TERMS AND CONDITIONS
1. Agreement. This application will become a Contract between Surge Web Design LLC thereafter referred to as “Publisher,” and “Advertiser” as represented by the Signer of this document, only when signed by Advertiser 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 Advertiser 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 except by written agreement signed by all parties hereto. By signing this document, the Signer represents that he or she has authority to act in behalf of Advertiser, and that he or she personally guarantees the conditions agreed to in this Contract, to include payment of all sums due.
2. Advertisement Copy. Upon execution of this Contract or not less than 30 days prior to the Scheduled Publication Date, whichever comes later, Advertiser will submit all design work as well as logos, pictures, graphics, etc. to be used to produce the advertisements. If not received in a timely manner, Publisher is obligated to include in the publication, at a minimum, the Advertiser’s name, address and phone number. Publisher retains the right to reject any advertising content for any reason.
3. Intellectual Property Rights; Permits and Licenses; Indemnification. Advertiser represents and warrants that it is duly authorized to engage in the business or profession described by the yellow page headings designated on the face of this Contract, and that it has the rights to all Trademarks, Logos, Trade Names, Pictures, Graphics or other materials submitted for use in the advertisements or has express permission to use said items. Advertiser will notify Publisher in writing if Advertiser should cease to have any such right. Advertiser agrees to indemnify and hold Publisher (and its employees, affiliates and agents) harmless from all liability, claims, demands, suits or causes of action, 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 Advertiser’s breach or alleged breach of the previously stated representations and warranties or out of any other false representations made by Advertiser in advertisement. Advertiser assumes sole responsibility for the protection of its intellectual property rights in all Trademarks, Logos, Trade Names, writings, pictures, graphics and other content in its ad. All original advertising artwork prepared in connection with the Contract is the exclusive property of Publisher and may not be used by Advertiser without the prior written consent of Publisher. Advertiser agrees that Publisher may assign this contract with or without notice to Advertiser. In the event Publisher does assign this Contract, Advertiser agrees that its sole remedy is against the Assignee and not against Publisher.
4. Yellow Page Headings and Placement. Publisher does not guarantee placement location for display or in-column ads. Publisher reserves the right to change any yellow pages classification headings that are shown on the face of this Contract in order to maintain standardized headings that will best serve the purpose of the directory.
5. Proofs and Revisions. Publisher agrees to exercise reasonable care that the advertising copy and listings are correctly printed in each directory issue. As a courtesy to Advertiser and only if time permits, Publisher may send a proof of display and in-column ads to Advertiser via email, the internet, fax, mail, or any other available means. Upon receipt of advertisement proof, Advertiser may submit one change request free of charge to Publisher. Publisher reserves the right to charge design fees for any changes made in addition to the complimentary change request granted in this paragraph. Publisher must receive all change requests a minimum of sixty (60) days prior to each directory publication. If proof is sent to Advertiser and Advertiser does not return the proof to Publisher within the timeframe set forth on the proof page, it is mutually understood and agreed that the proof shall be assumed to be correct.
6. Advertising Content. The Advertiser’s name, address and telephone number shown on the face of this Contract are the criteria for correctness of advertising in each directory. Publisher is not responsible for name, address, and/or telephone number changes made by Advertiser. It is Advertiser’s responsibility to inform Publisher in writing of any change in name, address, and/or telephone number at least sixty (60) days prior to the publication of each directory. In the event of a change in Advertiser’s name, address, and/or telephone number after execution of this Contract, the Contract shall remain in force.
7. Limitation of Liability. ADVERTISER AGREES THAT UNDER NO CIRCUMSTANCES SHALL PUBLISHER, ITS EMPLOYEES, AFFILIATES, OR AGENTS BE LIABLE FOR ANY ERRORS OR OMISSIONS IN IT’S ADVERTISING SERVICES BEYOND THE DISCOUNTED (IF APPLICABLE) AMOUNT PAID BY ADVERTISER FOR THE ITEM OR ITEMS OMITTED, OR IN WHICH ERRORS OCCUR. 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 CONTRACT OR A TORT, AND REGARDLESS OF THE LEGAL OR EQUITABLE ACTION WHICH MIGHT BE BROUGHT AGAINST THE PUBLISHER, ITS EMPLOYEES, AFFILIATES, OR AGENTS. UNDER NO CIRCUMSTANCES SHALL PUBLISHER, ITS EMPLOYEES, OR ITS AGENTS BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES RESULTING FROM SUCH ERRORS OR OMISSIONS.
No refunds will be considered or applied on free items marked “N/C” on the face of this Contract, or that are free after the Contract’s discounts are taken into account. No refunds will be considered or applied for variations or errors in color. Each item shall receive reimbursement independent of any other item. For example, an error in a main phone number in a listing shall warrant full reimbursement of the price of that listing only and shall have no effect on monies spent for other ads and listings purchased by Advertiser. Under no circumstances will Advertiser be refunded an amount in excess of the amount actually paid by Advertiser under the Contract.
8. Heirs, Successors and Assigns. This Contract shall be binding upon all Advertiser’s heirs, successors and assigns. Any credit offered by Publisher to Advertiser is non-transferrable. If Advertiser 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.
9. Legal Jurisdiction and Venue. In the event of a legal dispute, Advertiser 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.
10. Payment Terms, Credit and Delinquent Accounts. Advertiser agrees to all payment terms outlined on the face of this Contract and to pay all state and local taxes attributable thereto. This application and Contract may be subject to credit approval, and Signer hereby authorizes Publisher to check credit histories of Advertiser and Signer with credit reporting agencies and further authorizes any such agency to provide Publisher with credit information about Signer and/or Advertiser. Interest of 1 ½ (one and one half) percent per month or 18 percent per annum will be charged to Advertiser on overdue accounts. In addition, Advertiser agrees to pay a $5.00 monthly statement fee for each month that payment is delinquent. A $20 service charge, or the largest amount of money recoverable by law, will be charged to Advertiser for all returned and/or dishonored checks. If Advertiser’s account becomes over 30 days past due, Publisher has the right to make all listing, display and payment discounts become null and void, and the total “Full Retail Value” of the Contract will become the new Contract price. In that case, the remaining unpaid balance of the “Full Retail Value” becomes immediately due and payable. Advertiser also agrees to pay all collection-related costs incurred by Publisher, including but not limited to statement fees, collection agency fees, attorney fees, court costs, etc. In case of non-payment by Advertiser, the Signer of this Contract will be personally responsible for payment of the outstanding balance of the Contract and any additional charges accrued as set forth in this paragraph. Advertiser acknowledges and agrees that the total Contract price is due and payable upon execution of this Contract. In the event Advertiser does not provide payment in full upon execution of this Contract, Publisher may extend credit to Advertiser, and Advertiser agrees to pay according to the payment terms noted on the face of this Contract. The parties agree that if Advertiser fails or refuses to make any payment and Advertiser’s account becomes over 30 days past due, Publisher may commence a law suit against Advertiser for all amounts due and payable hereunder notwithstanding Publisher has yet to publish all ads described on the face of this Contract. Advertiser hereby waives and gives up any defense or claim that the entire Contract price is not due and payable until all ads described on the face of this Contract have been published.
11. Counterparts. This Contract may be executed and delivered in counterparts, and all such counterparts shall constitute the same instrument. Advertiser agrees that an authentic copy or electronic reproduction of this Contract shall have the same force and effect as an original counterpart.
12. 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.
13. 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.
Surge Web Design: ADDITIONAL TERMS AND CONDITIONS Advertiser
1. Incorporation of Terms. These additional terms and conditions for Surge Web Design are hereby incorporated into the terms and conditions of the Contract between the Publisher and Advertiser. In the event there shall be any conflict between these terms and conditions and those set forth in the Contract, these terms and conditions shall be controlling. Publisher reserves the right to amend these additional terms and conditions at any time and to publish such amended terms and conditions on Publisher’s website www.surgewebdesign.com to give notice of the amendment to Advertiser.
2. Services. a. Website. Publisher shall create a website (“Website”) for Advertiser and may purchase or transfer a URL/Domain Name for Advertiser as well. Publisher shall maintain Website for Advertiser for as long as the Contract remains in force. Advertiser 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, Advertiser must choose from a Publisher-provided list of URLs/Domain Names before that time. If the URL/Domain Name has not been agreed upon by that time, Advertiser acknowledges that Publisher cannot put the Website online without it and that Advertiser’s failure to choose one of these URLs/Domain Names may result in delays beyond Publisher’s control, during which time Advertiser will still be obligated to pay Publisher the monthly maintenance fee. Once Publisher has acquired a URL/Domain Name for the Website, Advertiser 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 Advertiser 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 Advertiser’s information and Website on one or more of the following major sites: Google, Facebook, Yelp, and Apple Maps. Advertiser expressly authorizes Publisher to add or change Advertiser’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 Advertiser directly. Publisher will make up to three contact attempts to Advertiser to obtain necessary information and to give Advertiser necessary instructions. If at that time the claim/verification process is unsuccessful, it will be up to the Advertiser to reach out to the third-party sites for further action. Advertiser 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. Advertiser assumes all responsibility for faulty information given by Advertiser to Publisher
or to third-party sites and for its failure to respond to Publisher or third-party sites. Advertiser 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 Advertiser’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 Advertiser or the data provided by the Advertiser, Publisher will refund Advertiser’s payment for its listing on that specific third-party directory.
c. Listings Management. Publisher shall attempt to list the Advertiser’s information and Website on various sites other than those listed above in Section 2.b. and then shall manage those listings for Advertiser thereafter. Advertiser expressly authorizes Publisher to add or change Advertiser’s basic listing information and website on these sites in accordance with each site’s individual terms and conditions. Though direct Advertiser involvement with the third party sites should be unnecessary for this service, Advertiser hereby expressly assumes the responsibilities and liabilities stated in Section 2.b. of these Additional Terms and Conditions in association with any request from a third-party Internet directory to involve the Advertiser in the claiming/verification process. It is Advertiser’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 Advertiser’s website.
3. Payment. Advertiser 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.
4. Latency. Advertiser understands that any information or data provided by Advertiser 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. Advertiser Content, Proofs, and Revisions. Not more than 30 days following the execution of this Contract, Advertiser will submit all content requested by Publisher, including but not limited to Advertiser information, logos, pictures, graphics, etc. (collectively “Advertiser Content”) to be used to produce the Website and/or third-party listings. If Advertiser Content is not received within that time period, Publisher is obligated to include in the Website or Listings which it can claim without the Advertiser’s direct assistance, at a minimum, the Advertiser’s name, address and phone number. Publisher retains the right to reject or revise any Advertiser 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 Advertiser. It is Advertiser’s responsibility to inform Publisher directly in writing of any changes to the Advertiser Content in the Website or Listings. Advertiser 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. Advertiser maintains sole and exclusive liability for all Advertiser Content. Publisher is not responsible for returning Advertiser files, documents or other items provided by Advertiser.
6. Advertiser Warranties; Indemnification; Intellectual Property Rights. Advertiser 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 Advertiser Content, Website, and/or listings, that the Advertiser 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 Advertiser 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. Advertiser will notify Publisher in writing if Advertiser should cease to have any such right. Advertiser 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. Advertiser 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 Advertiser’s use of the Services, Website, or advertising of the Website, or Advertiser’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. Advertiser 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 Advertiser Content. Except for Advertiser Content and Third-Party-provided 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 Advertiser’s Website in marketing and promotional materials and on Publisher’s website, and Advertiser 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 Advertiser 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. ADVERTISER 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 ADVERTISER FOR THE MAINTENANCE FEES FROM THE MONTH
IN WHICH PUBLISHER IS MADE AWARE OF THE ERROR BY ADVERTISER 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 ADVERTISER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS ADVERTISER MAY HAVE UNDER THE CONTRACT.
8. 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 Advertiser 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.
9. Availability of Services. Publisher shall use commercially reasonable efforts to attempt to provide the Services, including access to Advertiser’s Website, in a manner that will not interrupt Advertiser’s business. However, Publisher does not guarantee Website or Listings accessibility on a continuous and uninterrupted basis. Advertiser 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. Advertiser agrees that Publisher is not liable for these interruptions in Website availability.
10. 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 Advertiser if, in Publisher’s sole discretion, the Services are used by Advertiser 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 Advertiser’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 Advertiser’s product or service. Publisher may, in its sole discretion, suspend or terminate Advertiser’s Services and take down Advertiser’s Website without notice if Advertiser 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 Advertiser’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. Advertiser 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 Advertiser’s early cancellation. Notice to Publisher shall be delivered by to Impact Directories, 1251 North Cole Road, Boise, Idaho 83704. Notice to Advertiser shall be delivered to the billing address written on the face of this Contract, or in the absence of a billing address, to the address under the heading “Listing Information” on the face of this Contract. In the absence of either, Publisher shall send notice of termination to the Advertiser’s last known address in the Publisher’s records.