This Terms of Service (this “Agreement”), together with any and all Order Forms (as defined below), constitutes a binding agreement between the entity identified in the Order Form (“Customer”) and Demand Local, Inc. (“Demand Local”), and governs Customer’s use of the Services (as defined below). Customer and Demand Local are referred to herein individually as a “Party” and collectively as the “Parties”. In the event of a conflict between the terms and conditions of the applicable Order Form and this Agreement, the Order Form will govern, but only to the extent that the Order Form explicitly states that it is intended to amend this Agreement.
1. SERVICES
1.1 Services. Subject to this Agreement, Customer may access and use the products and services offered by Demand Local and specified in the Order Form (the “Services”) solely for its own internal business purposes during the Term (“Permitted Use”). Customer’s access to, and use of the Services shall be subject to the terms and conditions of one or more order forms to be entered into between Demand Local and Customer from time to time (each, an “Order Form”). The Services may include the management of one or more “Campaigns,” each of which refers to a distinct marketing or advertising initiative managed or executed by Demand Local on behalf of Customer, as described in an applicable Order Form or other written instructions.
1.2 Modifications to the Services. Demand Local may modify and/or update the Services from time to time, so long as such modification(s) do not materially reduce the Services’ performance or capabilities. Demand Local shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer, any of Customer’s Users, or any other third-party may incur as a result of modifications to the Services in accordance with this Section 1.2.
1.3 Users. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Services and for their compliance with this Agreement. Customer will ensure that Users keep their login credentials confidential and will promptly notify Demand Local upon learning of any compromise of User accounts or credentials. As used herein, “User” means anyone that Customer authorizes to use the Services. Users may include, for example, Customer’s and its Affiliates’ employees, consultants, clients, external users, contractors, agents, and third-parties with which Customer does business.
2. FINANCIAL TERMS
2.1 Fees. In consideration for the Services, Customer shall pay to Demand Local the fees set forth in the applicable Order Form (the “Fees”) and any applicable expenses in accordance with this Section 2. If Customer’s payment of the Fees is subject to recurring charges, then Customer hereby consents to Demand Local’s charging Customer’s payment method on record with Demand Local on a recurring basis without requiring Customer’s prior approval for each recurring charge, until termination of this Agreement or the applicable Order Form. Demand Local may update its pricing at any time and reserves the right to correct any errors or mistakes in pricing, provided Demand Local provides written notice (email sufficient) of such increase at least sixty (60) days before taking effect. All Fees and expenses are non-refundable except as expressly set out in this Agreement.
2.2 Payment. In consideration of the rights granted herein, Customer shall pay all Fees within ten (10) days from the invoice date or as otherwise set forth in an Order Form, on terms set forth in an Order Form. Any breach by Customer of this Section 2.2 may result in Customer’s suspension or termination of access to the Services. If the payment method is set as credit card or ACH, Customer agrees to provide and maintain a valid payment method on file at all times during the Term of this Agreement. By submitting payment information, Customer authorizes Demand Local to automatically charge the provided payment method for all Fees incurred under this Agreement. Unless otherwise stated in an Order Form, Customer will be invoiced at the end of each calendar month for Services provided during that month. Customer further agrees to promptly update account and payment information, including email address, payment method and payment card expiration date, so that Demand Local can complete such transactions and contact Customer as needed. Failure to maintain a valid payment method may result in suspension of access to the Services.
2.3 Interest and Taxes. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, and all similar fees levied upon the provision of the Services, excluding only taxes based solely on Demand Local’s income. Customer will indemnify and hold Demand Local harmless from and against any and all such taxes and related amounts levied upon the provision of the Services and any costs associated with the collection or withholding thereof, including penalties and interest.
2.4 Additional Fees; Changes to Budgets. Customer shall pay any additional fees associated with selected products or services that fall outside the scope of an existing Order Form (for example, if Customer wishes to upgrade their subscription plan). If Customer wishes to make any changes to Campaign budgets, such changes must be submitted in writing (email sufficient). Any such written request must clearly identify the Order Form and the specific Campaign(s), the revised budget amount(s), and the effective date of the change. Changes that do not meet these requirements may not be processed. Customer acknowledges that budget changes may result in additional fees, and agrees to pay all fees incurred in accordance with any properly submitted written instructions.
3. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
3.1 Restrictions on Use of the Services. Except as expressly authorized by this Agreement, Customer may not: (a) modify, disclose, alter, translate or create derivative works of the Services (or any components of the foregoing); (b) sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services (or any components of the foregoing); (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code, object code, or underlying structure, ideas, or algorithms of the Services, in whole or in part; (d) use the Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (e) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Laws; (f) interfere with or disable any features, functionality, or security controls of the Services or otherwise circumvent any protection mechanisms for the Services; (g) copy, frame or mirror any part or content of the Services; (h) build a competitive product or service, or copy any features or functions of the Services; (i) interfere with or disrupt the integrity or performance of the Services; (j) attempt to gain unauthorized access to the Services or related systems or networks; (k) disclose to any third-party any performance information or analysis relating to the Services; (l) use the components of the Service or allow the transfer, transmission, export or re-export of such software components or any portion thereof in violation of any export control Laws administered by the U.S. Commerce Department, the Office of Foreign Assets Control (OFAC), or any other government agency; (m) remove, alter or obscure any proprietary notices in or on the Services, including any copyright notices; (n) access the Services through automated or non-human means, whether through a bot, script or otherwise; or (o) cause its personnel or any third-party to do any of the foregoing. Customer will use its best efforts to prevent unauthorized access to, and use of, any passwords, and will immediately notify Demand Local in writing of any unauthorized use that comes to Customer’s attention. Notwithstanding anything to the contrary in this Agreement, Demand Local may temporarily suspend or permanently revoke Customer’s access to the Services if Demand Local determines or reasonably suspects that Customer has or intends to violate, or has assisted others in violating or preparing to violate, any provision of this Section 3 (any such temporary suspension, a “Service Suspension” and any such revocation, a “Service Revocation”). Demand Local shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any third-party may incur as a result of a Service Suspension or Service Revocation, and Customer shall not be entitled to any refunds of any Fees on account of any Service Suspension or Service Revocation. Any breach by Customer of any provision of this Section 3 shall be an incurable material breach and will entitle Demand Local to terminate this Agreement and any Order Forms immediately pursuant to Section 11.1(i).
3.2 Customer Responsibilities. Customer shall be solely responsible for: (a) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services; (b) maintaining the security and accuracy of Customer’s infrastructure, equipment, accounts, passwords (including but not limited to administrative and user passwords) and files; (c) providing Demand Local and its personnel with support and system access needed to perform the Services; (d) its use of the Services, and ensuring that such use complies with all applicable Laws; (e) all Customer Content and all information, instructions, and materials provided by or on behalf of Customer in connection with the Services; and (f) all acts and omissions of Users in connection with their use of the Services.
3.3 Generative AI. The Parties acknowledge that Demand Local may incorporate generative artificial intelligence tools or technologies (“Generative AI Tools”) into the Services. By using the Services, Customer agrees to the following terms regarding the use of such Generative AI Tools:
3.3.1 Inputs provided to the Generative AI Tools by or on behalf of Customer as part of the Services may be processed to generate outputs (the “Outputs”).
3.3.2 Customer is solely responsible for any use of the Outputs generated by the Generative AI Tools, including any distribution, publication, or reliance on the Outputs, and for ensuring such use complies with all applicable Laws, including, but not limited to, intellectual property, advertising, anti-discrimination, and data privacy laws.
3.3.3 Demand Local makes no representations or warranties regarding the originality, accuracy, non-infringement, or fitness for a particular purpose of any Outputs. All Outputs are provided “as is,” and Customer assumes all risk associated with their use.
3.3.4 To the extent Customer enables any third-party access to the Generative AI Tools or their Outputs, Customer shall be solely responsible for complying with all applicable Laws in connection with such access or use, including, without limitation, providing any required disclosures, notices, or consents, and complying with any obligations relating to transparency, fairness, accountability, intellectual property, privacy, or consumer protection. Demand Local shall have no responsibility or liability for such compliance, and shall have no obligation to disclose the use of Generative AI Tools unless explicitly required by law.
4. CONFIDENTIALITY
4.1 Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on, or after the Effective Date) that is marked “Confidential” or “Proprietary” or with similar designation by the Disclosing Party, or that otherwise should reasonably be deemed to be confidential based on the context and nature of the information. Confidential Information includes, but is not limited to, computer programs in source and/or object code, technical drawings, algorithms, know-how, prototypes, models, samples, formulas, processes, ideas, inventions (whether patentable or not), discoveries, methods, strategies and techniques, research, development, design details and specifications, financial information, procurement and/or purchasing requirements, customer lists, information about investors, employees, business or contractual relationships, sales and merchandising data, business forecasts and marketing plans, and similar information.
4.2 Obligations. The Receiving Party shall maintain in confidence the Confidential Information during the term of this Agreement and for a period of two (2) years thereafter, and will not use such Confidential Information except as expressly permitted in this Agreement; provided, however, that any trade secrets shall be treated confidentially for so long as such information qualifies for protection as a trade secret under applicable law. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, and only if such directors, officers, employees and/or contractors are bound by confidentiality obligations with respect to such Confidential Information no less restrictive than the non-disclosure obligations contained in this Section 4.2. The Parties agree that Customer Data (as defined below) shall be considered Customer’s Confidential Information and the terms and conditions of this Agreement will be treated as Confidential Information of both Parties and will not be disclosed to any third-party; provided, however, that each Party may disclose the terms and conditions of this Agreement (a) to such Party’s legal counsel, accountants, banks, financing sources and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, or (c) in connection with an actual or proposed merger, acquisition, or similar transaction.
4.3 Exceptions. Notwithstanding anything to the contrary herein, Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement and through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by applicable Laws or by a subpoena or order issued by a court of competent jurisdiction or other governmental authority (each, an “Order”), but solely on the conditions that the Receiving Party, to the extent permitted by applicable Laws: (i) gives the Disclosing Party written notice of the Order promptly after receiving it; and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Order and seek a protective order or other appropriate relief. In the event of any dispute between the Parties as to whether specific information is within one or more of the exceptions set forth in this Section 4.3, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
4.4 Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Generally. Except as specified in Section 5.3, no provision of this Agreement shall be construed as an assignment or transfer of ownership of any copyrights, patents, trade secrets, trademarks, or any other intellectual property rights (collectively, “Intellectual Property Rights”) from either Party to the other.
5.2 Services. Demand Local shall own and retain all right, title and interest in and to: (a) the name, logo, trademarks, and service marks (collectively, “Marks”) associated with its business; (b) the Services; (c) all improvements, enhancements and modifications to the Services; (d) any work products or deliverables resulting from any Services provided to Customer under this Agreement (except for any work products or deliverables that are expressly set forth in an Order Form to be owned by Customer); and (e) all Intellectual Property Rights related to any of the foregoing. Demand Local reserves all rights in and to the Services not expressly granted to Customer in this Agreement. Except for the rights expressly granted in this Agreement, nothing in this Agreement grants to Customer or any third-party, by implication, waiver, estoppel, or otherwise, any right, title, or interest in or to the Services.
5.3 Feedback. If Customer or any of its Users submits written suggestions or recommended changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, the “Feedback”), Demand Local is free to use such Feedback regardless of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Demand Local, on Customer’s behalf and on behalf of its Authorized Users and/or agents, all Intellectual Property Rights in and to the Feedback, for any purpose whatsoever, although Demand Local is not required to use any Feedback.
5.4 Use of Customer Marks. Customer shall own and retain all right, title and interest in and to the Marks relating to Customer’s business and all Intellectual Property Rights related thereto. Notwithstanding the foregoing, Demand Local shall have the right to use the Customer’s Marks for (i) the provision of the Services, to the extent necessary and (ii) promotional purposes on its website and marketing materials solely to refer to Customer as a customer of Demand Local. Demand Local will comply with Customer’s written guidelines for trademark usage provided in writing and reasonably in advance.
6. DATA
6.1 Ownership of Customer Data. All Customer Data (as defined below) shall belong to Customer, provided that Demand Local shall have the right to access, use, and process such Customer Data to provide the Services to Customer during the term of this Agreement. Customer acknowledges and agrees that Customer is solely responsible for any and all Customer Data that is input into the Services by Customer, including such Customer Data’s legality, accuracy, reliability, and appropriateness.
6.2 Anonymized Data. Customer acknowledges and agrees that Demand Local may anonymize and aggregate Customer Data in a manner that it can no longer reasonably be used to identify individuals (“Anonymized Data”). Customer grants Demand Local and its affiliates, an unlimited, perpetual, and irrevocable license to use the Anonymized Data for the purpose of improving the Services, to understand and analyze trends across Demand Local’s customers, and for any other purpose.
6.3 Employee and Third-Party Data. Customer acknowledges that, as part of its use of the Services, Customer may transmit their own personal data, the personal data of its employees or other personnel, and/or the personal data of third-parties (collectively, the “Personal Data”). To the extent Customer transmits or inputs any Personal Data through or into the Services, Customer represents and warrants that it has obtained all legally required consent to capture, collect, display, input, share and transmit such Personal Data into and through the Services.
7. REPRESENTATIONS, WARRANTIES, REMEDIES AND DISCLAIMERS
7.1 Generally. Each Party represents and warrants that (a) it is validly existing and in good standing under the Laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person agreeing to this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms, except to the extent limited under Laws relating to insolvency, bankruptcy, and the like.
7.2 Demand Local’s Representations and Warranties. Demand Local warrants solely to Customer that (a) the Services will materially conform to the specifications set forth in the relevant Order Form at the time of delivery, and (b) any Services performed will be provided in a professional and workmanlike manner, consistent with industry standards. Demand Local does not warrant that the Services will be error-free or uninterrupted. Demand Local’s sole liability and obligation for a material breach of the foregoing warranty will be to use commercially reasonable efforts to promptly repair or replace the Services to correct the breach, and Customer’s sole remedy shall be to terminate this Agreement and applicable Order Form upon written notice and receive a refund of any pre-paid but unused Fees (provided such breach is not cured within thirty (30) days of such notice).
7.3 Customer’s Representations and Warranties. Customer represents and warrants that: (a) Customer will use the Services only in compliance with this Agreement and all applicable local, state, federal and international laws and regulations, rules, orders, and ordinances (collectively, “Laws”); (b) Customer shall not infringe upon any third-party’s Intellectual Property Rights in its use of the Services; (c) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of any and all data, information, or files uploaded, transmitted via, transferred into, and/or used with the Services by or on behalf of Customer, including by its User or a client of Customer, including, without limitation, Personal Data (“Customer Data”); (d) the provision and use of Customer Data as contemplated by this Agreement and the Services does not and will not violate any Customer privacy policy, terms of use, or other agreement to which Customer is a party or any law or regulation to which Customer is subject.
7.4 Disclaimer. THE SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, DEMAND LOCAL DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT DEMAND LOCAL KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE; (D) ACCURACY OR RELIABILITY OF ANY DATA PROCESSED, STORED, OR TRANSMITTED THROUGH THE SERVICES; AND (E) ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE. DEMAND LOCAL DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT DEFECTS WILL BE CORRECTED. DEMAND LOCAL SPECIFICALLY DISCLAIMS ANY WARRANTY RELATED TO THE ACCURACY OR RELIABILITY OF DATA GENERATED BY THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY OF ALL OUTPUT FROM THE SERVICES AND ENSURING COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS. DEMAND LOCAL’S WARRANTIES IN SECTION 7.2 DO NOT APPLY TO ISSUES ARISING FROM THIRD-PARTY PLATFORMS (AS DEFINED BELOW) OR MISUSE OR UNAUTHORIZED MODIFICATIONS OF THE SERVICES. THESE DISCLAIMERS APPLY TO THE FULL EXTENT PERMITTED BY LAW.
7.5 Third-Party Sites and Services. The Services may be integrated with services provided by third-parties (collectively, the “Third-Party Platforms”) as part of the functionality of the Services. Customer understands that Demand Local does not have control over third-parties and that such third-parties are not agents of Demand Local. CUSTOMER ACKNOWLEDGES AND AGREES THAT DEMAND LOCAL MAKES NO REPRESENTATION OR WARRANTY ABOUT, DOES NOT ENDORSE AND WILL NOT BE LIABLE FOR ANY THIRD-PARTY’S PRODUCTS OR SERVICES OR THE INFORMATION PROVIDED BY THIRD-PARTIES, WHETHER THROUGH THE SERVICES OR OTHERWISE. Accordingly, Demand Local is not responsible for Customer’s use of any third-party product or service or any harm or losses arising from or relating to Customer’s use of any third-party products or services. Customer should contact the third-party with any questions about their products and services. Demand Local hereby disclaims and Customer hereby discharges, waives and releases Demand Local and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to Customer’s interactions with such third-parties and their products and services. The Services do not include Third-Party Platforms.
7.6 Security. Taking into account the nature and types of Customer Data, Demand Local will maintain appropriate administrative, physical, and technical safeguards in accordance with industry standard practice to protect and secure the Services and the confidentiality and integrity of Customer Data. Notwithstanding the foregoing, Customer acknowledges and agrees that no method of transmission over the Internet, or method of electronic storage, is completely secure, and Demand Local does not guarantee the absolute security of the Services or Customer Data. Demand Local shall not be liable for any unauthorized access, use, disclosure, or loss of Customer Data to the extent such unauthorized activity is not due to Demand Local’s failure to maintain the safeguards required under this Agreement.
8. INDEMNIFICATION OBLIGATIONS
8.1 Customer Indemnity. Customer, at its sole expense, will defend, indemnify, and hold harmless Demand Local and its affiliates, directors, officers, employees, and agents (“Demand Local Indemnitees”) from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a third-party to the extent arising from or relating to (a) any negligence or willful misconduct by the Customer or any of Customer’s affiliates, directors, officers, employees, Users and Subcontractors (collectively, the “Customer Parties”); (b) any alleged or actual breach of Customer’s representations, warranties and obligations under this Agreement; (c) the use of the Services by the Customer Parties, including without limitation any claim by Customer’s employees or agents related to the use of the Services by Customer Parties; (d) any violation of applicable Laws and Orders by Customer Parties; and (e) its relationships with its Subcontractors.
8.2 Demand Local Indemnity. Demand Local at its sole expense, will defend, indemnify, and hold harmless Customer and its affiliates, directors, officers, employees, and agents (“Customer Indemnitees”) from Losses resulting from any Claims brought by a third-party to the extent arising from or relating to the Services infringing or misappropriating any intellectual property rights of any third-party. In the event of a Claim pursuant to this Section, Demand Local may, at Demand Local’s option and expense (1) obtain for Customer the right to continue to exercise the rights granted to Customer under this Agreement; (2) substitute the allegedly infringing component for an equivalent non-infringing component; (3) modify the Services to make them non-infringing; or (4) if (1), (2), or (3) is not obtainable on commercially reasonable terms, Demand Local may terminate this Agreement, effective immediately, by written notice to Customer. Upon a termination of this Agreement pursuant to the preceding sentence, Customer must cease using the Services and Demand Local will refund the amount Customer paid to Demand Local for the Services for the Term adjusted pro-rata for any period during which the Services were provided to Customer. Demand Local’s indemnification obligations do not extend to the extent that Claims arise from or relate to: (i) any negligent or willful misconduct of Customer Parties; (ii) any combination of the Services (or any portion thereof) by any of the Customer Parties with any equipment, software, data or any other materials, provided that no infringement, misappropriation, or other violation of third-party rights would have occurred without such combination; (iii) any modification to the Services by any of the Customer Parties or any third-party at a Customer Party’s request, provided that no infringement, misappropriation, or other violation of third-party rights would have occurred without such modification; (iv) the use of the Services by any of the Customer Parties in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; (v) the continued use of the Services after Demand Local has provided substantially equivalent non-infringing software or service.
8.3 Procedures. The obligations of each party to indemnify the Demand Local Indemnitees or the Customer Indemnitees pursuant to Section 8 are conditioned upon the Demand Local Indemnitees or the Customer Indemnitees, as the case may be: (a) giving prompt written notice of the Claim to indemnifying party once they become aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will only alleviate indemnifying party’s obligations under Section 8 to the extent that any associated delay materially prejudices or impairs the defense of the related Claims); (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the Demand Local Indemnitees’ or Customer Indemnitees’, as the case may be, prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the Demand Local Indemnitees or Customer Indemnitees); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
9. NON-DISPARAGEMENT
Customer agrees that, at all times, during and after the Term, that it and its employees and agents will refrain from taking any action which is intended, or would reasonably be expected, to harm or disparage Demand Local and/or its products and services, and/or their reputations, or which would reasonably be expected to lead to unwanted or unfavorable publicity to Demand Local and/or its products and services. Customer agrees that a violation of this provision will constitute a material breach of this Agreement, and that, in the event of such breach, Demand Local may, in its sole discretion, immediately suspend or terminate this Agreement and shall have no further obligation to provide any Services under this Agreement, in addition to any other rights or remedies available to it at law or in equity.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (A) NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, OR DATA, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF DEMAND LOCAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EXCEPT FOR BREACHES OF SECTION 4 (CONFIDENTIALITY) OR SECTION 8 (INDEMNIFICATION OBLIGATIONS), OR VIOLATIONS OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO DEMAND LOCAL BY CUSTOMER UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY.
11. TERM, TERMINATION AND EFFECT OF TERMINATION
11.1 Term. The term of the Agreement will commence on the date the applicable Order Form is entered into and, unless otherwise stated in the Order Form, shall continue until terminated by either Party as provided herein (the “Term”). Either party may terminate this Agreement, for any cause or for no cause whatsoever, upon thirty (30) days’ written notice to the other party. In addition, either Party may terminate this Agreement if the other Party: (i) fails to cure any breach of this Agreement within thirty (30) days of the non-breaching Party’s written notice of such breach; (ii) ceases to do business in the ordinary course; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such Party and not dismissed within sixty (60) days.
11.2 Effect of Termination. Upon any termination of this Agreement: (a) Customer’s right to access the Services will immediately cease, (b) Customer shall immediately pay to Demand Local all amounts due and payable up to and through the effective date of termination, and (c) the Receiving Party will, at the option of the Disclosing Party, promptly return to the Disclosing Party or destroy all Confidential Information of Disclosing Party then in the Receiving Party’s possession. Notwithstanding any terms to the contrary in this Agreement, any provision of this Agreement that, by its nature and context, is intended to survive this Agreement (including, without limitation, Customer’s obligation to pay any unpaid Fees and Sections 3 through 12, inclusive) will survive any termination of this Agreement. In no event will termination relieve Customer of its obligation to pay any Fees payable to Demand Local prior to the effective date of termination.
12. GENERAL PROVISIONS
12.1 Entire Agreement. This Agreement, including all exhibits to this Agreement, all of which are incorporated herein by reference, sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.
12.2 Independent Contractors. Neither Party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other Party, and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
12.3 Dispute Resolution. The Parties agree to resolve any dispute, claim or controversy arising out of or relating to this Agreement according to the terms of this Section 12.3. First, the Parties agree to attempt in good faith to resolve the dispute through informal resolution. Second, if the dispute is not resolved through informal resolution, the Parties agree to participate in binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in San Francisco, California. The Parties agree that, in the event of arbitration (or in the event of a lawsuit if this arbitration clause is deemed invalid or does not apply to a given dispute) the prevailing Party shall be entitled to costs and fees (including reasonable attorneys’ fees). Either Party may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described in this Section 12.3. In the event that the dispute resolution procedures in this Section 12.3 are found not to apply to a given claim, or in the event of a claim for injunctive relief as specified in the previous sentence, the Parties agree that any judicial proceeding will be brought in the state courts located in San Francisco, California. Both Parties consent to venue and personal jurisdiction there. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS AGREED TO OTHERWISE BY THE PARTIES, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS.
12.4 Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
12.5 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of applicable Laws or otherwise, without the prior written consent of Demand Local, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Demand Local may assign this Agreement at its discretion. Subject to the foregoing, this Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
12.6 Amendments and Waivers. No failure or delay (in whole or in part) on the part of a Party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by applicable Laws. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. This Agreement may be amended or modified only by a written agreement signed by both Parties. Any such changes shall be effective as of the date mutually agreed upon in writing by the Parties.
12.7 Notices. Any notice made pursuant to this Agreement will be in writing and will be deemed delivered on (a) the date of delivery if delivered personally, (b) five (5) calendar days (or upon written confirmed receipt) after mailing if duly deposited in registered or certified mail or express commercial carrier, or (c) one (1) calendar day (or upon written confirmed receipt) after being sent by email, addressed to Customer at the address or email address on record with Demand Local in Customer’s account information, or addressed to Demand Local at the address or email address set forth in the Order Form, or to such other address or email address as may be hereafter designated by either Party. Any notice to Customer pertaining to an Order Form may be made by Demand Local to the contact listed by Customer for such purpose in the applicable Order Form. Notwithstanding the above, Customer consents to receive electronic communications, and Customer agrees that all agreements, notices, disclosures, and other communications that Demand Local provides to Customer electronically, via email and the Services, satisfy any legal requirement that such communication be in writing. CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY DEMAND LOCAL OR VIA THE SERVICES.
12.8 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
12.9 Force Majeure. Demand Local will not be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, natural disasters (fire, storm, floods, earthquakes, etc.), a pandemic, acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any third-party services, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third-party.
12.10 Construction. This Agreement shall be deemed to be the product of all of the Parties, and no ambiguity shall be construed in favor of or against any one of the Parties.
12.11 U.S. Government Rights. To the extent applicable, the Services is “commercial computer software” or a “commercial item” for purposes of FAR 12.212 and DFARS 227.7202. Use, reproduction, release, modification, disclosure or transfer of the Services is governed solely by the terms of this Agreement, and all other use is prohibited.