TERMS OF SERVICE
Cuselleration, Inc. (“Cuselleration”) provides a range of marketing products and services for local businesses (the “Marketing Services”). The Order Form (the “Order Form”) sets forth which Marketing Services are being purchased by the client who signed the Order Form (“you” or “Client”), the costs for such Marketing Services, and other relevant details. These Online Marketing Services Terms and Conditions (“Marketing Services Terms”) are incorporated by reference into and made a part of any Order Form submitted to Cuselleration and govern the relationship between you and Cuselleration. These Marketing Services Terms also apply to any Marketing Services you may sign-up for without an Order Form, such as free trials or other limited-time offers. All Order Forms are subject to acceptance by Cuselleration, in its sole discretion. The Order Form, the Marketing Services Terms, and the documents and/or links referenced in such documents are together referred to as the “Agreement.”
If you are accepting on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to this Agreement, (ii) you have read and understand this Agreement and (iii) you agree, on behalf of the Client, to this Agreement.
PLEASE REVIEW THIS AGREEMENT CAREFULLY, INCLUDING THE DISPUTE RESOLUTION PROVISION IN SECTION 15, WHICH DESCRIBES HOW CERTAIN DISPUTES WILL BE RESOLVED BETWEEN US, AND THAT NO CLASS ACTIONS MAY BE BROUGHT UNDER THIS AGREEMENT. IF YOU WANT TO OPT-OUT OF THIS DISPUTE RESOLUTION PARADIGM, SECTION 15 BELOW DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO.
a. Identification of Fees. You agree to pay the amounts set forth in the Order Form in accordance with Section 3 or as may be further explained in the Product Terms (the “Fees”). The Fees are generally divided into product fees, service fees and set-up fees. Product fees are the recurring fees that you will be charged for the specific product you have purchased as shown on the Order Form. Service fees are for the delivery of any premium services that Cuselleration may, from time to time, offer. Set-up fees are one-time fees for the set-up of campaigns or other services. Cuselleration reserves the right to change any of the Fees at any time, provided that such changes will not take effect until a new Order Form has been executed and delivered to Cuselleration by you.
b. Promotional Credits. If Cuselleration offers any special promotions that provide you with credits or other incentives in connection with purchasing Marketing Services (the “Promotional Credits”), and you cancel one or more of the Marketing Services prior to completion of the Initial Term (other than for cause, as set forth below), then in addition to any other cancellation penalties you may be subject to, you will be required to repay to Cuselleration the prorated amount of the Promotional Credit(s).
2. Payment Terms.
a. General. Once an Order Form has been accepted by Cuselleration, you will be responsible for payment in full of all Fees, except as may otherwise be provided in Section 2 hereof. All payments are due in U.S. dollars.
b. Manner of Payment. You shall pay for all amounts payable under this agreement You agree that the amounts payable under this agreement will be made by check.
c. Timing of Payment. Fees, as identified on the Order Form, are due net 30. If there are Set-Up Fees (as set forth on the Order Form), such Fees shall be paid in advance together with all amounts owed for the first Cycle. You understand and acknowledge that all amounts owed must be paid net 30 with the exception of set-up fees and amounts owed for the first cycle which must be paid in advance, and that, in addition to being in breach of your contractual obligations, your campaign or service may be paused or terminated if timely payment is not received.
a. Term. The Agreement shall commence upon execution of an Order Form and, unless otherwise provided in the Product Terms, shall continue until cancelled in accordance with the terms of this Agreement.
b. Cancellation. DocuSign Envelope ID: 466C0B3E-0D33-41C8-84C2-56BAC015E8E8 Marketing Service Agreement Contract You may cancel at any time with a 30 day notice.
c. Cuselleration may cancel at any time for any reason on written notice to you (which may be provided by email) upon the conclusion of a Cycle.
d. No Refunds. You understand and agree that you will not be entitled to any refunds of amounts already paid to Cuselleration, unless you properly terminate under Section 3(a) or Cuselleration terminates under the last sentence of Section 3(b), in which case you shall only be entitled to a refund for the unspent balance of the then applicable Cycle Payment (as defined in the applicable Product Terms) or equivalent.
e. Collection of Amounts Owed. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). You agree to pay all costs of collection (including attorneys’ fees and costs and all other legal and collection expenses) incurred by Cuselleration in connection with its enforcement of its rights under the Agreement.
f. Effect of Termination; Survival. You understand and acknowledge that due to the nature of the Internet, certain information regarding you that was posted on the Internet as part of the Marketing Services may continue to be available on the Internet following termination of Marketing Services and/or the Agreement. All provisions of the Agreement that by their sense or nature should survive termination of the Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall survive. Without limiting the generality of the foregoing, in the event of any termination, you shall remain liable for any amounts due to Cuselleration as of the effective date of termination.
5. Intellectual Property Matters.
a. License to Cuselleration. You hereby grant to Cuselleration a non-exclusive, royalty-free, worldwide license to use, copy, modify (as permitted herein), publicly perform, display, broadcast and transmit during the term of this Agreement (i) any text, images, logos, trademarks, service marks, promotional materials, product or service information, comments, reviews, photos, audio and video clips and other information (“Client Content”) you provide in connection with any Marketing Service and (ii) the Existing Site, to the extent necessary for Cuselleration to perform the Marketing Services. Except as set forth in any Product Terms and this Agreement, Cuselleration acknowledges and agrees that you and your third-party licensors retain title to and ownership of all intellectual property rights of all Client Content. You agree that Cuselleration may, with your prior written request, and solely during the term of this Agreement, include your name (including any trade name, trademark, service mark and logo) on Cuselleration’s client list, and in its marketing materials, sales presentations and any online directories that Cuselleration may, from time to time, publish.
b. Cuselleration Creative Services. Except as may be otherwise provided in any of the Product Terms, if you request that Cuselleration provide any creative services, you will remain fully responsible for any content you provide to Cuselleration. With respect to any content created by Cuselleration, as between you and Cuselleration, Client shall retain ownership of the design elements of such content, including any of your trade names, trademarks, service marks or logos or other proprietary elements that may be included within such content, but that predate the creation of the content. DocuSign Envelope ID: 466C0B3E-0D33-41C8-84C2-56BAC015E8E8 Marketing Service Agreement Contract
6. Your Representations, Warranties and Covenants. Each party represents to the other that is has all necessary rights and authority to enter into this Agreement. You represent, warrant and covenant that the Existing Site, any content linked to the Existing Site and any content or materials that you provide to Cuselleration, do not and will not: (a) infringe on any third party’s copyright, patent, trademark, trade secret, moral right or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false or misleading advertising or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. You further represent, warrant and covenant that the product or service that is being (or will be) promoted through any campaign is (i) lawful and (ii) not the subject of any known ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities. Cuselleration makes the following representations, warranties, and covenants to Client:
(i) Cuselleration is duly organized, validly existing and in good standing under the laws of the state of its incorporation and has all licenses necessary to carry on its business as now being conducted and is licensed and qualified to transact business in, and is in good standing under the laws of each state where such qualification is required under applicable law.
(ii) Cuselleration has the full power and authority to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement. Cuselleration has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by Client, constitutes a legal, valid and binding obligation of Cuselleration.
(iii) There is no litigation pending or, to Cuselleration’s knowledge, threatened which if determined adversely to Cuselleration would adversely affect the execution, delivery or enforceability of this Agreement, or the ability of Cuselleration to perform its obligations set forth herein in accordance with the terms hereof.
(iv) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance of or compliance with this Agreement or the consummation of the transactions contemplated by this Agreement by Cuselleration.
(v) All services provided by Cuselleration under this Agreement shall be performed in strict compliance with all applicable laws, rules and regulations, and non of the services used or provided by Cuselleration violate any third parties rights in any intellectual property.
a. You will indemnify, defend (with counsel reasonably acceptable to Cuselleration) and hold harmless Cuselleration, its subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents and employees and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys’ fees and expenses) incurred in connection with any claim, action or proceeding arising from or relating to: (i) any breach by you of any representation, warranty, covenant or other obligation contained in these Marketing Services Terms or in any of the Product Terms; (ii) the violation of any rights of any third party, including intellectual property, privacy, publicity or other proprietary rights by you or anyone using your account; (iii) the sale, license, supply or provision of your goods or services; and (iv) violations of applicable law. Cuselleration reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. If Cuselleration does assume the defense of such a matter, you will reasonably cooperate with Cuselleration in such defense. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to, or any admission of wrongdoing by, any indemnified person or entity, without Cuselleration’s prior written consent.
b. Cuselleration agrees to indemnify, defend (with counsel reasonably acceptable to you) and hold you and each of your subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents and employees and each of their successors and assigns harmless from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys’ fees and expenses) incurred in connection with any claim, action or proceeding arising from or relating to: (i) any breach by Cuselleration of any representation, warranty, covenant or other obligation contained in these Marketing Services Terms or in any of the Product Terms; (ii) the violation of any rights of any third party, including intellectual property, DocuSign Envelope ID: 466C0B3E-0D33-41C8-84C2-56BAC015E8E8 Marketing Service Agreement Contract privacy, publicity or other proprietary rights by Cuselleration and (iii) violations of applicable law. You reserve the right, at your own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Cuselleration. If you do assume the defense of such a matter, Cuselleration will reasonably cooperate with you in such defense. Cuselleration will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to, or any admission of wrongdoing by, any indemnified person or entity, without your prior written consent.
c. Confidentiality. Except as may be required by applicable law, neither party shall disclose the contents of the Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without prior written consent of the other party. Except as otherwise expressly herein permitted, no party may issue a press release concerning the existence or terms of the Agreement without the prior written consent of the other party. In addition, except as may be required by applicable law, neither party shall disclose any Confidential Information regarding the other party. “Confidential Information” means information about the other party’s (or its suppliers’) business, products, technologies, strategies, financial information, operations or activities that is proprietary and confidential, including without limitation all business, financial, technical and other information disclosed by the agreeing party. Confidential Information will not include information that you can establish is in or enters the public domain without breach of these confidentiality obligations.
8. DISCLAIMER OF WARRANTIES.
a. CUSELLERATION PROVIDES ALL MARKETING SERVICES PERFORMED HEREUNDER AND REACHCENTRAL ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE MARKETING SERVICES ARE INTERRUPTED OR DELAYED, CUSELLERATION’S SOLE OBLIGATION WILL BE TO RESTORE SUCH SERVICES AS SOON AS PRACTICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSELLERATION DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. CUSELLERATION WILL HAVE NO LIABILITY FOR ANY:
(i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION;
(ii) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF ANY OF THE MARKETING SERVICES;
(iii) UNAUTHORIZED ACCESS TO OR USE OF CUSELLERATION’S SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION;
(iv) INTERRUPTION OF TRANSMISSION TO OR FROM THE MARKETING SERVICES;
(v) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE MARKETING SERVICES BY ANY THIRD PARTY UNLESS DUE TO CUSELLERATION’S NEGLIGENCE; OR
(vi) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE MARKETING SERVICES; OR
(vii) MATTERS BEYOND CUSELLERATION’S REASONABLE CONTROL. CUSELLERATION DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE OFFERINGS OR ANY LINKED WEB SITE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CUSELLERATION OR THROUGH THE MARKETING SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE MARKETING SERVICES TERMS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSELLERATION MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY CAMPAIGN OR ANY PRODUCT OR SERVICE DocuSign Envelope ID: 466C0B3E-0D33-41C8-84C2-56BAC015E8E8 Marketing Service Agreement Contract
9. LIMITATIONS OF LIABILITY.
a. NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING EXCLUSION OF LIABILITY WILL NOT APPLY TO (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION THEREWITH; (II) TO EITHER PARTY’SCONFIDENTIALITY OBLIGATIONS; AND/OR (III) EITHER PARTY’S WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE.
b. LIMITATION ON DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND OTHER THAN WITH RESPECT TO FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; UNDER NO CIRCUMSTANCES SHALL CUSELLERATION’S CUMULATIVE, AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE AMOUNTS RECEIVED BY CUSELLERATION FROM YOU DURING THE 18-MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. IN LIEU OF REFUND, CUSELLERATION SHALL BE PERMITTED, IN ITS SOLE DISCRETION, TO PROVIDE “MAKEGOOD” MARKETING SERVICES, PROVIDED SUCH “MAKE-GOOD” MARKETING SERVICES ARE PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent Cuselleration may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Cuselleration’s liability will be the minimum permitted under such law
c. Acknowledgement. Each party acknowledges that the other party has entered into the Order Form in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
10. Third Party Beneficiaries.
a. You understand and acknowledge that the Publishers are intended third-party beneficiaries of Sections 7, 8, 9 and 13. 6, 7, 8, and 12
11. Dispute Resolution
a. Informal Dispute Resolution. Except for any controversy or claim relating to an Intellectual Property Right (as defined below) the parties agree that with respect to any matters, disputes, or claims between Client and Cuselleration arising from or related to this Agreement or the parties’ relationship, Cuselleration and Client shall negotiate in good faith to informally resolve the problem or dispute. If the problem or dispute is not resolved satisfactorily within 30 days after Cuselleration or Client receives notice in accordance with Section 13(c) (if Cuselleration), or to the address identified on the Order Form (if Client), either party can bring an action in a court of competent jurisdiction.
b. Voluntary and Knowing Waiver. BY ENTERING INTO THIS AGREEMENT, CLIENT AND CUSELLERATION BOTH ACKNOWLEDGE AND AGREE THAT THEY ARE WAIVING THE RIGHT TO TRIAL BY JURY FOR ANY CLAIM THAT ARISES OUT OF THIS AGREEMENT.
a. Governing Law. The Agreement will be governed and construed in accordance with the laws of the State of California without giving effect to conflict of laws principles. Venue shall be Los Angeles County.
b. Entire Agreement. The Agreement (which includes the Order Form, all applicable Product Terms and any payment authorization forms) sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. It may be changed only by a writing signed by both parties. With respect to changes to Order Forms then in effect, such writing may include email, provided that such changes are limited to a change in the term of the Order Form or the amounts being paid under the Order Form.
c. Notices. Any written notices to Cuselleration required under the Agreement shall be provided by registered mail with proof of delivery to Cuselleration’s then current corporate headquarters address (as shown on DocuSign Envelope ID: 466C0B3E-0D33-41C8-84C2-56BAC015E8E8 Marketing Service Agreement Contract www.Cuselleration.com), Attn: Office of the Chief Legal Officer and by email to notices@Cuselleration.com. Notices shall be deemed delivered 72 hours after posted in the mail.
d. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
e. Assignment. You may not assign any Order Form or the Agreement without the prior written consent of Cuselleration. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns.
f. Independent Contractors. The parties to the Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by the Agreement.
g. Third-Party Services. Some of the Marketing Services may incorporate third-party products and services and Cuselleration may do so without your consent, provided that Cuselleration remains primarily liable for the performance of its obligations to you.
h. Referrals. You acknowledge that Cuselleration may provide incentives to third parties to introduce potential clients to Cuselleration or to direct Cuselleration to potential clients.
i. Force Majeure. Neither party shall have any liability for any failure or delay (other than with respect to payment obligations) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or inventory shortage, unavailability of currency, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
j. International Sale of Goods; Exports. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. Cuselleration software is controlled by U.S. Export Regulations, and it may not be exported to or used by embargoed countries or individuals.
Last updated on September 1, 2018.