TERMS OF DIRECTORY LISTING SERVICE
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1. Scope. The scope of this Agreement is for the products and services offered by OverEasy (“Product”) to you (“you,” “your,” “Customer”), including the Product of a directory listing service (the "Service") owned and operated by OverEasy. OverEasy may change the terms of this Agreement by posting such changes online. Your use of the Service after notice that the terms of this Agreement have changed constitutes your acceptance of the new terms.
2. Account Registration. By completing the account registration process, Customer agrees to be bound by these terms. Customer represents and warrants that the representative for Customer agreeing to be bound by the terms is 18 years old or older. If Customer is a partnership, corporation, or other entity, the person agreeing to be bound on behalf of such entity represents and warrants that such person has the authority to agree to the terms of the Directory Listing on behalf of Customer.
3 Use of Service. a. License: OverEasy hereby grants Customer a limited, non-exclusive, non-transferable right and license to access and use the Service solely in connection with Customer’s legitimate and legal business needs. This license will terminate in the event the applicable subscription is not renewed or this Agreement is terminated pursuant to this Agreement, in which case Customer will immediately cease any further use of the Service.
c. Product Subscriptions on Partner Sites: Certain Products may involve distribution of Customer Content and/or other interactions with third parties (“Partners”) that own or operate online business directories, search web sites, social media web sites, mobile apps, or other online properties (the “Partner Sites”). Customer acknowledges and agrees that (i) all content submitted for any Product shall be subject to the Partners’ character limits, quality standards, and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Partner at any time in its sole discretion or modified by OverEasy or the Partner at any time to comply with such policies, (ii) OverEasy does not guarantee that any content will be displayed on any Partner Site, and (iii) the appearance and/or location of any content placement may change at any time. OVEREASY SHALL HAVE NO LIABILITY FOR THE AVAILABILITY OF OR ANY CHANGE IN THE PARTNER SITES, FOR ANY DECISION BY A PARTNER TO REJECT OR MODIFY ANY CONTENT SUBMITTED BY CUSTOMER, OR FOR ANY OTHER DECISION, CHANGE OR OTHER ACTION DESCRIBED IN CLAUSES (i), (ii) OR (iii) OF THE PRECEDING SENTENCE.
4. Password. Customer shall receive a password from OverEasy to provide access to and use of the Service. Customer is entirely responsible for any and all activities that occur under Customer's account and password. Customer agrees to keep its password confidential, to allow no other person, company, or entity to use its account, and to notify OverEasy promptly if Customer has any reason to believe that the security of its account has been compromised.
5. Customer Responsibility. a. “Customer Content” is defined as anything that is in Customer's online profile on OverEasy (“Company Profile”), whether it is entered directly by Customer, OverEasy, a third party, or otherwise, and whether it is information, material, content, images, or any other data or communication, electronic or otherwise, including, but not limited to, Customer's account registration information, Customer's order information, sales information, and clickstream data that are provided by or on behalf of you in connection with your use of the Service. If any Company Profile provided by Customer is untrue, inaccurate, not current, or incomplete, OverEasy has the right to terminate Customer's account and refuse any and all current or future use of the Service. b. Customer agrees that Customer, and no other entity, bears 100% of the responsibility for entering and maintaining Customer Content in Customer's Profile and all acts or omissions that occur with regard to the Service or in connection with Customer's account or password, and Customer shall maintain and update all Customer Content (as defined below) so it is always true, accurate, current, and complete. Customer agrees that OverEasy is not responsible for any loss, damage, or corruption of any of the Customer Content and that OverEasy is not responsible for Customer Content being true, accurate, current, or complete. Customer agrees that OverEasy has editorial discretion with regard to the presentation of the Service and so to Customer Content forming a part thereof. OverEasy is not liable for misprints, typos, or incorrect information in any of the listings posted to the Directory.
c. License to Customer Content: Customer hereby grants OverEasy a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of OverEasy’s business), perpetual, irrevocable right and license to use, copy, publish, distribute, syndicate, reformat, and update in aggregate form (i.e., in a form that is not individually attributable to the Customer) Customer Content for research, marketing, and other promotional purposes (for example, to improve accuracy and/or standardize formats). Customer also grants to OverEasy the right to maintain Customer Content on OverEasy's servers during the Term of the Agreement (as defined below) and to authorize the downloading and printing of Customer Content, or any portion thereof, by end users for their personal use. OverEasy may sublicense this right to any Partners and other online partners. This license will survive any termination or expiration of this Agreement.
d. Customer Representations and Warranties: Customer represents, warrants, and agrees that Customer will not engage in any activities: (i) that violate OverEasy policies and/or appropriate community standards or constitute or encourage a violation of any applicable law or regulation; (ii) that defame, impersonate, or invade the privacy of any third party or entity; (iii) that infringe the rights of any third party, including, but not limited to, the intellectual property, business, contractual, or fiduciary rights of others; and (iv) that are in any way connected with the transmission of "junk mail," "spam," or the unsolicited mass distribution of e-mail, or with any unethical marketing practices.
6. Support. Customer can obtain assistance with any technical difficulty that may arise in connection with Customer's utilization of the Product or Service by requesting assistance via our support center. OverEasy reserves the right to establish limitations on the extent of such support and the hours during which it is available.
7. Proprietary Rights/Trademarks. OverEasy reserves all rights of its Products and Services, including, but not limited to, copyrighted works of OverEasy and/or its various third-party licensors and partners. Customer agrees that content available from OverEasy or any Product (which also includes the Service), including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, and video, may be protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than consistent with such ownership interests. The trademarks, service marks, logos, and any designs used or displayed on the Products or any OverEasy owned webpage are trademarks and/or service marks owned by OverEasy or its licensors. Nothing in this Agreement shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any OverEasy trademark displayed on the Products or any OverEasy owned webpage or website without OverEasy’s prior written permission in each instance. The appearance of any third-party trademarks does not in any way imply any connection, license, approval, or other such relationship of any kind with such third party.
a. Fees: By ordering a subscription, you agree to any fee and payment terms that are described in the order, herein, and/or during the online registration process. All fees are exclusive of any sales or other taxes (excluding OverEasy income tax). OverEasy may, but has no obligation to, make available limited special discount offerings on fees. Such discounts are for the term defined in the discount. Once the term for such discount(s) expire, fees will revert to the non-discounted and then-current price, including sales taxes and continue unless such Product and/or Service is cancelled according to this Agreement.
b. Provision of Credit Card Information; Payment Terms: You will be required to provide OverEasy with a valid credit card number upon registration for a subscription. You hereby warrant and represent that you have the authority to provide such credit card information to OverEasy and shall be responsible for all charges made thereto. OverEasy will bill your credit card in advance of each Billing Period (as defined below) for the fees incurred for such Billing Period, as well as for any outstanding balances. Your “Billing Period” will be specified in the order at the time of registration, though OverEasy reserves the right to change the term of future Billing Periods at any time. Any and all late payments shall accrue interest at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, whichever is less). In addition, you are responsible for paying any reasonable expenses and attorneys’ fees that OverEasy incurs in connection with collecting late amounts. If a service or additional service (hereinafter for this paragraph, collectively referred to as a "service") is supposed to automatically renew, then because of the steps involved in processing transactions, it is possible that any changes made to or actions taken upon that service on the day that service is supposed to automatically renew or the day after it is supposed to automatically renew, no matter what type of change or action (including, but not limited to, upgrading the service, paying for the service in advance, canceling or terminating the service), that change or action may not be processed successfully. Therefore, Customer shall not make any changes to or take any actions upon a service during the day that service will automatically renew or the day after such date.
c. No Refunds: Upon cancellation or termination of the Products/Service, Customer will not receive a refund for any charges or fees associated with such Products/Service.
9. Term. The term (“Term”) of this Agreement shall be one (1) year commencing on the date that Customer submits Customer's credit card for payment, or other form of payment, for its Customer account, unless otherwise defined in the order. Unless otherwise defined in the order, the Term shall automatically renew for successive annual periods at renewal rates applicable at the time, unless Customer provides notice of non-renewal; provided, however, that to qualify for each renewal, Customer must, at the time of renewal, be in substantial compliance with the material terms and conditions of this Agreement. OverEasy shall have the right, but not the obligation, to review any Company Profile for compliance with the Agreement as part of the renewal process or at any time.
a. Termination/Notice of Non-Renewal: Either party, in its sole discretion, may give notice of non-renewal for the subsequent year of Product or Service with or without cause and without stating any reason therefor. In connection with Customer’s renewal, Customer shall receive a notice of renewal on or about thirty (30) days prior to the commencement of a renewal term. Customer notice of non-renewal must be sent at least five (5) days prior to the end of the current annual period in order to avoid automatic renewal as provided in this Agreement. OverEasy reserves the right to refuse or terminate or suspend Service provided to Customer and/or remove it from OverEasy servers if OverEasy believes, in its sole discretion, that Customer: (i) offers for sale goods or services, or uses or displays Customer Content that is illegal, harmful, obscene, vulgar, offensive, dangerous, or is otherwise inappropriate; (ii) is engaged in activities or sales that may damage the rights of OverEasy or others; (iii) has become the subject of a government complaint or investigation; or (iv) has violated or threatens to violate the letter or spirit of the Directory Listing Policy. Any termination under this section shall take effect immediately, and Customer expressly agrees that it shall not have any opportunity to cure.
b. Waiver: Customer expressly waives any statutory or other legal protection in conflict with the provisions of this section.
c. Deletion of Customer Content: Upon termination, OverEasy reserves the right to delete any and all Customer Content from its servers.
10. Disclosure of Customer Details. Customer agrees that OverEasy may disclose Customer Details in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce the Agreement; (d) to respond to claims that the Customer or the Customer account is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of OverEasy, or others; provided, however, that nothing in this section shall impose a duty on OverEasy to make any such disclosures.
11. Indemnity. Customer agrees to indemnify and hold harmless OverEasy, and its parents, subsidiaries, affiliates, officers, directors, shareholders, managers, employees, assigns, successors, designees, agents, independent contractors, and sublicensees from any claim, demand, action, liability, loss, expense, damage, or cost, including but not limited to reasonable attorneys’ fees, made by any party due to or arising out of Customer's conduct, Customer's use of the Products/Service, any information and/or Customer Content in Customer's account, any content, material or otherwise linked to or referred to from Customer's account, any alleged violation of this Agreement, or any alleged violation of any rights of another, arising from or related to: (a) any breach of the Agreement by you (including, but not limited to, any representations and warranties made herein); (b) any violation of any law or regulation arising from or in connection with your subscription; (c) any allegation arising from or relating to any Customer Content, including, but not limited to, any allegation that any Customer Content infringes or otherwise violates any trademark, trade name, service mark, copyright, license, trade secret, right of privacy or publicity or other intellectual property or proprietary right of any third party, constitutes false advertising, is defamatory and/or is in violation of any law or regulation; (d) any claim by any third party related to you or your products, services, webpages, websites or business; and/or (e) any third-party dispute with you, including, without limitation, any injury suffered by a third party at your place of business or any other related issue. OverEasy reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, but doing so shall not excuse Customer's indemnity obligations.
12. Disclaimer of OverEasy’s Warranties and Liabilities. The Products and Service are provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, or non-infringement. Neither this Agreement nor any documentation furnished hereunder is intended to express or imply any warranty that the Products or Service will be uninterrupted, timely, or error free or that the Products or Service will provide uninterrupted, timely, or error-free service. The security mechanism incorporated in the Products and/or Service has inherent limitations and Customer must determine that the Products or Service adequately meet their requirements. Customer assumes the risk and solely responsible for all damages to its computer system or loss of data that results from the download of any material and/or data through the use of the Product or Service. Customer represents, warrants, and agrees that OverEasy and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents shall not be liable, under any circumstances or legal theories whatsoever, for any loss of business, profits or goodwill, loss of use or data, interruption of business, or for any indirect, special, incidental or consequential damages of any character, even if OverEasy is aware of the risk of such damages, that result in any way from Customer's use or inability to use the Products or Service, or that result from errors, defects, omissions, delays in operation or transmission, the contents of any web pages or web sites, loss of data, computer viruses, communication line failure, destruction, or unauthorized use or access to any web sites or records or Customer Content, or other injury, damage or disruption to Customer or any other failure of performance of any kind whatsoever of OverEasy or the Products or Service. OverEasy's liability to Customer shall not, for any reason, exceed the aggregate payments actually made by Customer to OverEasy over the course of the existing term. Some jurisdictions do not allow the exclusion of certain warranties or liabilities; so, in those cases, some of the above exclusions may not apply to you. Nothing in the marketing or offering of the Products or Service is intended to guarantee any certain results, or to create any inference of a guarantee of certain results, whether sales, marketing, or otherwise.
13. Mutual Confidentiality. The receiving party (“Receiving Party”) may not disclose Confidential Information of the disclosing party (“Disclosing Party”) to any third party or use the Confidential Information in violation of this Agreement. a. “Confidential Information” means all information that is disclosed to a Receiving Party by the Disclosing Party and includes, among other things: (i) any and all information relating to products or services provided by the Disclosing Party, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to OverEasy, the Products and/or Service and the terms of this Agreement, including without limitation, all pricing information. Confidential Information excludes information that: (i) was rightfully in the Receiving Party’s possession without any obligation of confidentiality before receipt from the Disclosing Party; (ii) is or becomes a matter of public knowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a third party without violation of a duty of confidentiality; or (iv) is independently developed by or for the Receiving Party without use or access to the Confidential Information. b. Receiving Party may disclose Confidential Information if required by law, but it will attempt to provide notice to the Disclosing Party in advance to allow it to seek a protective order. Each party acknowledges that any misuse of the other party’s Confidential Information may cause irreparable harm for which there is no adequate remedy at law, and either party may seek immediate injunctive.
14. General Provisions.
a. Policies: Customer’s participation in any subscription shall be subject to all applicable OverEasy policies.
b. Precedence: In case of conflict the order of precedence of the documents constituting this Agreement is as follows, each listed document superseding in the event of any conflicting provision in a later listed document: (1) an order; (2) this Agreement, including any amendments; (3) OverEasy policies and procedures.
c. Non-Assignment. Neither party may assign or transfer this Agreement to a third party, nor delegate any duty, except that the Agreement and all invoices may be assigned, without the consent of the other party, as part of a merger, or sale of all or substantially all of the business or assets, of a party. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect.
e. Survival of Terms and Force Majeure. All terms that by their nature survive termination of this Agreement for each party to receive the benefits and protections of this Agreement, will survive. Neither party is liable for force majeure events (such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, criminal acts, riots, acts of war, acts of government (whether local or national) earthquake, fire and explosions).
f. Governing Law; Arbitration: This Agreement, orders, and any dispute arising from or relating to the Agreement and/or orders or the provision or use of the Service, shall be governed exclusively by, and construed in accordance with the laws of the United States and the State of California, without reference to any conflict of laws principles. If we are unable to resolve any dispute through informal means, either party may initiate binding arbitration according to the JAMS/Endispute Comprehensive Arbitration Rules and Procedures in effect as of the date hereof, including the Optional Appeal Procedure provided for in such rules (the “Arbitration Rules”) in Los Angeles, California, as well as according to Company Policy. Arbitration can decide only the individual dispute and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated, and you waive any right to join claims with those of others in a form of a class action or similar device. The prevailing Party in such action or proceeding shall be entitled to recover from the other Party the actual costs, expenses and reasonable attorneys’ fees.
h. Notices: Customer agrees to OverEasy notifying you through our websites, apps, and contact information you provided to us. If the contact information you provide is out of date, you may miss out on important notices. You agree that we will provide notices to you in the following ways: (1) a notice within the Service or (2) a message sent to the contact information you provided us (e.g., email, mobile number, physical address). You agree to keep your contact information up to date. Notices to OverEasy shall be by electronic mail or in writing and shall be deemed delivered upon confirmed receipt by OverEasy.