Terms of Service
TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between Ideal Directories, Inc., a New York corporation (“Vendor” or “We”) and the individual, corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer” or “You”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s Service (as defined below in Section 1.5) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “AUP” means Vendor’s acceptable use policy currently posted at http://www.idealdirectories.com/acceptable-use-policy.
1.2. “Customer Data” means data in electronic form input or collected through the Service by or from Customer, including without limitation by Customer’s Users.
1.3. “Documentation” means Vendor's standard manual related to use of the Service.
1.5. “Service” means Vendor’s Ideal Directories’ Business Website Directory Software.
1.6. “SLA” means Vendor’s standard service level agreement, currently posted at http://www.idealdirectories.com/service-level-agreement.
1.7. “Subscription Term” is defined in Section 11.1 below.
1.8. “User” means any individual who uses the Service on Customer’s behalf or through Customer’s account or passwords, including but not limited to Customer’s business partners, employees, agents, independent contractors and sales personnel, whether such use has been authorized by Customer or not.
2. THE SERVICE.
2.2. Service Levels. Vendor will provide the remedies listed in the SLA for any failure of the Service listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the Service, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to future invoices only and are forfeit upon termination of this Agreement. Vendor is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
2.3. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Service.
2.4. Service Revisions. Vendor may revise Service features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the Service materially reduces features or functionality of the Service, Customer may terminate this Agreement immediately.
2.5. Transfer of the Service by Customer. Customer may transfer ownership of an account. Customer must send an email to email@example.com to request the transfer of the ownership of an account. In order to prevent fraudulent or accidental ownership transfers, additional security information may be required by Ideal Directories to process the transfer of the ownership of an account. If required by Ideal Directories, until such security information is provided to Ideal Directories to verify your identity, the account will not be transferred to another party. A one-time transfer fee may apply to transfer ownership of an account to a new party. Prior to completing the transfer, Ideal Directories will notify you of the any one-time transfer fee. The account will not be transferred to another party until payment of all outstanding fees, including any one-time transfer fee, have been made in full. After the transfer has been completed, Customer will no longer be responsible for paying any fees in connection with the transferred account. Instead, the new owner will be responsible as of the date that the transfer has been completed.
2.6. Themes. The Service may make available to Customers certain themes, which are intended to be used solely as a basic framework for a business directory website. Themes contain information and content which are have been included for convenience and in some instances, as placeholders. The information and content are not intended for actual use on the Customer’s actual business directory website. Customer agrees and acknowledges that Customer shall be solely responsible for using any themes and reviewing and revising such information and content, as Customer shall determine. Ideal Directories shall not be liable to Customer or any third party in the event that Customer uses in its business directory website information or content that was originally made available to Customer as part of a theme.
2.7. Hosting. Customer agrees and acknowledges that the Service and the Ideal Directories’ website is hosted by a third party provider and that the business directory website developed by the Customer through the use of the Service requires access to the Service and the Ideal Directories infrastructure in order to be operational. Customer further agrees and acknowledges that any business directory website developed by Customer through the use of the Service may not be (i) transferred, ported over or hosted by any company other than Ideal Directories’ third party hosting service provider or (ii) hosted directly by the third party hosting service provider without access to the Service and the Ideal Directories infrastructure. The third party hosting service may only be used to host files, databases, and content either installed by Ideal Directories or by Customer, provided that such files, databases and content are posted, uploaded or otherwise made available by Customer in compliance with this Agreement. No third party applications, files, databases, or content (such as a WordPress, Joomla, phpBB, or any other application) may be installed, saved, posted, uploaded, hosted or otherwise made available at any time. If Ideal Directories discovers an unauthorized third party application, file, database, or other content installed, Ideal Directories may immediately remove such third party application, file, database or content without prior notice to Customer. Further, the installing, saving, posting, uploading, hosting or otherwise making available of such application, file, database or content, may result in the immediate termination of this Agreement, the suspension or disabling of Customer’s access to or use of the Service (or any part thereof), and the removal and discarding of any content within the Service, for any reason. If you have questions about whether or not an item may be installed, saved, posted, uploaded, hosted or otherwise made available, please email Ideal Directories at firstname.lastname@example.org before installing, saving, posting, uploading, hosting or otherwise making available of such application, file, database or content
2.8. Refusal of Service. Ideal Directories, in its sole discretion, has the right to refuse service to current or future users of the Service for any reason at any time.
3. SERVICE FEES.
3.1. Subscription. You are purchasing access to the Service on a subscription basis (a “Subscription”) and you agree to pay a subscription fee (“Subscription Fee”) during the Subscription Term. A Subscription automatically renews until cancelled by you. We will notify you if the price of your Subscription increases and, if required, seek your consent to continue. You will be charged no more than 24 hours prior to the start of the then-current Subscription Term.
3.2. Free Trial, If Applicable. We may offer a free trial to the Service prior to charging your payment method. If we offer a free trial to the Service and you decide to unsubscribe before we charge your payment method, you are required to cancel the subscription before the free trial period ends. If you do not cancel the subscription before the free trial period ends, you will be billed for the plan starting on the day the free trial period ends. Vendor will not be required to refund the Subscription Fee under any circumstances.
3.3. Valid Credit Card Required. You must enter a valid credit or debit card when you purchase your plan and you must always provide us with a valid credit or debit card to be on file in order to keep the Service active. If you do not have a valid credit or debit card on file with us, we may terminate, suspend, and/or disable your account. All fees and charges incurred in connection with your account will be billed to the credit or debit card designated during the registration process or subsequently designated by you to us. If you want to designate a different card or there is a change in credit or debit card validity or expiration date, or if you believe someone has accessed the Service or the Ideal Directories website using your username and password without your authorization, you may change your credit card details by contacting email@example.com and requesting an update to your credit or debit card on file.
3.4. Billing Periods. The Service is billed in advance on a monthly, yearly, or otherwise defined term or period of time basis and is non-refundable. The specific period of time is based on the plan that you select and will be specified in your order. Under no circumstances will Ideal Directories give Customer a refund or credit, including but not limited to instances where Customer does not use the Service or uses the Service during a portion, but not the entirety, of the Subscription Term.
3.5. One-Time Fees. Ideal Directories may charge you one-time (i) set up fee to set up your account, (ii) custom feature fees depending on which options and/or features that you select for a directory and/or (iii) one-time directory fees for each directory that you wish to launch. All fees are specified in your order and are subject to change. We will notify you if the price of any fee increases and, if required, seek your consent to continue.
3.6. Promotions. Promotions, discounts, deals, and/or additional offers may not be applied after a sale or transaction has been completed.
3.7. Taxes, Levies, Processing and Bank Fees. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. In the event that you are delinquent in making payments to Ideal Directories, Ideal Directories may bill you on a daily basis until payment in full of all amounts due to Ideal Directories has been made. You may incur fees, expenses and/or charges relating to or arising from our daily billing practice. You hereby agree and acknowledge that you shall be responsible for any and all fees and/or expenses charged by your merchant processor and/or bank, including but not limited to any and all overdraft fees or expenses, whether or not the same relates to or arises from this daily billing practice.
3.8. Upgrade or Downgrade to Account. For any upgrade or downgrade in your account, your credit or debit card that you provided will automatically be charged the new rate on your next billing cycle. An upgrade to any higher priced plan will immediately bill you for the prorated difference for the current billing cycle. If a plan downgrade causes a credit to your account, this credit will be used toward your next billing(s). This credit will not be refunded. Downgrading your account may cause the loss of features of the Service or capacity. Customer agrees and acknowledges that Ideal Directories is not liable for any such loss.
3.9. Bandwidth and Storage Usage and Rates. Customers are allowed up to 10 gigabytes of free bandwidth usage per month. If you surpass the 10 gigabytes of free bandwidth usage limit per month, Ideal Directories may impose additional charges, rate increases, and/or surcharges. Customers are allowed up to 10 gigabytes of free storage space usage. If you surpass the 10 gigabytes of free storage space usage, Ideal Directories may impose additional charges, rate increases, and/or surcharges. If Ideal Directories imposes additional charges, rate increases and/or surcharges and you do not agree to pay such additional charges, rate increases and/or surcharges, Ideal Directories may limit your ability to access your account, remove, delete or disable features of the Service from your account, delete, remove or disable Customer Data or take such other steps as is necessary to reduce your bandwidth usage and/or storage space usage to within the limits specified above.
3.10. Limitations. Depending on the plan that you select, Ideal Directories may limit the maximum number of categories, listings, members, or customers for any website business directory. If Ideal Directories imposes a limit, Ideal Directories will notify you in advance. If you surpass the maximum number of categories, listings, members and/or customers, Ideal Directories may impose additional charges, rate increases and/or surcharges. If Ideal Directories imposes additional charges, rate increases and/or surcharges and you do not agree to pay such additional charges, rate increases and/or surcharges, Ideal Directories may limit your ability to access your account, remove, delete or disable features of the Service from your account, delete, remove or disable Customer Data or take such other steps as is necessary to reduce the number of categories, listings, members and/or customers.
4. CUSTOMER DATA & PRIVACY.
4.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) will not access, process, or otherwise use Customer Data other than as necessary to facilitate the Service; and (b) will not intentionally grant any third party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties. Customer agrees and acknowledges that Customer shall use the Service at its own risk.
4.4. Data Accuracy. Vendor will have no responsibility or liability for the accuracy of data uploaded to the Service by Customer, including without limitation Customer Data and any other data uploaded by Users.
4.5. Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
4.6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and will not upload or transmit to Vendor's computers or other media, any data intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or other similarly sensitive personal information (“Excluded Data”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN ANY LAW, RULE OR REGULATION INTENDED TO PROTECT THE EXCLUDED DATA OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
4.7. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer will comply with the AUP. Customer will not: (a) use the System in any other way that allows third parties to exploit the Service; (b) provide Service passwords or other log-in information to any third party; (c) share non-public Service features or content with any third party; or (d) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Vendor may suspend Customer’s access to the Service without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor the AUP requires that Vendor take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Vendor is free to take any such action it sees fit.
5.2. Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Customer will notify Ideal Directories immediately of any known or suspected unauthorized use of the Service or breach of its security and will use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the Service, Customer will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4. Users & Service Access. Customer is responsible and liable for: (a) Users’ use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the Service through Customer’s account, whether authorized or unauthorized.
5.5. Payment Processing. The Service currently supports an integration with Stripe (a payment processor). As long as integration with Stripe continues to be supported, you may be able to view on the dashboard certain statistics, financial information, sales information or other information generated and reported by Stripe. Customer agrees and acknowledges that (i) Ideal Directories is not the Customer’s merchant processor, (ii) Ideal Directories is not responsible for the accuracy or completeness of such information and (iii) any issues relating to or arising from merchant processing must be resolved directly by Customer and its merchant processor. Ideal Directories may, but is not obligated to, support integration with other merchant processors. The Customer may not use the Ideal Directories’ integration with Stripe (or any other supported merchant processor) to process payments for services and products not supported by the Service. For services and products not supported by the Service, Customer shall be required to process payments directly through the merchant processor’s processing system.
5.6. Customer’s Website Business Directories. Customer agrees and acknowledges that Customer is responsible for managing and operating all aspects of its own website business directories, including but not limited to managing payment transactions with its merchant processor and/or its own customers. If Customer cancels the Service or this Agreement is terminated or expires, Customer agrees and acknowledges that Customer shall be solely responsible for cancelling its merchant processing and/or agreements with its own customers. Ideal Directories cannot and shall not be liable for any loss or damage from Customer’s failure to manage and/or operate its own website business directories, including but not limited to issues arising from or relating to the management of payment transactions with Customer’s merchant processor and/or its own customers, including but not limited to payment transactions occurring after the cancellation of the Service or the termination or expiration of this Agreement. Pursuant to Section 9 herein, Customer shall indemnify and hold harmless Ideal Directories for any claims brought by Customer’s merchant processor and/or its own customers.
6. IP, FEEDBACK AND RIGHT TO PUBLISH.
6.2. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)
6.3. Right to Use and Publish. Customer hereby grants to Ideal Directories the right to use and publish photographic and/or electronic reproductions of any and all business directory website(s) developed by Customer through the use of the Service, without any exceptions. Without limiting the foregoing, Ideal Directories shall have the right to use and publish photographic and/or electronic reproductions of any and all business directory website(s) developed by Customer through the use of the Service, at Ideal Directories’ discretion, including but not limited to on Ideal Directories’ website, in connection with Ideal Directories’ social media activities, and in connection with Ideal Directories’ marketing, advertising and/or promotional materials, programs, campaigns and activities.
6.4. Infringement on Customer’s Intellectual Property Rights. If another customer, user, member or the customer of any customer, user or member infringes on Customer’s intellectual property rights to material that Customer provides to, uploads to, or otherwise makes available through the Service, including but not limited to Customer’s domain name, ideas, content (including but not limited to videos, audio recordings, file attachments, and written text), business models, communications, or recipients, Customer agrees and acknowledges that Ideal Directories assumes no liability, damages, interest, fault, and provides no warranty against such infringement. Further, Customer hereby waives any right to pursue any claim, demand, suit or proceeding against Ideal Directories in connection with such infringement. Further, pursuant to Section 9 herein, Customer shall indemnify and hold harmless Ideal Directories for any claims relating to or arising from such infringement.
7. CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items Vendor discloses to Customer: (a) any document Vendor marks “Confidential”; (b) any information Vendor orally designates as “Confidential” at the time of disclosure, provided Vendor confirms such designation in writing within 5 business days; (c) the Documentation, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.
7.1. Nondisclosure. Customer will not use Confidential Information for any purpose other than in connection with the use of the Service to develop business directory websites (the “Purpose”). Customer: (a) will not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) will not disclose Confidential Information to any other third party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer will promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer will give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.
7.2. Injunction. Customer agrees that breach of this Article 7 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Vendor will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above will terminate at such point in time when such Confidential Information is no longer confidential and has become publically known; provided that such obligations related to Confidential Information constituting Vendor’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer will return all copies of Confidential Information to Vendor or certify, in writing, the destruction thereof.
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made: (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS & WARRANTIES.
8.1. From Vendor. Vendor represents and warrants that it is the owner of the Service and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor’s representations and warranties in the preceding sentence do not apply to use of the Service in combination with hardware or software not provided by Vendor. In the event of a breach of the warranty in this Section 8.1, Vendor, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the Service; (b) replace or modify the Service to make it non-infringing; or (c) terminate the infringing features of the Service. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the Service.
8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Service; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.3. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, CUSTOMER ACCEPTS THE SERVICE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
8.4. No Financial Representations. Customer agrees and acknowledges that: (a) no representation, promise or warranty has been made by Vendor (or any of Vendor’s employees, agents or salespersons) and relied on by Customer as to any future, past or anticipated income, expenses, sales volume or potential profitability, or earnings arising from the use of the Service or relating to the Customer’s use of the Service; and (b) neither Vendor nor any of Vendor’s employees, agents or salespersons have guaranteed to Customer or have made any representations, promises or warranties to Customer that Customer will (i) earn any income, profit or earnings or (ii) make any sales, in connection with or through the use of the Service.
9. INDEMNIFICATION. Customer will defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Service, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the Service through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
10. LIMITATION OF LIABILITY.
10.1. Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100.00.
Exclusion of Consequential Damages. UNDER NO CIRCUMSTANCES WILL IDEAL DIRECTORIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) CONTENT ON ANY THEMES OR OTHER CONTENT PROVIDED TO CUSTOMER BY IDEAL DIRECTORIES; (C) CUSTOMER CONTENT AND CUSTOMER DATA; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY IDEAL DIRECTORIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF IDEAL DIRECTORIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL IDEAL DIRECTORIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF IDEAL DIRECTORIES’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY IDEAL DIRECTORIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY IDEAL DIRECTORIES. BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.
10.2. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 10 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. Term, Termination & Suspension of Service.
11.1. Subscription Term. The term of this Agreement (the “Subscription Term”) will commence on the Effective Date and continue for such period of time as specified in your order. Thereafter, the Subscription Term will renew automatically for successive terms of the same duration as the initial Subscription Term specified in the order, unless terminated by either party, as provided for herein, before the renewal date of the then-current Subscription Term.
11.2. Termination by Customer. You may terminate this Agreement at any time by cancelling the Subscription. TO CANCEL YOUR SUBSCRIPTION, YOU MUST SEND AN EMAIL EXPRESSING YOUR INTENT TO CANCEL TO SALES@IDEALDIRECTORIES.COM WITH YOUR FULL NAME, SITE LINK URL, AND THE LAST 4 DIGITS OF THE CREDIT OR DEBIT CARD THAT IS ASSOCIATED WITH YOUR ACCOUNT. Upon verification of this information, your account will be canceled within 3-5 business days, regardless of whether or not your Subscription Term has expired. You may not request termination of this Agreement by phone or any other communication and we will not honor such a request. If you terminate this Agreement, you will no longer have access to the Service or any Customer Data. We may, but are not required to, implement additional security procedures to protect you from falsified cancellations. If such additional security is implemented, until we can verify that your cancellation request is valid, your account will remain active.
11.3. Termination for Cause. We may terminate this Agreement for your material breach by written notice. Such notice will specify in detail the nature of the breach and will be effective in 5 days, or more if specified in the notice, unless you first cure the breach. Notwithstanding the above, Customer agrees that Vendor, in its sole discretion, has the right (but not the obligation) to delete or deactivate Customer’s account, block Customer’s email or IP address, or otherwise terminate, suspend or disable Customer’s access to or use of the Service (or any part thereof), immediately and without notice, and remove and discard any content within the Service, for any reason, including, without limitation, (i) if Vendor believes that Customer have breached this Agreement, including but not limited to a failure to pay fees to Ideal Directories when due, as provided for herein, (ii) using the Service for illegal purposes, or (iii) using the Service to post illegal content. Further, Customer agrees that Vendor shall not be liable to Customer or any third-party for any termination of Customer’s access to the Service. This provision shall survive termination of this Agreement.
11.4. Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the Service and delete, destroy, or return all copies of the Documentation in its possession or control. Upon termination of the Agreement, you will no longer have access to the Service or any Customer Data. We may, in our sole discretion, delete all of your Customer Data upon termination of this Agreement. Once deleted, there is a possibility that Customer Data may not be retrieved. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6, 7, 8.3, 9, and 10; and (c) any other provision of this Agreement that must survive to fulfill its essential purpose. Vendor will not be required to refund the Subscription Fee under any circumstances.
11.5. Reactivation. In the event that your account is terminated or cancelled for any reason, you may request reactivation of your account provided that you have made all required payments to Ideal Directories and have cured any outstanding defaults under this Agreement. If you request reactivation of your account, Ideal Directories may, but is not obligated to, reactivate your account and in certain circumstances, reactivation may or may not be possible. If Ideal Directories is able to reactivate your account, Ideal Directories may charge you a reactivation fee in an amount to be provided to you prior to reactivation.
11.6. Credit Card Payment Dispute. If a credit or debit card dispute is opened for a payment made for the Service, or if a scheduled payment for the Service is stopped, cancelled or disputed, we may terminate, suspend or disable your account immediately and access to the Service will be cancelled, suspended or disabled. In the event of a credit or debit card dispute, access to the Service will only be restored once one of the following occurs: (a) your merchant provider has provided due notification that the credit or debit card dispute has been resolved in full; and (b) the full amount of the disputed credit or debit card charges plus any other fees due and/or any additional fees incurred by Ideal Directories as a result of the credit or debit card dispute has been paid in full.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to firstname.lastname@example.org, and such notices will be deemed received 72 hours after they are sent.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of New York, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts located in the County of New York, State of New York. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.10. Technology Export. Customer will not: (a) permit any third party to access or use the Service in violation of any U.S. law or regulation or if Customer is located outside of the United States, then such Customer shall not permit any third party to access or use the Service in violation of the laws or regulations of the country in which the Customer is located; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Service in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.