VERSION 3.0 (Last updated November 20, 2009)
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These Standard Terms and Conditions, along with the registration form (the "Registration Form") attached to these Standard Terms and Conditions, constitute an agreement (the "Agreement") between Cox Search, Inc. ("CSI") and the participant identified on the Registration Form ("Participant").
1. Payment : Participant will pay CSI the amounts (if any) specified on the Registration Form in accordance with the payment terms specified in such Registration Form. Amounts paid after the due date will bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if lower). Participant will pay any taxes imposed on the publication of the Listings and/or Participant's use of the services provided by CSI under this Agreement (the "Services"). For purposes of this Agreement, "Listings" means any listings and promotional or informational materials for Participant included in CSI's online search service. CSI may change any fees to be paid by Participant by providing thirty (30) days written notice (which may, in CSI's discretion, be sent by email, mail or fax) to Participant. Participant may terminate this Agreement following receipt of a notice of an increase in fees by providing written notice to CSI, via email sent to CSI's email address specified on the Registration Form, within ten (10) days after the date that Participant receives such written notice. Such termination will be effective as of the date that the new fees would have become effective.
1.(A) Special Terms Regarding Profile Services
(a) Purchasing a Profile listing on our Service offers great value at favorable rates and wide exposure for Participant's business as well as significant advantages that improve the chances of a consumer noticing Participant's business offering. CSI therefore cannot generally offer refunds on fees arising from Profiles.
(b) CSI will provide a refund of Profile fees only if Participant mistakenly orders and pays for a duplicate Profile and, upon prompt discovery by Participant, seeks to cancel and obtain a refund for the fees associated only with such duplicated Profile(s). CSI cannot provide a refund on the original Profile. Likewise, CSI cannot provide a refund for any duplicate Profiles if Participant fails to cancel such duplicate Profile(s) within forty five (45) days from the date Participant placed the order for such duplicative Profile(s).
(c) Except for the instance covered under subsection (b) above, CSI cannot provide a refund for any other reason, even if Participant wants to cancel a Profile immediately after placing an order. For example, CSI cannot provide a refund if Participant (i) changes its mind about purchasing a Profile; (ii) is displeased with the content, features or enhancements associated with a Profile; (iii) makes a mistake in submitting content for a Profile; or (iv) receives few or no inquiries or offers to purchase Participant's goods or services after ordering a Profile. Likewise, CSI cannot provide a refund if CSI made mistakes with a Profile's content. In cases where such mistakes are made, CSI will, of course, make appropriate corrections to the Profile once Participant brings such mistakes to CSI's attention.
(d) If Participant makes mistakes in submitting content for a Profile, CSI will assist Participant in making minor corrections to such Profile. No charge will be assessed for such minor corrections unless Participant wishes to order additional Services or, in CSI's reasonable judgment, such corrections amount to significant changes to Participant's current Profile(s), in which cases additional charges will be assessed at CSI's then-current rates. If Participant wishes to discontinue its Profile(s) and revert to a less expensive or alternate Service, CSI will reasonably accommodate such requests; provided, however, that CSI cannot refund or reallocate any fees attributable to any such Profiles.
(e) Participant agrees that all cancellation requests contemplated or otherwise called for under this Subsection 1.(A) must be submitted to and received by CSI through Participant's use of the online cancellation form available through the following link: https://register.kudzu.com/login.do?sectionForward=244. Cancellation requests issued to CSI under this Subsection 1(A) (including requests provided to CSI's directors, officers, sales staff or customer support personnel) through any means other than the Profile Cancellation Request Form (e.g., email, voicemail, fax, overnight courier, U.S. mail, etc.) shall have no force and effect on CSI or Participant under this Agreement or otherwise. Submission to CSI of any non-conforming cancellation request(s) will not relieve Participant of its obligation to complete and submit a Profile Cancellation Request Form.
2. Scheduling/Positioning/Right to Reject/No Resale: Though CSI will consider positioning requests, the positioning and scheduling of Listings is at CSI's discretion. Participant acknowledges that CSI makes no guarantees with respect to usage statistics, levels of impressions, or readership or viewership levels for any Listings. CSI reserves the right to edit, reject or cancel any Listing or position commitment at any time. In addition, CSI may reject any URL link embedded in any Listing. Participant may not broker any listing or resell, assign or transfer any of its rights or obligations under this Agreement.
3. Agencies: If Participant uses an advertising agency in connection with any Listing, Participant and such agency will be jointly and severally liable under this Agreement. The person or entity signing this Agreement warrants that it is duly authorized and has the full power to bind Participant, and agrees to indemnify and hold CSI, its affiliates and the officers, directors, employees and representatives of each of these, harmless from any and all claims, losses, damages and costs (including reasonable attorneys' fees) arising out of any breach of this warranty. Participant will be solely responsible for any commission due any agency.
4. Creative Services/Ownership/License: If the Agreement contemplates that CSI will provide creative services in connection with the development of any of the Listings, then such services will be subject to CSI's creative capacity and will be provided in accordance with reasonable professional standards, but otherwise on an "as-is" basis. Participant acknowledges that CSI may obtain information relating to Participant from third party sources for inclusion in CSI's online services in proximity to the Listings (the "Third Party Participant Information"), including, but not limited to, information regarding whether Participant is a member of the Better Business Bureau. CSI will own all rights in all Third Party Participant Information and all materials and other content that is furnished by CSI. Participant will not authorize the reproduction or use of any such material in any medium without CSI's prior written consent. Participant hereby grants CSI a perpetual, non-exclusive, royalty-free, worldwide license to use or distribute, in any media for any purpose, any information that Participant provides to CSI in the Listings or through CSI's registration process (including, but not limited to, information provided by Participant on the Registration Form and Participant's fax number) (the "Participant Information"). Notwithstanding the foregoing, with respect to Confidential Participant Information, Participant grants CSI a perpetual, non-exclusive, royalty-free, worldwide license to use the Confidential Participant Information solely in connection with CSI's performance of its obligations under this Agreement and the provision of, and billing for, the Listings. "Confidential Participant Information" means the following non-public information (if any) provided by Participant to CSI: Participant's social security numbers, tax identification numbers, credit card numbers, bank account numbers and bank account routing information.
5. User Feedback: Participant acknowledges and agrees that users of CSI's online services may be given the opportunity to provide reviews and/or feedback relating to Participant and its products or services; that some of such reviews and feedback may be positive, while other such reviews and feedback may be negative; that CSI cannot and does not review all such reviews and feedback, nor does CSI have any control over such reviews and feedback; and that under no circumstances shall CSI be held responsible or liable for any claims or damages arising out of any reviews or feedback.
6. Trademark License: Participant grants CSI a non-exclusive, royalty-free license (with a right to sublicense) to use or distribute Participant's trademarks, service marks and logos (the "Participant Marks") in connection with the performance of CSI's obligations under this Agreement. Should Participant find objectionable any use of the Participant Marks by CSI, then Participant may revoke or suspend, with respect to the objectionable use, CSI's rights to use the Participant Marks and CSI will promptly cease using the applicable Participant Marks in the manner found objectionable by Participant (except as otherwise permitted by law).
7. Term/Termination: The term of this Agreement will begin on the date indicated in the Registration Form and, unless terminated earlier in accordance with this Agreement, will continue for 6 months (semi-annually) or 12 months (annually), automatically renewing at the end of each such period specified in the Registration Form. This Agreement will automatically renew for successive terms of the same duration as the initial term, unless either party notifies the other, in writing, of its decision not to renew at least thirty (30) days prior to the end of the then-current term. Notwithstanding anything to the contrary in this Agreement, CSI may terminate this Agreement at any time by providing thirty (30) days written notice to Participant. Upon termination of this Agreement, all amounts due under this Agreement that accrued on or before the termination date will become immediately due and payable. Except as otherwise provided in Section 1, this Agreement is not cancelable by Participant.
8. Participant Representations; Indemnification: Participant represents and warrants that the Listings, the Participant Marks, the Participant Information, the Participant Materials and all other materials provided by Participant (a) will not violate any applicable law, rule or regulation (including, but not limited to, any law relating to false or deceptive advertising), (b) will not be libelous and (c) will not infringe any right of any third party, including, but not limited to, any contractual right, copyright, trademark or trade secret right or any right of privacy or publicity. Participant will indemnify, defend and hold CSI, its affiliates and the officers, directors, employees and representatives of each of these harmless against any and all claims, expenses, losses and costs of any kind (including reasonable attorneys' fees) incurred by them in connection with (x) any breach or alleged breach by Participant of this warranty or any other provision of this Agreement, (y) any Listings, Participant Materials, the Participant Information and/or Participant Marks, and/or (z) any actions of Participant.
9. Provision of Listing Materials: Participant will, at Participant's expense, provide copy and other materials necessary for the Listings (the "Participant Materials") in accordance with CSI's policies in effect from time to time. CSI may dispose of any such materials unless acceptable prepaid return arrangements have previously been made. Participant is solely responsible for obtaining all necessary licenses for the use of the Participant Materials.
11. DISCLAIMER; LIMITATION OF LIABILITY: CSI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CSI, ITS AFFILIATES AND THE OFFICERS DIRECTORS, EMPLOYEES AND REPRESENTATIVES OF ANY OF THESE (EACH A "COVERED PARTY") WILL NOT BE LIABLE TO PARTICIPANT FOR ANY LOSS, DAMAGE, OR EXPENSE CAUSED BY, OR ARISING OUT OF, ANY BREACH BY CSI OF THIS AGREEMENT, THE MANNER IN WHICH ANY SERVICES ARE PROVIDED, THE MANNER IN WHICH ANY LISTING OR OTHER MATERIAL RELATING TO PARTICIPANT IS DISPLAYED (INCLUDING, BUT NOT LIMITED TO, ANY ERRORS THAT MAY APPEARS IN ANY LISTING OR OTHER MATERIALS RELATING TO PARTICIPANT) OR ANY REVIEW OR FEEDBACK RELATING TO PARTICIPANT SUBMITTED BY ANY USER OF CSI'S SERVICES. IN NO EVENT WILL CSI OR ANY COVERED PARTY BE LIABLE TO PARTICIPANT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER CSI OR THE COVERED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF CSI AND THE COVERED PARTIES WILL BE LIMITED TO (I) THE AMOUNT PAID TO CSI BY PARTICIPANT UNDER THIS AGREEMENT WITH RESPECT TO THE LISTINGS OR SERVICES OUT OF WHICH THE CLAIM ARISES, OR (II) (IF APPLICABLE) THE DISPLAY OF THE RELEVANT LISTING AT A LATER TIME IN A COMPARABLE POSITION, AT CSI'S DISCRETION.
12. Use of Participant's Contact Information. Participant agrees that CSI and its affiliates may use any contact addresses and numbers, including email addresses, telephone and fax numbers, provided to CSI by Participant or otherwise used by Participant, to contact Participant for any customer service, business or marketing purpose.
13. Miscellaneous: The warranties, indemnification obligations, limitations of liability, licenses and ownership rights set forth above will survive the termination of expiration of this Agreement. Should any provision of this Agreement be deemed unenforceable, such provision will be restated, in accordance with applicable law, to match most closely the intentions of the parties, and the remainder of this Agreement will remain in full force and effect. All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight courier or certified mail, postage prepaid, to the parties at their respective addresses set forth in the Registration Form. Notices will be deemed effective upon receipt. This Agreement constitutes the entire Agreement between the parties pertaining to its subject matter and supersedes all prior agreements relating to such subject matter. This Agreement cannot be modified except in a writing signed by both parties. In the event of any inconsistency between these Standard Terms and Conditions and any other form submitted by Participant or its advertising agency or any correspondence from Participant or its advertising agency, these Standard Terms and Conditions will control. This Agreement will be construed under the laws of the State of Georgia, without reference to its conflict of laws principles.