GENERAL TERMS AND CONDITIONS FOR WEBSITE DIRECTORY LISTING
1. Directory Listing. In exchange for the payment set forth on the applicable Insertion Order (“IO”), SmartBug will list Service Provider’s business information as provided by Service Provider on Exhibit A to these Terms and Conditions (the “Listing”). The Listing will appear under the category and states indicated on the IO, in a sponsored directory listing of various elder care services (the “Directory”) located on “www.insideeldercare.com” (the “Website”). For purposes of clarification, SmartBug owns and operates other websites other than the Website and this Agreement shall only require SmartBug to place such Listing in the Directory on the Website.
2. Scope of Publication/Usage. Service Provider hereby grants to SmartBug a non-exclusive and non-transferable license to use Service Provider’s name and contact information provided for the purpose of displaying it in the Directory on the Website.
3. Relationship of Parties. The parties are independent contractors and SmartBug will not bear any responsibility for business transactions between Service Provider and its customers or prospective customers. SmartBug will not and will not be obligated to make any representations, warranties, or other statements concerning Service Provider, Service Provider’s qualifications or any of its products or services.
4. No Obligations Regarding Website.
(a) SmartBug shall not be responsible to Service Provider for any malfunction to the Website or its availability or uptime on the World Wide Web, however, SmartBug shall use commercially reasonable efforts to keep the Website operational and shall work with Service Provider to address and resolve any issue that arises related to the Listing.
(b) SmartBug may modify the Website at its sole discretion and is not obligated to notify Service Provider of any such modification, provided that any such modification shall still include the Listing in the Directory in accordance with the terms set forth herein.
(c) SmartBug does not guarantee any improved lead generation or business performance as a result of placement of the Listing in the Directory.
5. Representations and Warranties; Limitation of Liability.
(a) Service Provider represents and warrants that:
(i) As of the Effective Date, Service Provider has all appropriate licenses from the appropriate licensing bodies to provide the services it is advertising in the Directory and that its license is in good standing.
(ii) Service Provider is in good standing with the Better Business Bureau or other comparable business regulating body.
(b) EXCEPT FOR THE ABOVE REPRESENTATIONS AND WARRANTIES, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SMARTBUG MAKES NO REPRESENATIONS THAT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE AND SMARTBUT WILL NOT BE RESPONSIBLE FOR ANY CONSEQUENCES OF ANY SUCH INTERRUPTIONS OR ERRORS.
(c) Limitation of Liability. SMARTBUG WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF REVENUE, PROFITS OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMIATION ANY ERROR IN ANY LISTING, UNDER ANY THEORY OF LIABILITY, EVEN IF SMARTBUG HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO EVENT WILL SMARTBUG’S LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER OF THE AMOUNT PAID BY SERVICE PROVIDER FOR SUCH LISTING OR TWO HUNDRED AND FIFTY DOLLARS ($250.00).
6. Indemnification. Service Provider agrees to defend, indemnify and hold harmless SmartBug, its affiliates, employees, officers, directors and shareholders against all claims, causes of actions, demands, losses, damages and costs (including reasonable attorneys’ fees) arising from, directly or indirectly, or in any way related to:
(a) any Listing information submitted under this Agreement and any content on any Service Provider site to which the Website is linked;
(b) the sale or offer for sale of any products or services advertised by the Service Provider; or
(c) any breach of any representation or warranty or misrepresentation made by Service Provider in this Agreement.
7. Miscellaneous. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorize either to act as an agent for the other and neither party shall have any authority to act in the name or on behalf or otherwise to bind the other party in any way. Any notice required under this Agreement will be given in writing and will be deemed to have been delivered (i) on the delivery date, if delivered by confirmed e-mail, facsimile or personal delivery, or (ii) one business day after deposit with a commercial overnight courier with written verification or receipt. Notice to Service Provider shall be given to the contact information provided on Exhibit A. This Agreement shall be governed by the laws of the State of California and any action brought hereunder shall be brought in the courts residing in Orange County, California and the parties agree to such exclusive jurisdiction.