MBA ENTERPRISES U.S., LLC TERMS & CONDITIONS
dba NEW YORK CAPITAL LOCAL SEO
Terms and Conditions
(Last Updated August 19,2015)
This Service Agreement (this “Agreement”) is a legal agreement between MBA Enterprises U.S., LLC, a New York corporation (“MBA Enterprises U.S., LLC”, “us” or “we”), and the business by which the individual accepting this Agreement is employed or otherwise engaged (the “Client” or “you”). MBA Enterprises U.S., LLC and Client are each referred to herein as a “Party,” and collectively as the “Parties.” This Agreement, together with any other applicable terms and conditions referenced herein, governs in its entirety the relationship between MBA Enterprises U.S., LLC and the Client in connection with the MBA Enterprises U.S., LLC service or services for which Client has purchased a subscription (the “Services”).
1. Services.
1.1 Local Power Listing Service Subscriptions. If you have purchased a subscription for MBA Enterprises U.S., LLC’s Local PowerListings Listings service (the “ Local PowerListingService”), you will be provided with the ability to place and synchronize your enhanced business listings (“Local PowerListings”) across multiple business directory and search web sites and mobile apps (the “Service Partner Sites”) of third parties that participate in the version of the PowerListings Service you subscribe to, as determined by MBA Enterprises U.S., LLC from time to time (the “Service Partners”).
1.2 Additional Services. If you have purchased a subscription to any of MBA Enterprises U.S., LLC’s service offerings other than the Local PowerListings Service (the “Additional Services”), the definition of “Service Partners” and “Service Partner Sites” shall be deemed to include third parties that participate in such Additional Service and their online properties, respectively.
1.3 Limitations. Client acknowledges and agrees that (i) all content submitted for any Service shall be subject to the Service Partners’ character limits, quality standards and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Service Partner at any time in its sole discretion, or modified at any time to comply with such policies, (ii) MBA Enterprises U.S., LLC does not guarantee that any Local PowerListing or other content will be displayed on any Service Partner Site and (iii) the appearance and/or location of any Local PowerListing or other content placement may change at any time. MBA Enterprises U.S., LLC SHALL HAVE NO LIABILITY FOR THE AVAILABILITY OF OR ANY CHANGE IN THE SERVICE PARTNER SITES, FOR ANY DECISION BY A SERVICE PARTNER TO REJECT OR MODIFY ANY CONTENT SUBMITTED BY CLIENT, OR FOR ANY OTHER DECISION, CHANGE OR OTHER ACTION DESCRIBED IN CLAUSES (i), (ii) OR (iii) OF THE PRECEDING SENTENCE.
2. Fees and Payment.
2.1 Fees. By registering for a Service, you agree to any fee and payment terms that are described herein and/or during the online registration process for such Service. Any Service fees are exclusive of any sales or other taxes (other than taxes on MBA Enterprises U.S., LLC income).
2.2 Provision of Credit Card Information; Payment Terms. You will be required to provide MBA Enterprises U.S., LLC with a valid credit card number upon registration for each Service. You hereby warrant and represent that you have the authority to provide such credit card information to MBA Enterprises U.S., LLC and shall be responsible for all changes made thereto. MBA Enterprises U.S., LLC will bill your credit card in advance of each Billing Period (as defined below) for the fees incurred for such Billing Period, as well as for any outstanding balances. Your “Billing Period” will be specified by MBA Enterprises U.S., LLC at the time of registration for the Service, though MBA Enterprises U.S., LLC reserves the right to change the term of future Billing Periods at any time. Any and all late payments shall accrue interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by law, whichever is less). In addition, you are responsible for paying any reasonable expenses and attorneys’ fees that we incur in connection with collecting late amounts.
2.3 Automatic Renewal. MBA Enterprises U.S., LLC WILL AUTOMATICALLY RENEW EACH OF YOUR SERVICE SUBSCRIPTIONS AND CHARGE YOUR CREDIT CARD AT THE BEGINNING OF EACH SUBSCRIPTION RENEWAL PERIOD, SO LONG AS YOUR SERVICE SUBSCRIPTION HAS NOT BEEN CANCELLED. The automatic charge to your credit card will occur at the commencement of each Service subscription renewal. You acknowledge that the amount billed each year may vary for reasons such as promotional rates no longer being applied, changes in your Service subscription (for example, changes in the number of your locations for which you are purchasing Services), changes in the amount of applicable sales tax or other reasons; and you authorize us to charge your credit card for such varying amounts. MBA Enterprises U.S., LLC may also periodically preauthorize your credit card in anticipation of account or related charges.
3. Use of the Service.
3.1 License. MBA Enterprises U.S., LLC hereby grants Client a limited, non-exclusive, non-transferable right and license to access and use each Service solely in connection with Client’s legitimate business needs. This license will terminate in the event the applicable Service subscription is not renewed or this Agreement is terminated pursuant to Section 4, in which case Client will immediately cease any further use of the Service.
3.2 Ownership. The Service is the copyrighted work of MBA Enterprises U.S., LLC and/or its various third party licensors and partners.
3.3 Trademarks. The trademarks, service marks, logos and any designs used or displayed on the Service are trademarks and/or service marks owned by MBA Enterprises U.S., LLC or its licensors. Nothing in this Agreement shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any MBA Enterprises U.S., LLC trademark displayed on the Service without MBA Enterprises U.S., LLC’s prior, written permission in each instance. The appearance of any third-party trademarks does not in any way imply any connection, license, approval or other such relationship of any kind with such third party.
3.4 Usage Restrictions. Client’s use of the Service is limited solely to those rights granted in Section 3.1. Client shall not copy, prepare derivative works, decompile or reverse engineer the Service. Client will not remove any trademark, copyright, or other proprietary rights notices which appears on the Service. In addition, Client will not use the Service for any unlawful or fraudulent purpose including, but not limited to: (a) impersonating any person or entity, (b) harvesting or collecting any personal information in violation of applicable law or (c) promoting any product, service or business that is unethical, obscene or in violation of any applicable law or regulation.
3.5 License to Client Content. Client hereby grants MBA Enterprises U.S., LLC a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of MBA Enterprises U.S., LLC business), perpetual, irrevocable right and license to use, copy, publish, distribute, syndicate, reformat and update (for example, to improve accuracy and/or standardize formats) any and all listing content and other content that is provided by or on behalf of you in connection with your use of the Services. MBA Enterprises U.S., LLC may sublicense this right to any Service Partners and other online partners. This license will survive any termination or expiration of this Agreement.
4. Term and Termination
4.1 Term. This Agreement is effective as of the date you register for a Service and shall remain in full force and effect until terminated by either party in accordance with this Section 4.
4.2 Termination by Client. Client may terminate this Agreement and disconnect some or all of your Services at any time for convenience upon notice to MBA Enterprises U.S., LLC (which may be provided by email).
4.3 Termination by MBA Enterprises U.S., LLC. We may terminate this Agreement and disconnect some or all of your Services at any time for convenience at any time upon notice (which we may provide by email).
4.4 Survival. Upon any termination or expiration of this Agreement, Client will pay MBA Enterprises U.S., LLC any Fees due and payable prior to the effective date of such expiration or termination. The following provisions shall survive any termination of this Agreement: Section 3.5 (“License to Client Content”), this Section 4.4 (“Survival”),Section 5 (“Disclaimer and Limitation of Liability”), Section 6 (“Indemnification”), Section 7 (“Representations and Warranties”), Section 8 (“Special Terms for Yext Sync for Facebook Service”) (to the extent applicable) and Section 9 (“General Provisions”).
5. Disclaimer and Limitation of Liability. THE SERVICES AND ANY OTHER SERVICES PROVIDED BY MBA Enterprises U.S., LLC IN CONNECTION WITH THIS AGREEMENT ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, MBA Enterprises U.S., LLC MAKES NO, AND DISCLAIMS ALL, WARRANTIES (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR OTHERWISE. MBA Enterprises U.S., LLC AND OTHER WEBSITES, DATABASES AND/OR THIRD PARTY PROGRAMS CONTAINED WITHIN THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. MBA Enterprises U.S., LLC HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF, OR INABILITY TO USE, MBA Enterprises U.S., LLC WEBSITES, DATABASES AND/OR PROGRAMS. MBA ENTERPRISES U.S., LLC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS, PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF MBA Enterprises U.S., LLC WEBSITE, DATABASES AND/OR PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT SHALL MBA ENTERPRISES U.S., LLC OR ANY SERVICE PARTNER BE RESPONSIBLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF MBA Enterprises U.S., LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MBA Enterprises U.S., LLC WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT, AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND MBA ENTERPRISES U.S., LLC’S CONTROL. IN ADDITION, AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, MBA ENTERPRISES U.S., LLC’S LIABILITY UNDER ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO $500. TO THE EXTENT ANY LIABILITY OF MBA ENTERPRISES U.S., LLC CANNOT BE DISCLAIMED, EXCLUDED OR LIMITED UNDER APPLICABLE LAW, SUCH LIABILITY SHALL BE DISCLAIMED, EXCLUDED AND LIMITED TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
6. Indemnification. Client will defend, indemnify, and hold harmless, MBA Enterprises U.S., LLC, its third party licensors and Service Partners, and its affiliates, and each of its and their respective officers, directors, members, managers, employees, sublicensees, contractors and agents (collectively, “Indemnified Parties”) from and against any and all claims, actions, losses, liability, damages, fines, costs, and expenses (including reasonable attorney’s fees and expenses) arising from or related to: (a) any breach of the Agreement by you (including, but not limited to, any representations and warranties made herein); (b) any violation of any law or regulation arising from or in connection with your participation in the Services; (c) any allegation arising from or relating to any Client Content, including, but not limited to, any allegation that any Client Content infringes or otherwise violates any trademark, trade name, service mark, copyright, license, trade secret, right of privacy or publicity or other intellectual property or proprietary right of any third party, constitutes false advertising, is defamatory and/or is in violation of any law or regulation; (d) any claim by any third party related to you or your products, services or business; and/or (e) any third party dispute with you, any injury suffered by a third party at your place of business or any other related issue.
7. Representations and Warranties. You represent, warrant and covenant that at all times during the term of this Agreement:
(a) the individual accepting this Agreement is authorized to act on behalf of you and to bind you to this Agreement;
(b) you have the full power and authority to conduct your business, to enter into this Agreement, and to perform your obligations under this Agreement;
(c) your execution, delivery and performance of this Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which you are subject; (ii) any order, judgment or decree applicable to you; (iii) any provision of your organizational documents; or (iv) any agreement or other instrument applicable to you; and
(d) you will comply with all applicable federal, state and local laws, rules, regulations, court orders, judgments and decrees.
8. Special Terms for Yext Sync for Facebook Service. If you have purchased a subscription for the “Yext Sync for Facebook” Service (the “Yext Sync for Facebook Service”), you hereby agree to, and agree to comply with (and to ensure that all content that you provide to Yext with respect to the Yext Sync for Facebook Service complies with) Facebook’s then-current “Statement of Rights and Responsibilities” (currently located at http://www.facebook.com/legal/terms) and any other applicable terms and conditions and policies of Facebook (collectively, the “Facebook Terms”). Any actual or alleged failure of you, or of any of your content, to comply with the Facebook Terms will constitute a material breach of this Agreement, and Yext will have the right to immediately suspend provision of the Facebook Sync Service until such failure is cured by you and/or, if directed by Facebook, to terminate the provision of the Yext Sync for Facebook Service to you. In addition to your indemnity obligations set forth elsewhere in this Agreement, you will defend, indemnify and hold harmless the Indemnified Parties from and against any and all claims, actions, losses, liability, damages, fines, costs, and expenses (including reasonable attorney’s fees and expenses) arising from or related to any asserted breach of the Facebook Terms by you and/or the content of any of your Facebook pages.
9. General Provisions.
9.1 Confidentiality. You may not disclose the terms or conditions of this Agreement any third party, except to your professional advisors under a strict duty of confidentiality or as necessary to comply with applicable laws or regulations.
9.2 Promotional Materials. During the term of this Agreement, MBA Enterprises U.S., LLC may use Client’s name and logo for the purpose of referring to Client as a MBA Enterprises U.S., LLC client on MBA Enterprises U.S., LLC website and in its other promotional materials.
9.3 Notices. All notices to MBA Enterprises U.S., LLC shall be sent to MBA Enterprises U.S., LLC. at 565 Randall Rd. Ballston Spa, NY 12020, attention President. Any notices to Client may be effected by sending an email to the email address specified by Client during the Service registration process (or to such updated email address as may be specified by Client on its account settings page on the Service website), and shall be deemed received when sent. Client is responsible for ensuring that a current and accurate email address is on file with MBA Enterprises U.S., LLC at all times.
9.4 Policies. Client’s participation in the Service shall be subject to all applicable MBA Enterprises U.S., LLC policies including, without limitation, the Privacy Policies posted on any Web Site on which Client listings are published, and any applicable Web Site specification requirements (collectively, “Policies”). The Policies may be modified by MBA Enterprises U.S., LLC at any time. The latest Policies can be found on any of MBA Enterprises U.S., LLC websites. You should review the Policies regularly. By your continued participation in a Service, you agree to all of the associated terms and conditions contained within the Policies effective at that time.
9.5 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, the affected Party’s performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
9.6 Waiver. The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party.
9.7 No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to imply or constitute either Party as the agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
9.8 Governing Law and Forum. This Agreement, and any disputes arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without regard to its choice of law provisions. Each of the Parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in New York County, New York for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts.
9.9 Entire Agreement; Amendment. This Agreement (together with any other applicable terms and conditions referenced herein) constitutes the entire agreement between the Parties with regard to the subject matter hereof. MBA Enterprises U.S., LLC may modify the terms of this Agreement at any time without liability, and your use of the Service after notice that the terms of this Agreement have changed constitutes your acceptance of the new terms.
9.10 Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
9.11 Costs, Expenses and Attorneys’ Fees. If either Party commences any action or proceeding against the other Party to enforce or interpret this Agreement, the prevailing Party in such action or proceeding shall be entitled to recover from the other Party the actual costs, expenses and reasonable attorneys’ fees (including all related costs and expenses), incurred by such prevailing Party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.