocal advertising products used for processing Print Advertising.

1.4. Term. Except to the extent specified in this Order Form: i) for Online Advertising and Digital Services, the Term of each Order Form shall start with the date at which the Order Form is signed (in writing, electronically or by voice recognition) and shall continue for 12 months from the date at which the Online Advertising or Digital Services start, as provided by ZipLocal (the “Initial Term”); ii) for Print Advertising, the Term of each Order Form shall start with the date at which the Order Form is signed (in writing, electronically or by voice recognition) and shall continue until the end of the Print Cycle for the Print Advertising. AT THE END OF THE INITIAL TERM, FOR ONLINE ADVERTISING AND ALL DIGITAL SERVICES, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE YEAR PERIODS UNLESS THIS AGREEMENT IS TERMINATED EARLIER UNDER THE TERMS OF THIS AGREEMENT, OR CUSTOMER GIVES ZIPLOCAL AT LEAST 30 DAYS’ PRIOR WRITTEN NOTICE OF NON-RENEWAL. SUCH NOTICE SHALL BE MAILED OR HAND-DELIVERED TO ZIPLOCAL’S CORPORATE OFFICE TO THE ATTENTION OF CUSTOMER SERVICE AT 1712 SOUTH EAST BAY BLVD, BUILDING 5, SUITE 103, PROVO, UT 84606.

1.5. RIGHT TO RESCIND ORDER. Unless otherwise prescribed by the State law in which the Customer is located, the Customer may rescind its agreement to purchase goods or services from ZipLocal, provided it gives notice of rescission to ZipLocal within the time provided below (“Rescission Period”). If the Customer has purchased an advertisement in a print or an electronic directory, then the Customer may rescind the sale no later than midnight of the third business day after the Customer has received the proof of the purchased advertisement and the proof has been approved as provided in this Agreement. If the Customer has only purchased a listing in a print or electronic directory, then the Customer may rescind the sale no later than midnight of the third business day after the receipt of the Order, signed by the Customer (whether in writing, electronically, or by voice signature), which Order contains a copy of the listing as it will appear in the published directory. If the Customer has purchased a digital product (such as Search Engine Optimization or Mobile Text Marketing services), which services are unrelated to ZipLocal’s directory products, then the Customer may rescind the sale no later than midnight of the third business day after ZipLocal has provided the Customer notice of the requested Customer information necessary to commence the purchased service(s). To cancel this Order, the Customer must provide a signed written notice of cancellation which must be received by ZipLocal prior to the expiration of the Cancellation Period.

1.6 ADDITIONAL RIGHT TO CANCEL ORDER. In addition to the right to rescind the Order as set forth in the preceding paragraph, Customer also may cancel this Order by giving ZipLocal written notice (“Cancellation Notice”) no later than two weeks after the Rescission Period has lapsed (“Cancellation Period”), provided that at the time such Cancellation Notice is given, Customer pays to ZipLocal as liquidated damages an amount equal to one third of the total fees as stated on the Order Form. To be effective such Cancellation Notice and payment must be received by ZipLocal within such two week Cancellation Period. If Customer does not provide ZipLocal with a Cancellation Notice within the Cancellation Period as provided in this paragraph 1.6, no cancellation by Customer and no refunds will be allowed.

1.7 TERMINATION OF AGREEMENT. Disconnection of the Customer’s phone, discontinuation of the Customer’s business, or sale of the Customer’s business does not constitute termination of the Agreement. Without prejudice to any of ZipLocal’s rights at law or equity, ZipLocal may terminate this Agreement with no prior notice if Customer fails to make a payment to ZipLocal as and when required, if Customer fails to comply with any obligation in this Agreement, or if any of the Customer’s representations or warranties is or becomes untrue. ZipLocal may also terminate this Agreement for convenience at any time by written notice to Customer. If ZipLocal terminates this Agreement for convenience, its sole liability will be to return a pro rata portion of any payments made by Customer in connection with Services that would have been provided to the Customer during the remainder of the then-current term. In case of technical difficulties or temporary interruption of Services, the terms of this Agreement shall remain unaffected and shall not be deemed a termination.

1.8. Payment. 1.8. Customer will pay ZipLocal the amount due on the Order Form, together with all state and local taxes attributable thereto. After the Initial Term, ZipLocal may change the rate it charges for Services from time-to-time in accordance with its Policies described herein. Customer will also pay ZipLocal: (a) a returned check fee in the amount of $30.00 for each check or draft returned unpaid, (b) interest on any amounts not paid when due, plus the foregoing returned check fee/unpaid charge at the rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, until paid in full, compounded weekly. If Customer arranges for payment through credit card or electronic funds transfer, Customer must keep such information current with ZipLocal at all times. ZipLocal may conduct an initial credit inquiry on Customer and may conduct additional inquiries in the number and frequency it deems appropriate for as long as any sums are owed to ZipLocal under the Order or this Agreement. Customer authorizes any third party to convey any or all information requested by Customer pertaining to the financial status or condition of Customer. ZipLocal may use such financial information as it deems appropriate in making decisions whether to extend credit to Customer from time to time; however, ZipLocal reserves the right to extend credit and approve any payment program as it may determine, in its sole discretion. ZipLocal may require advanced payment in full prior to the provision of Services. In the event the Customer’s business is sold to a purchaser of 50% or more of the ownership interest in such business, or is merged, closed, transferred, liquidated or otherwise ceases operation in its current form, Customer guarantees payment to ZipLocal of the amounts due under the Order Form and/or this Agreement immediately upon the occurrence of any such event. No acceptance by ZipLocal of any payment or instrument marked with any restrictive or other limited or conditioned endorsement will be deemed a waiver of any rights ZipLocal may have, nor shall it be effective to limit or discount the amount owed by Customer under the Order or this Agreement. In the event any such restrictive, limited or conditional endorsement is marked on any payment, to the extent of inconsistency between such restrictive, limited or conditioned endorsement and the terms of the Order or this Agreement, the terms of the Order or this Agreement shall control.

1.9. Non-Cash Methods of Payment. ZipLocal, at its sole discretion, may elect to receive goods and services or other non-cash methods (referred to as “Trade”) from the Customer in lieu of cash payments as a means for ZipLocal to receive compensation for its Services. In such event, ZipLocal will set the cash value of the Trade and Customer shall be deemed to agree to such cash value unless Customer gives written notice to ZipLocal that Customer rejects the Trade in lieu of cash payments within 48 hours of receiving notice of the value set by ZipLocal. The Customer understands that all amounts shown as shall not carry an expiration date. ZipLocal reserves the right to convert into cash equivalent any Trade balance unused by ZipLocal.

1.10. Delinquent Accounts. If Customer fails to pay any charge within ten (10) calendar days after payment is due, Customer shall be deemed to be delinquent and in breach of this Agreement. Upon delinquency, ZipLocal may, in its sole discretion, apply all Customer payments first to any accrued late charges or interest, second, to the oldest charges due in Customer’s account until the account is current and all related charges or fees are paid in full. Upon delinquency, ZipLocal shall be entitled to cancel any or all services and terminate this Agreement due to the default of Customer. In addition, and upon delinquency, ZipLocal may, at its option, i) continue services for the term of the Order and collect the entire amount due under the Order or any other agreement with the Customer, ii) charge the delinquent balance to the electronic funds transfer account or credit card account previously provided by Customer, iii) take such action(s) as it deems necessary to recover as damages the total of all amounts due, together with related interest, charges and fees, including attorney’s fees, under the Order, and any other agreements with Customer, and/or iv) terminate the Agreement and all services related thereto, and recover as liquidated damages the total past due balance on the account and, in addition, an amount equal to seventy percent (70%) of the total remaining unpaid balance under the Order and this Agreement. ZipLocal and Customer agree that ZipLocal will be damaged by Customer’s default and by termination under this paragraph, and further agree that it is extremely difficult to ascertain or calculate and prove the amount of such anticipated damage; therefore, the parties agree that the foregoing is a reasonable estimate of such damages is and shall be the liquidated sum agreed to by the parties. The parties further agree that the amount set forth in this paragraph is an estimate of actual damages which will be sustained or incurred by ZipLocal, and is not intended to represent nor does it represent a penalty to Customer.

Nothing herein shall operate or be construed to prevent ZipLocal from engaging a collection service and/or attorneys to recover money owed by the customer. In the event ZipLocal sends a Customer’s account to a collection agency and/or seeks legal redress, Customer shall pay ZipLocal’s reasonable attorney’s fees, court costs, service costs, and collection fees in addition to the outstanding amount due. Should an account become delinquent, any and all discounts and special promotions which may have been extended to Customer will be void and the full-published rates for all Services contained in the Order shall replace those shown on the Order. If Customer’s account becomes delinquent, Customer’s account on the Business Center, Online Advertising and Digital Services may be suspended and Customer may not have further access to its data therein, at ZipLocal’s sole discretion. In addition to those rights, if the Customer’s account becomes delinquent, ZipLocal shall have the right to suspend and redirect the Customer’s CTN Number. This suspension shall be removed, at ZipLocal’s discretion when the account becomes current.

1.11. Customer and User Content. Customer will provide to ZipLocal various content in connection with the System and Services (the “Customer Content”) including but not limited to: (a) the Customer Information, (b) the Customer’s listing information (i.e. name, address, telephone number), trademarks, service marks, QR code (c) all information, advertising and marketing materials, data, links and content entered into the Systems by or for the Customer, or otherwise provided to ZipLocal, (d) any information and content on the Customer’s Social Media Accounts and (e) other content owned or licensed by the Customer for use in the Services, including any oral or written representations that Customer or Customer’s affiliates may make. The Customer must ensure that the Customer Content is accurate and up-to-date, and must deliver the Customer Content in accordance with the specifications and schedules established by ZipLocal from time to time. The Customer acknowledges and agrees that its failure to comply with such specifications and schedules may cause the public distribution, display and/or performance of the Services (collectively the “Publication”) to be delayed or refused, and ZipLocal shall have no liability for such delay or refusal. Customer expressly acknowledges that Customer is wholly responsible for all Customer Content, and ZipLocal is not responsible or liable in any manner for any Customer Content provided. The Customer hereby grants ZipLocal access to and control of administrative functions for its Social Media Accounts and a world-wide, non-exclusive, royalty-free, fully sub-licensable license to copy, publicly display, transmit, telecommunicate, publish, use and distribute the Customer Content including but not limited to, the Customer’s trademarks and the copyright elements in the design elements of those trademarks (collectively, the “Customer Marks”), including posting Customer Content on Customer’s Social Media Accounts and on other third parties’ websites, materials and other property, and in any form or media now known or hereafter developed in any compilation, order, or format and any revisions thereto, and in any and all languages. ZipLocal is also not responsible or liable in any manner for third party applications, software or content posted on the Systems or in connection with the Services, whether posted or caused by the Customer, by other users (whether or not authorized), by third parties or by any of the equipment or programming associated with or utilized in the System or Services. ZipLocal does not control and is not responsible for what users post, transmit or share and is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content the Customer may encounter in connection with any content. ZipLocal is not responsible for the conduct, whether online or offline, of any user of ZipLocal’s Services.

1.12. Content Modification, etc. ZipLocal may review, select from, revise, reject, manipulate and format the Customer Content as necessary or desirable for the normal functioning of the Systems or Services, for posting on Customer’s Social Media Accounts and other third parties’ websites, and for any other reason including unsatisfactory technical quality, inconsistency with ZipLocal policies, and non-compliance with the terms of this Agreement, and such revised Customer Content shall be included in the definition of “Customer Content” for purposes of this Agreement. Regardless of the extent to which ZipLocal modifies any Customer Content, ZipLocal will have no liability whatsoever to any third party regarding the Customer Content, and Customer will be solely liable for that content. The Customer is solely responsible for protecting the Customer Content and all its intellectual property.

1.13. Intellectual Property. As between Customer and ZipLocal, ZipLocal owns all right, title and interest in the Systems, the Data, the Work Product, all modifications, additions, and all intellectual property to the foregoing. In this Agreement, “Work Product” means all work product created in connection with the Services, including text, graphics, images, illustrations, artwork, maps, photographs, layouts, fonts, visual and audio recordings, websites, software, codes, HTML, and other content in whatever form or media created or procured for the Services but does not include the Customer Content.

1.14. Customer Warranties and Representations. Customer warrants and represents to ZipLocal that: (a) Customer owns the Customer Content and Customer Marks, or has all necessary authorizations and licenses to grant the licenses in this Agreement; (b) the copying, distribution and other use of the Customer Content and Customer Marks as permitted or contemplated by this Agreement and ZipLocal’s exercise of any rights granted under this Agreement will not constitute an infringement or other violation of any copyright, trademark, or other proprietary or intellectual property right of any third party; (c) ZipLocal will not be required to obtain permission from, or make any payments to, anyone in connection with the exercise of any of the rights granted under this Agreement; (d) the Customer is authorized to advertise all businesses, services, and products described in the Order or appearing in the Advertising or in the Digital Services; (e) the Customer is in full compliance with all laws, rules and regulations applicable to the business, products and services described in the Order, appearing in the Advertising or in the Digital Services (including but not limited to permit and licensing requirements); (f) Customer Content will not contain any obscene or defamatory matter or violate any right of privacy or publicity; and (g) any price or discount referred to in an Advertising or in the Digital Services shall be accurate and shall remain in effect until the end of Term as defined herein.

1.15. Indemnification by Customer. The Customer agrees on behalf of itself, its employees, agents and assigns to indemnify, defend, and hold ZipLocal and ZipLocal’s partners, officers, affiliates, employees and agents (collectively for purposes of this paragraph “ZipLocal”) harmless from and against any and all liabilities, actions, injuries, damages, awards, settlements, losses, claims, costs, and expenses, including reasonable attorneys’ fees (together with any appellate counsel fees and costs, if any) and costs of investigation due to: (a) any claim by a third party relating to the Customer Content, or the Customer Marks, including infringement of any third party’s intellectual property rights or unauthorized use of any material, name, image or likeness, (b) claims for false, deceptive, illegal, or misleading advertising and claims related to the Customer’s product warranties or performance, (c) any other actions of the Customer which give rise to any other liability at law or in equity, (d) any liability related to the content, graphical norms or physical appearance of the Customer Content or the Customer Marks, (e) any breach of the Customer’s warranties, representations or covenants in this Agreement, and (f) the Customer’s products, services, acts, omissions, failures, or refusals to perform, negligence, or willful misconduct. ZipLocal may take all reasonable actions to enforce its rights hereunder against Customer.

1.16. POLICIES. ZIPLOCAL RESERVES THE RIGHT TO ESTABLISH AND REVISE ITS STANDARDS, POLICIES, PRACTICES, SPECIFICATIONS AND TECHNICAL REQUIREMENTS AND SCHEDULES WITH RESPECT TO ANY AND ALL OF ITS PRINT, ONLINE ADVERTISING PRODUCTS AND DIGITAL SERVICES, INCLUDING BUT NOT LIMITED TO NAMES, HEADINGS, LISTINGS, NAVIGATION AND OPERATIONAL SYSTEMS, INDICES, MAPS, DIRECTIONS, LINKS, SCOPE, SIZE, DISTRIBUTION, LIFECYCLE, AND PRICING (COLLECTIVELY REFERRED TO HEREIN AS “ZIPLOCAL POLICIES”). ALL SERVICES SHALL COMPLY WITH ZIPLOCAL POLICIES AS DETERMINED IN ZIPLOCAL’S DISCRETION; AND A CHANGE IN ZIPLOCAL POLICIES SHALL NOT ENTITLE THE CUSTOMER TO A REDUCTION IN PRICE.

1.17. LIMITATION OF LIABILITY. CUSTOMER ACKNOWLEDGES THAT: (A) THIS IS A COMMERCIAL TRANSACTION; (B) ALTERNATIVE AND COMPETING SERVICES ARE AVAILABLE; AND (C) OCCASIONAL DISPUTES RELATED TO THE SERVICES MAY ARISE AND ANY POTENTIAL HARM THEREFROM IS SPECULATIVE. THEREFORE, IN NO EVENT SHALL ZIPLOCAL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS, (B) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR GOODWILL) EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND CUSTOMER HEREBY KNOWINGLY AND EXPRESSLY WAIVES THE SAME; (C) FOR ANY MATTER BEYOND SUCH PARTIY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO ZIPLOCAL FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, ZIPLOCAL SHALL HAVE NO LIABILITY WHATSOEVER TO THE CUSTOMER FOR ANY FAILURE OF THE CUSTOMER TO COMPLY WITH APPLICABLE LAW OR REGULATION. CUSTOMER USES THE SYSTEMS, SERVICES AND DATA AT THE CUSTOMER’S OWN RISK. ZIPLOCAL SHALL NOT BE LIABLE FOR ANY LOSS IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SYSTEMS, SERVICES OR DATA. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE REMEDIES SET FORTH IN THIS PARAGRAPH SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES.

1.18. No Representations/Warranties. The Systems, the Services and the Data (as defined subsequently herein) are provided “as is” and “as available”. ZipLocal disclaims all terms, conditions, guarantees, representations and warranties (express, implied, statutory and otherwise), in respect of the Systems, the Services and the Data, including but not limited to those of merchantability, non-infringement, title, quality and fitness for a particular purpose. ZipLocal makes no representation, warranty or guarantee, expressed or implied, with regard to the success, derived benefits, or responses that Customer may have associated with the Services. ZipLocal is not responsible for errors or omissions in the Customer Content, any information provided by the Customer or its representatives, or information provided by public sources or other directories, which ZipLocal uses in connection with the Services, and errors or omissions in customer information provided in third party databases and listings. CUSTOMER UNDERSTANDS AND AGREES THAT ZIPLOCAL MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, ON THE DISTRIBUTION OF ANY PRINTED DIRECTORY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER UNDERSTANDS AND AGREES THAT ZIPLOCAL MAKES NO REPRESENTATION OR GUARANTEE THAT DELIVERY OR DISTRIBUTION TO EVERY HOUSEHOLD AND BUSINESS IN A DIRECTORY’S TERRITORY IS EITHER ACHIEVABLE OR REQUIRED BY THE TERMS OF THIS AGREEMENT. ZIPLOCAL MAY IN ITS SOLE DISCRETION REMOVE ANY DATA FROM ITS SERVERS AT ANY TIME FOR ANY REASON.

1.19. Remedies. No remedy made available under this Agreement is intended to be exclusive of any other remedy. Each and every remedy shall be cumulative and in addition to every other remedy under this Agreement or existing at law or in equity.

1.20. Attorneys’ Fees. Customer shall pay to ZipLocal all of ZipLocal’s reasonable attorneys’ fees, costs, and expenses (together with reasonable appellate counsel’s fees and costs, if any) incurred by ZipLocal in any action against Customer to enforce or interpret any term hereof, to rescind this Agreement or to prosecute any breach by Customer of any of the terms hereof

1.21. Limited Arbitration Clause. ZIPLOCAL AND CUSTOMER AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN THE PARTIES (WHETHER IN CONTRACT, TORT, OR OTHERWISE) THAT ARISES OUT OF OR RELATES TO THIS AGREEMENT, ITS INTERPRETATION, THE PARTIES’ RELATIONSHIP, ZIPLOCAL’S SERVICES, OR THE CUSTOMER’S PURCHASE SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION IN ACCORDANCE WITH THE TERMS, CONDITIONS, AND PROCEDURES IDENTIFIED IN ZIPLOCAL’S DISPUTE RESOLUTION PROGRAM, WHICH IS AVAILABLE VIA THE INTERNET AT ARBITRATION.ZIPLOCAL.COM, AND INCORPORATED BY THIS REFERENCE.

1.22. Force Majeure. Customer acknowledges and agrees that ZipLocal shall not be in breach of its obligations under this Agreement, and shall not be liable, if, for cause or causes beyond its control, ZipLocal is unable to perform, in whole or part, any one or more of its obligations under this Agreement. Such causes shall include, but not be limited to, labor disputes, governmental regulations or controls, or other casualty, inability to obtain materials or services, technical failure, acts of God, insurrection, acts of terrorism, or any other cause not within the reasonable control of ZipLocal.

1.23. Entire Agreement. This Agreement constitutes the entire agreement between ZipLocal and the Customer, and the same supersedes all prior agreements, whether express or implied and whether written or oral. The Agreement shall be understood to mean: i) these Terms and Conditions (excepting only those Terms and Conditions specifically excluded as more fully described below) and terms related to the specific Order appearing on the attached order forms, and (ii) any terms delivered to Customer with proofs, templates, products, or services that are both related to the Order and signed by authorized agents of the parties. For avoidance of doubt, the parties agree specifically that neither party shall be bound by any oral agreement, marketing materials, special arrangement that are either contrary to the terms contained herein or are not made through written agreement signed by authorized agents for both parties.

1.24. Modifications to the Agreement. This Agreement may not be amended, modified, or supplemented, nor may a party hereunder waive any obligations except by written instrument signed by authorized agents of both parties. Notwithstanding the foregoing, ZipLocal may modify the Terms and Conditions of this Agreement from time to time in ZipLocal’s sole discretion by posting the modified Terms and Conditions on the Systems or at the following website: http://terms.ziplocal.com. The Customer will be bound by the modified agreement after the modified Terms and Conditions have been posted on the Systems or on the website for 10 days.

1.25. Waiver. A party may not waive any of its obligations under this Agreement, except by written instrument signed by authorized agents of both parties.

1.26. Miscellaneous. If any part of this Agreement shall for any reason be declared invalid, such decision shall not affect the validity of any remaining portion, which shall remain in full force and effect. Facsimile signatures, electronic signatures and voice-recorded acceptance shall have the same legal effect as original signatures. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which, when taken together shall constitute one and the same. The headings in this Agreement are provided for convenience of reference only and are not to be considered in construing this Agreement. The provisions in the Sections 1.6, 1.8, 1.9, 1.10, 1.11, 1.12, 1.13, 1.15 to 1.25, 2.7, 2.8, 3.1 to 3.7, 3.9, 3.11 and those terms which by their nature are required to survive to give effect to the surviving terms stated to survive shall survive any expiration or termination of any Order relating thereto and shall survive the termination of this Agreement. ZipLocal may assign this Agreement at any time; however, the Customer must not assign this Agreement without ZipLocal’s prior written consent.

1.27. Due Authorization. The signer hereunder has all necessary power, authority and capacity to enter into this Agreement for and on behalf of the Customer and to perform its obligations herein.

1.28. Confidentiality. Because of the sensitive and proprietary nature of some aspects of the Services, including the SurePrint program, the Customer agrees that it will not disclose specific data generated by the Services, including but not limited to the SurePrint services, such as the data found in the Call Reports. However, the Customer may disclose and is encouraged to discuss generally with other individuals and businesses, the positive results achieved by the SurePrint service. Customer agrees to allow ZipLocal without further payment or consideration, to use the Customer’s name, SurePrint program results, and display ad in ZipLocal’s advertising, marketing and promotional materials.

1.29. Governing Law, Jurisdiction. ZipLocal and Customer agree that the laws of the State of Utah shall govern this Agreement and any dispute hereunder, without giving effect to any conflict of laws provisions. ZipLocal and Customer agree that any action or proceeding brought by either Party that in any way relates to, arise out of or under, or in any way concerns this Agreement or any services offered to Customer by ZipLocal must and shall be brought exclusively in state or federal courts in Utah County, State of Utah.

2. PRINT AND ONLINE ADVERTISING The following Terms and Conditions shall apply specifically and only to Print and Online Advertising. All Terms and Conditions under Section 1 herein shall also apply to the aforementioned Print and Online Advertising.

2.1. The Print and Online Advertising. The Print and Online Advertising Services provide for placing the Customer’s Advertising in the hard-copy and electronically-printed directories identified on the Order Form and displaying the Customer’s Advertising in the chosen ZipLocal online advertising platform, as provided on this Order Form.

2.2. The Charge Per Call Services. ZipLocal shall provide the Customer with Charge Per Call Services using SurePrint in accordance with the following General Terms and Conditions. These Charge Per Call Services will display your Advertising in the Print and Online Directories you select. Your Advertising will include your unique Call Tracking Number. Customer agrees to have its regular business phone number replaced with a Call Tracking Number which will forward all calls directly through to another telephone number designated by you to receive the call (referred to herein as the “Forward To Number”). When consumers call your Call Tracking Number, a record of important information will be captured. Calls will be qualified when a call has been received through the Customer Call Tracking Number(s) and is a minimum of 30 seconds in length; duplicate calls received within a 72 hour period and short calls as determined by Publisher shall be removed from the count of Qualified Calls. The result will be a list of Qualified Calls that will be emailed to you monthly. You will be charged monthly a Call Fee for each Qualified Call as stated on the Order for a total of 14 months.

2.3 Payment. For SurePrint, a non-refundable set up fee per ad is required at the time of sale. Customer agrees to purchase a maximum amount of annual Advertising as indicated on the Order (referred to as “Annual Budget”). The monthly amount will be based upon the total Qualified Calls generated during the one-month period for Print Advertising. You must arrange for payment through Credit Card Payment or Electronic Funds Transfer, as indicated on the front of the Order. You must provide Publisher with a valid credit card or valid details of your checking account, which will be charged each month following the month during which the advertising services were provided. You must provide Publisher with all of the information requested in the Order and keep it current with Publisher to allow timely processing of payment. Your account shall remain current at all times. Publisher will provide you with monthly report detailing the calls.

2.4. Review, Approval and Changes of Advertising. (a) For Online Advertising Customer shall be informed in writing of the timelines given to Customer to review its Proofs and provide changes to ZipLocal via telephone, email or fax, after which the Online Advertising will be published. If Customer fails to provide ZipLocal with the requested changes within the time period stated in the notice, the Online Advertising shall be deemed to be correct, and Customer shall be deemed to have approved such Online Advertising. If the changes to the Online Advertising are made after the time period stated, Customer may revise its Online Advertising by contacting ZipLocal corporate office. ZipLocal will make reasonable efforts to modify the published Online Advertising in a reasonable timeframe thereafter. ZipLocal reserves the right to reject any requested changes to the Online Advertising provided by Customer, and also reserves the right to edit any Online Advertising and develop new Online Advertising derived from the approved Advertising if such modification is required in order to optimize Customer’s Advertising for digital distribution and display (b) For Print Advertising, although not required, Publisher will make a commercially reasonable effort to provide Customer one Proof of each different Display Print Advertising included in the Order. Customer shall have the right to request changes to ZipLocal via telephone, electronically or fax. If Customer fails to provide ZipLocal the requested changes within the time period set forth on such Proof, Customer shall be deemed to have approved such Proof. ZipLocal reserves the right to reject any requested changes to the Print Advertising provided by Customer. If despite ZipLocal’s requests, Customer fails to provide ZipLocal any artwork to create the Display Print Advertising, ZipLocal shall have the right to create the Advertising for use in Print and Online Advertising.

2.5. Classifications, Changes, Placement, Positioning and Conditions of Performance. ZipLocal reserves the right to change any classification headings that are shown on the face of the Order in order to maintain standardization of classifications that will best serve the purpose of Advertising. Copyrighted advertising furnished by the Customer shall contain proper copyright notice and shall comply with ZipLocal’s requirements, including its Policies referenced herein. ZipLocal does not guarantee that an Advertising will appear (i) under any particular heading, topic or menu, or (ii) in any particular order or sequence, or (iii) in any particular position or location in a directory, web page or any other online platform. ZipLocal does not guarantee exact reproduction. The company name, address, and telephone number as shown on the face of the Order are the criteria for correctness of the Online and Print Advertising.

2.6. Call Tracking Numbers. A Call Tracking Number (“CTN”) is a telephone number that when dialed captures certain information relating to the calling party and then transfers the incoming call to another telephone number designated by the Customer to which it desires to receive calls. The information obtained from the call is used by the Customer to evaluate the return on investment of its Advertising. The CTN will be the telephone number appearing in the Advertising, and the CTN will be automatically redirected to your regular business telephone number. ZipLocal is not able to provide any specialty CTNs. All CTNs are the property of ZipLocal and may be used by the Customer only for the purposes of this Agreement. Upon termination of this Agreement, the Customer shall not make further use of any CTNs.

2.7. Errors in Online or Print Advertising. ZipLocal is not responsible for (1) errors in Customer Information or in the Customer’s Content provided by the Customer or its representatives, or (2) errors or omissions in Customer Information or in the information provided by public sources or other directories from which ZipLocal uses in connection with the Services. ZipLocal is also not responsible for inadvertent and unintentional errors in the Work Product. Subject to the limitations set forth herein, and only for Print Advertising, if an error or omission in the Work Product, the Customer’s Content or the Customer Information, including incorrect names, addresses, telephone numbers and other identifying information, occurs as a result of the negligence of ZipLocal, then only the following adjustment of the amounts paid by the Customer to ZipLocal for such item shall be considered, which adjustment, if any, shall be in the sole discretion of ZipLocal: (a) wrong main number – 100%, (b) wrong alternate call number – 15%, (c) wrong address – up to 25%, (d) incorrect spelling of business name – up to 25%, and (e) incorrect spelling of a word or no Proof of advertising received or color error – no adjustment. ZipLocal shall have no other liability for errors or omissions in the Work Product or the Customer Content, except as stated herein. For errors in Online Advertising, or in Digital Products, Customer’s only recourse is to request for the error to be corrected. ZipLocal commits to correct an error in an Online Advertising or in Digital Product within 5 business days of the error being reported in writing to ZipLocal by Customer. Adjustments shall not be allowed on Advertisings for which no charge was made. Within three (3) months after publication of it Online or Print Advertising the Customer shall notify ZipLocal of any claim for credit the Customer is asserting under this Section. Adjustments will not be allowed after such three-month (3) period.

2.8. NO WARRANTY/LIMITATION OF LIABILITY – ADDITIONAL TERMS. ZIPLOCAL DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IF, FOR ANY REASON, ZIPLOCAL ELECTS NOT TO PUBLISH OR FAILS TO PUBLISH ANY ADVERTISING, ZIPLOCAL’S LIABILITY AND THE CUSTOMER’S REMEDY SHALL BE LIMITED TO A REFUND OF ANY PAYMENT(S) ACTUALLY MADE TO ZIPLOCAL BY THE CUSTOMER FOR SUCH ADVERTISING. IN THE EVENT THAT THE DISPUTE IS BASED ON AN ERROR, OMISSION OR MALFUNCTION IN AN AD, THEN THE CUSTOMER’S REMEDY SHALL BE LIMITED TO A) THE PERCENTAGES SHOWN IN SECTION CAPTIONED “ERRORS” OR IF A SITUATION DOES NOT FALL WITHIN THESE DESCRIPTIONS, B) A PRO-RATA REDUCTION OR REFUND OF THE CHARGES FOR THE AD IN THE SAME PROPORTION THAT THE ERROR, OMISSION OR MALFUNCTION REDUCES, IF AT ALL, THE VALUE OF THE AD TO THE CUSTOMER. THE REMEDIES SET FORTH IN THIS PARAGRAPH AND THE FOREGOING PARAGRAPH TITLED “LIMITATION OF LIABILITIES” SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES

3- DIGITAL SERVICES. The following Terms and Conditions shall apply specifically and only to Digital Services and Websites. All Terms and Conditions under Section 1 herein shall also apply to the aforementioned Digital Services and Websites services.

3.1. License and Rules. ZipLocal hereby grants the Customer and its employees a non-exclusive license (the “License”) to access and use the Systems in connection with the Services, pursuant to the terms and conditions of this Agreement. Whenever Customer or its employees access or use the Systems or any of the data obtained from or through the Systems (the “Data”), the Customer and its employees must comply with all applicable laws and all rules, policies and procedures ZipLocal communicates to the Customer from time-to-time. The Customer will cause its employees to comply with this Agreement.

3.2. Restrictions. The Customer must not, without ZipLocal’s prior written consent: (a) modify, obscure or otherwise edit any Data or any copyright or other notices which appear on the Systems; (b) reverse engineer, de-compile, hack, disable, disrupt, interfere with, disassemble, copy, decrypt, reassemble, supplement, translate, adapt or enhance any of the Data or the Systems; (c) upload or transmit to the Systems or to the Digital Services anything that (if reproduced, published, transmitted or used) may: (i) be defamatory, threatening, abusive, obscene, pornographic, harmful or invasive of anyone’s privacy, (ii) violate any law including intellectual property, privacy or other laws, or(iii) give rise to civil or other liability; (d) upload or transmit to the Systems or to the Digital Services any data, file or software that contains a virus, Trojan horse, worm or other harmful component; (e) use the Services in a manner which consumes excessive systems or network resources that disrupts the normal use of the Services through, but not limited to, spawning multiple processes or consuming excessive amounts of memory, CPU or bandwidth usage, (f) use any of the Data, the Systems, or to the Digital Services for spamming, bulk message transmission, or other prohibited activities; (g) rent, lease, assign or transfer any rights in—or permit any third party to use or access—any of the Data, the Systems, or the Digital Services; or (h) avoid, circumvent, or disable any access control technology, security device, procedure, protocol, or technological protection mechanism that may be included or established in any of the Data or the Systems. In addition to any other available remedies, ZipLocal may suspend or terminate the Customer’s access to the Systems, or to the Digital Services upon breach of any of the above obligations.

3.3. Equipment. The Customer is solely responsible for obtaining all computer equipment and connections required to access and use the Systems and the Services. ZipLocal will not be responsible for the workings or failures of the Customer’s computer equipment, network, software or Internet access.

3.4. Passwords. The Customer and its employees must take reasonable measures to maintain the confidentiality and security of all usernames and passwords issued to the Customer and its employees. The Customer must immediately notify ZipLocal in writing if the Customer becomes aware of any unauthorized use of any username or any other security breach regarding the Systems or the Digital Services. The Customer will be solely responsible for all activities conducted under the Customer’s and its employee’s usernames.

3.5. Consent. ZipLocal will collect various information about the Customer and may monitor the Customer’s use of the Services and the Systems. Customer consents to ZipLocal’s collection, use and disclosure of the Customer’s information for the purposes of providing the Services, communicating with Customer, ensuring the Customer’s compliance with this Agreement, and collecting payment under this Agreement.

3.6. Risks. The Customer acknowledges that there are risks associated with the Data, Systems and Services, including the following: (a) The Data might be inaccurate or incorrect; (b) The Customer’s use of the Systems and Services might be interrupted and will not be free of errors; (c) The Systems, or the Digital Services will be unavailable from time-to-time; (d) The Systems or the Digital Services might not be secure, and third parties may gain unauthorized access to data or content on the Systems or on the Digital Services.

3.7. Modifications to Systems and Digital Services. From time to time, ZipLocal may add new features to the Systems, remove existing features from the Services and the Systems, or otherwise modify the Services and the Systems (including its functionality, “look-and-feel”, universal resource locators and software components).

3.8. Website Services. ZipLocal provides domain name registration/renewal/transfer, website creation, website hosting, and email hosting services (the “Website Services” or “Website”). Customer shall confirm on the front of the Order which services it will purchase from ZipLocal for the Term of the Agreement. Access to the web and email server space is terminated upon expiry of the Website Services. Website Services are provided on the basis of service, facility and equipment availability. ZipLocal reserves the right not to provide one or more Website Services where necessary facilities, equipment or services are not available for any reason. When purchasing Websites Services, which include the design of a Website, Customer agrees that it shall only be allowed to make two revisions to the Website at no additional costs. Any further revisions (including revisions that result of Customer’s use of the DYI tool) will be charged to the Customer.

3.9. Domain Names and Websites. As between the parties, the Customer will own any domain names it registers in connection with the Services or the Systems (the “Domain Names”) and the content of any websites ZipLocal creates or has created in connection with the Services (the “Websites”). ZipLocal will administer the Domain Names and Websites on behalf of Customer during the Term. ZipLocal offers domain registration and renewal services in partnership with a domain registrar of its choice (the “Registrar”). ZipLocal processes registration and renewal services through this Registrar at its discretion. The Customer agrees that ZipLocal may, but is not obligated to, place Customer’s Domain Name registration in a domain lock status to prevent unauthorized transfers of its Domain Name registration. In addition to this Agreement, Domain Names are also subject to the domain registration agreements of ZipLocal’s then current Registrar. If the Customer requests that ZipLocal use one of the Customer’s Domain Names in connection with the Services, the Customer will transfer that domain to the Registrar or hosting provider selected by ZipLocal from time-to-time, and will take any other steps required for ZipLocal to use the Domain Name in association with the Website Services. Customers may transfer the Domain Names to a new Registrar, subject to ZipLocal’s Policies and to the Registrar’s transfer fee per Domain Name. The transfer of the Domain Name shall not terminate this Agreement and Customer will remain liable for all other Services purchased on the Order during the Term.

3.10. Volume Restrictions and Usage. ZipLocal retains the right, at its sole discretion, to restrict the volume of messages transmitted or received by the Customer in order to maintain the quality of the Website Services to other customers and to protect ZipLocal’s computer Systems. As owner and/or operator of the equipment and other resources utilized to provide services, ZipLocal has the legal right to block electronic communications from other entities on the Internet. All outgoing email messages being sent from ZipLocal servers may carry an email footer “Trailer Message” which may identify ZipLocal as the Customer’s service provider. ZipLocal does not currently set an arbitrary limit on the amount of resources the Customer can use, but may do so in the future. The ZipLocal hosting plan is designed to serve the web hosting needs of small to medium, independently owned and operated businesses and/or personal websites. The accounts are not intended to support the greater web hosting needs of large enterprises or to be used as an online storage warehouse to store: backups, archiving of electronic files or emails, documents, log files, etc. or used as media file streaming/sharing hub. ZipLocal Website Services are provisioned in a shared hosting environment; Any Customer found to be adversely affecting the performance of other customers’ accounts by excessively using network bandwidth, server storage, memory and CPU resources, will be flagged by ZipLocal administrators and anti-abuse controls, and Customers will then be asked to consider a Virtual Private Server (VPS) or dedicated server services. Serious offenses will result in Website Service suspension or termination, with or without notice and in ZipLocal’s sole discretion.

3.11. Reservation of Rights. In addition to all other remedies available to ZipLocal under this Agreement, ZipLocal reserves the right and sole discretion to: (a) Censor any website hosted on its servers that is deemed inappropriate; (b) Review any Website for excessive space or bandwidth utilization and to suspend Website Services to those accounts that exceeds allowed levels;(c) Terminate an account and access to the Website for non-payment, or providing fraudulent information or for breach of any other terms under this Agreement; (d) Terminate any Website if the contents of the Customer’s Website results in, or are the subject of, legal action or threatened legal action, against ZipLocal or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit; (e) Terminate the Customer’s Website for unsolicited, commercial e-mailing (i.e., SPAM); illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and other activities whether lawful or unlawful that ZipLocal determines to be harmful to its other customers, operations or reputation; or for any breach of this Agreement; (f) Suspend Website Services at any time for any duration of time when necessary, without penalty or liability to ZipLocal; (g) temporarily suspend the Website Services for technical reasons or to maintain network equipment or facilities.