TERMS AND CONDITIONS


 
1. Agreement. This application will become a Contract between Surge Web Design LLC thereafter
referred to as “Publisher,” and “Client” as represented by the Signer of this document, only when signed
by Client and accepted by Publisher. Publisher reserves the right to refuse any application. This
Contract constitutes the entire agreement between the parties as to the subject matter hereof and
supersedes any other verbal or written agreements between Client and Publisher, with respect to the
subject matter hereof. No agent or employee of Publisher has the authority to alter any of the terms of
this Contract. This Contract cannot be changed, altered, or cancelled by Client except by written
agreement signed by all parties hereto. Publisher reserves the right to amend these terms and
conditions at any time and to publish such amended terms and conditions on Publisher’s website
https://www.surgewebdesign.com/terms-and-conditions to give notice of the amendment(s) to Client.
By signing this document, the Signer represents that he or she has authority to act in behalf of Client.
2. Client Content, Proofs, and Revisions. Not more than 30 days following the execution of this Contract,
Client will submit all content requested by Publisher, including but not limited to Client information,
logos, pictures, graphics, etc. (collectively “Client Content”) to be used to produce the Website and/or
third-party listings. If Client Content is not received within that time period, Publisher is obligated to
include in the Website or Listings which it can claim without the Client’s direct assistance, at a minimum,
the Client’s name, address and phone number. Publisher retains the right to reject or revise any Client
Content for any reason and to make changes and updates to the Website or Listings which it deems
necessary without gaining prior approval of the Client. It is Client’s responsibility to inform Publisher
directly in writing of any changes to the Client Content in the Website or Listings. Client will be allowed
up to six changes to the Website and up to 12 changes to its listings for the listings management service
each year from the date of signing and will be charged $40.00/hour for any additional change request.
Client maintains sole and exclusive liability for all Client Content. Publisher is not responsible for
returning Client files, documents or other items provided by Client.
3. Services.
a. Website. Publisher shall create a website (“Website”) for Client and may purchase or transfer a
URL/Domain Name for Client as well. Publisher shall maintain Website for Client for as long as the
Contract remains in force. Client maintains exclusive responsibility for conducting copyright and/or
trademark searches associated with the chosen URL/Domain Name prior to its purchase. In order to get
the Website up and running 30 days from the time of signing, Client must choose from a Publisherprovided
list of URLs/Domain Names before that time. If the URL/Domain Name has not been agreed
upon by that time, Client acknowledges that Publisher cannot put the Website online without it and that
Client’s failure to choose one of these URLs/Domain Names may result in delays beyond Publisher’s
control, during which time Client will still be obligated to pay Publisher the monthly maintenance fee.
Once Publisher has acquired a URL/Domain Name for the Website, Client agrees to pay the purchase
price for it and acknowledges that this amount may not be refunded or exchanged for another
URL/Domain Name under any circumstances. Upon termination of this Contract, Publisher will transfer
the URL/Domain Name to Client as long as all amounts owing to Publisher, including URL/Domain Name
transfer fees, are paid to Publisher.
b. Claiming Major Listings. Publisher shall attempt to list the Client’s information and Website on one or
more of the following major sites: Google, Facebook, Yelp, and Apple Maps. Client expressly authorizes
Publisher to add or change Client’s basic listing information and website on these or other sites in
accordance with each directory’s individual terms and conditions. Though Publisher will initiate this
process, listings must in some cases be claimed and/or verified by Client directly. Publisher will make up
to three contact attempts to Client to obtain necessary information and to give Client necessary
instructions. If at that time the claim/verification process is unsuccessful, it will be up to the Client to
reach out to the third-party sites for further action. Client agrees to promptly fill out, sign and return any
form which Publisher or one of these sites may provide to facilitate this purpose and agrees to be
responsive to Publisher’s instructions and available to receive verification calls directly from third-party
sites. Client assumes all responsibility for faulty information given by Client to Publisher or to third-party
sites and for its failure to respond to Publisher or third-party sites. Client acknowledges that, due to the
third-party nature of this service and changing technologies, policies, and requirements from these sites,
Publisher may not be able to add or change Client’s listings in some or any of these sites, and that
Publisher assumes no liability for its failure to do so. Nevertheless, if Publisher’s failure to do so depends
solely on third-party sites and their changing technology, policies, or requirements and not on any fault
or failure of the Client or the data provided by the Client, Publisher will refund Client’s payment for its
listing on that specific third-party directory.
c. Listings Management. Publisher shall attempt to list the Client’s information and Website on various
sites other than those listed above in Section 3.b. and then shall manage those listings for Client
thereafter. Client expressly authorizes Publisher to add or change Client’s basic listing information and
website on these sites in accordance with each site’s individual terms and conditions. Though direct
Client involvement with the third party sites should be unnecessary for this service, Client hereby
expressly assumes the responsibilities and liabilities stated in Section 3.b. of these Terms and Conditions
in association with any request from a third-party Internet directory to involve the Client in the
claiming/verification process. It is Client’s responsibility to update its Internet listings or to contact
Publisher to update its Internet listings if any information is not a current and accurate description of
information available on Client’s website.
4. Latency. Client understands that any information or data provided by Client to Publisher may not be
processed on a real-time basis and may be subject to the latency of the Internet, the Publisher systems,
and the network of third party partners and search engines.
5. Payment Terms, Credit and Delinquent Accounts. Client agrees to all payment terms outlined on the
face of this Contract, including but not limited to the initial set-up fee, any URL/Domain Name purchase
and/or transfer prices and fees, a monthly maintenance fee, and to pay all state and local taxes
attributable these Services. This application and Contract may be subject to credit approval, and Signer
hereby authorizes Publisher to check credit histories of Client and Signer with credit reporting agencies
and further authorizes any such agency to provide Publisher with credit information about Signer and/or
Client. A $20 service charge, or the largest amount of money recoverable by law, will be charged to
Client for all returned and/or dishonored checks or ACH payments. If Client’s account becomes over 30
days past due, Publisher has the right to take down or discontinue hosting or maintaining Client’s
website or other products or services purchased until such time as Client shall bring its payments
current again. Client agrees to pay according to the payment terms noted in the package selected on
the face of this Contract.
6. Client Warranties; Indemnification; Intellectual Property Rights. Client represents and warrants that
any information or data it (or its agents or representatives) has submitted or will submit is and will be
both accurate and complete, that it is the authorized owner or representative of the website(s) for
which search listings are requested, that it is duly authorized to engage in the business or profession
described in the Client Content, Website, and/or listings, that the Client Content is not defamatory,
libelous, slanderous or threatening and that it is and will be free of any viruses, worms, bots or other
computer programming routines that may damage, interfere with, intercept or expropriate any system
data or personal information, and that Client has the rights to all URLs/Domain Names, Trademarks,
Logos, Trade Names, Pictures, Graphics or other materials submitted for use in the Website or has
express permission to use said items. Client will notify Publisher in writing if Client should cease to have
any such right. Client maintains sole and exclusive responsibility for the above items, and to continue to
ensure that the Website conforms to these representations and warranties and to all local, state and
Federal laws. Client agrees to indemnify and hold Publisher (and its employees, affiliates and agents)
harmless from all liability, claims, demands, suits or causes of action, whether with or without merit and
whether or not partially attributable to the negligence of Publisher, and will pay all attorneys fees and
other expenses incurred by Publisher in the defense thereof, which arise from Client’s use of the
Services, Website, or advertising of the Website, or Client’s breach or alleged breach of this Contract,
including any breach of the previously stated representations and warranties or out of any other false
representations made in the listings, Website, or advertising of the Website. Client assumes sole
responsibility for the protection of its intellectual property rights in all Trademarks, Logos, Trade Names,
writings, pictures, graphics, URL/Domain Name and other content in its Website and to include any
copyright or trademark notices along with its Client Content. Except for Client Content and Third-Partyprovided
Content, all works of any kind, designed, developed, created or procured by Publisher for the
Website or maintenance of the Website will remain the sole and exclusive property of Publisher.
Publisher shall have the right to display Client’s Website in marketing and promotional materials and on
Publisher’s website, and Client hereby grants Publisher a perpetual, royalty-free, non-exclusive right and
license to copy, record, modify, display, publish, perform, prepare derivate works based on and
distribute Client Content in any media in order to accomplish this purpose.
7. DISCLAIMER AND LIMITATION OF LIABILITY. PUBLISHER MAKES NO REPRESENTATION, WARRANTY OR
GUARANTEE, EXPRESS OR IMPLIED, CONCERNING THE WEBSITE OR SERVICES, EXCEPT AS PROVIDED
HEREIN. PUBLISHER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICLULAR
PURPOSE. CLIENT AGREES THAT UNDER NO CIRCUMSTANCES SHALL PUBLISHER, ITS EMPLOYEES,
AFFILIATES, OR AGENTS BE LIABLE FOR ANY ERRORS OR OMISSIONS IN THE WEBSITE BEYOND THE
AMOUNT PAID BY CLIENT FOR THE MAINTENANCE FEES FROM THE MONTH IN WHICH PUBLISHER IS
MADE AWARE OF THE ERROR BY CLIENT UP UNTIL THE MONTH THE ERROR IS REMEDIED. THIS
LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF HOW THE ERROR OR OMISSION WAS CAUSED
OR AROSE, REGARDLESS OF WHETHER THE ERROR OR OMISSION SHALL CONSTITUTE A BREACH OF
CONTACT OR A TORT, AND REGARDLESS OF THE LEGAL OR EQUITABLE ACTION WHICH MIGHT BE
BROUGHT AGAINST THE PUBLISHER, ITS EMPLOYEES, AFFILIATES, OR AGENTS, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. UNDER NO CIRCUMSTANCES SHALL PUBLISHER, ITS EMPLOYEES, OR ITS AGENTS BE
LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR OTHER DAMAGES
RESULTING FROM SUCH ERRORS OR OMISSIONS. REMEDIES SET FORTH IN THIS PARAGRAPH SHALL BE
CLIENT’S SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS CLIENT MAY HAVE UNDER THE CONTRACT.
8. Search Engine Rankings. Publisher does not guarantee placement or rankings for any website or other
products offered.
9. Force Majeure. Publisher shall not be liable for any default or delay in the performance of any of its
obligations under this Contract due to forces, whether direct or indirect, which occur beyond Publisher’s
reasonable control, including without limitation acts of God, labor disputes, acts of war or terrorism,
fire, flood, accidents, interruptions of transportation or communication, supply shortages, power
outages or the failure of Client or any third party to perform any commitment relating to the production
or delivery of any site, software, material, or information required for Publisher to perform this
Contract’s obligations.
10. Availability of Services. Publisher shall use commercially reasonable efforts to attempt to provide the
Services, including access to Client’s Website, in a manner that will not interrupt Client’s business.
However, Publisher does not guarantee Website or Listings accessibility on a continuous and
uninterrupted basis. Client acknowledges and agrees that from time to time the Website or Listings may
be inaccessible or out of operation due to various reasons, including but not limited to excessive
network traffic, maintenance or repairs by Publisher, equipment failures, or interruption of
telecommunications or digital transmission link. Client agrees that Publisher is not liable for these
interruptions in Website availability.
11. Term and Suspension or Termination of Services. The term of this Contract shall begin and become
effective as of the date identified on the top or the sign date on the bottom of the face of this Contract
(whichever is later). Publisher hereby expressly reserves the right to deny, terminate, or suspend
Services without notice to Client if, in Publisher’s sole discretion, the Services are used by Client in a way
that violates or appears to violate any custom, use, practice, rule, law, regulation, or Publisher Policy,
and Publisher reserves the right to reject, alter, modify or remove Client’s Website, Website
URL/Domain Name or any Website content which Publisher in its sole discretion deems illegal,
pornographic, obscene or offensive, in violation of an intellectual property right, or stating or implying
that Publisher endorses Client’s product or service. Publisher may, in its sole discretion, suspend or
terminate Client’s Services and take down Client’s Website without notice if Client breaches any
provision of the Contract or of these Additional Terms and Conditions. In the absence of the above
conditions, either party may still terminate this Contract for any reason or no reason whatsoever upon
30 days signed, written notice delivered by certified mail to the other party, subject to an early
cancellation fee for Client’s cancellation of any of the Services prior to the minimum term for such
Service as set forth in this Contract. The minimum term of Service for each of the Services currently
offered by Publisher is as follows: Website—3 months; Listings Management—12 months. Client agrees
that if it cancels a Service prior to its minimum term, it will be charged an early cancellation fee of two
hundred and fifty dollars ($250), along with all third party charges or fees incurred by Publisher as a
result of Client’s early cancellation. Notice to Publisher shall be delivered by email to
info@surgewebdesign.com. Notice to Client shall be delivered to the address written on the face of this
Contract. In the absence of either, Publisher shall send notice of termination to the Client’s last known
address in the Publisher’s records.
12. Heirs, Successors and Assigns. This Contract shall be binding upon all Client’s heirs, successors and
assigns. Any credit offered by Publisher to Client is non-transferrable. If Client sells or assigns its
business, then this Contract shall be considered as part of the sale and/or assignment of that business,
and the amount of monies remaining due on the Contract shall be immediately paid out of the proceeds
of the sale.
13. Legal Jurisdiction and Venue. In the event of a legal dispute, Client and Publisher consent to the
jurisdiction of Idaho courts and Idaho laws, and that Ada County, Idaho is the proper venue for any
action relating to this Contract, brought by either party.
14. Counterparts. This Contract may be executed and delivered in counterparts, and all such
counterparts shall constitute the same instrument. Client agrees that an authentic copy or electronic
reproduction of this Contract shall have the same force and effect as an original counterpart.
15. Severability. In the event any part of this Contract is determined by a court of competent
jurisdiction to be void, then the void part of this Contract shall be considered to be severable from the
remaining provisions of the Contract and the remaining provisions of this Contract shall remain in full
force and effect.
16. Section Headings. The Section Headings in the Terms and Conditions of this Contract are for
convenience of reference only and shall not effect the construction or interpretation thereof.