Top Rated Local® Business Listing Terms of Service

Last updated July 12, 2018.

Welcome to the Topratedlocal.com. This Top Rated Local Business Listing Terms of Service (the “Terms of Service ”) governs the relationship between you (the “Client” or “you”) and Madwire, LLC d/b/a Top Rated Local a Colorado limited liability company located at 3420 E. Harmony Rd. Fort Collins, CO 80528 (“Top Rated Local,” “we” or “us” and together with you the “Parties or each individually a “Party”)  Top Rated Local® provides a range of marketing and reputation management services for businesses of all sizes (the “Services”).  By signing up your business account at topratedlocal.com you expressly accept these Terms of Service. These Terms of Service may be reviewed at any time at www.topratedlocal.com/legal.

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, TOP RATED LOCAL® DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY TOP RATED LOCAL®, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.

1. Acceptance of these Terms of Service. These Terms of Service together with our Privacy Policy located at www.topratedlocal.com/legal/privacy-policy/ govern the Top Rated Local Services and constitute the entire agreement between the Parties. Top Rated Local® limits acceptance to the Service Agreement and the Terms of Service, and objects to any other additional or different terms in the Client’s acceptance.  

2. Changes to the Terms of Service. We may, from time to time, change these Terms of Service, including the Privacy Policy. Such revisions will be effective immediately; provided however, for existing Clients, such revisions shall, unless otherwise state, be effective 30 days after posting. Past Terms of Service can be found here: www.topratedlocal.com/terms-of-service-archives/.

3. Top Rated Local Business Listing Services

a. Top Rated Local® Base Platform. You may claim your business listing and get access to the Top Rated Base Platform for no additional cost. The base platform includes the ability edit some business information on your listing, to add unlimited users, access to the rating and analytics dashboard, recommendations for improving your rating score, ability to leave notes or reply’s to reviews on Top Rated local, the ability to embed Top Rated Local reviews and ratings on your website, and the ability to use the Top Rated Local trust badge on your website and marketing materials. The Top Rated Local base platform is available for free for one business location, additional business locations will require a Reputation Plus account. The initial location will be determined by Top Rated Local. 

b. Top Rated Local Premium - $39/mo. In addition to everything included with the base platform the Top Rated Local Premium package grants you the ability to keep reviewer comments private for internal use only (rating stars will remain part of your Top Rated Local star ranking and overall Rating Score), the ability to send rerate requests to your reviews, and the ability to promote special offers through your Top Rated Local account. Also with a premium account, verified reviews will show a verified review badge. A Top Rated Local Premium Account will include a business listing for one location, additional business locations will require a Reputation Plus account.   

c. Top Rated Local Reputation Management $249/mo. In addition to everything in the Top Rated Local Premium account your reputation Management account will include a dedicated reputation manager, access to the Marketing 360 CRM and Email Marketing 360. Your reputation manager will work to help improve your overall Rating Score and reputation across the internet.  Your reputation manager will work with you to help improve your online reputation by reaching out to verified Clients to solicit reviews on reputable review websites.  Your reputation manager will also read and reply (with your permission) to new reviews posted throughout the internet. Your Reputation Plus account also gives you an enhanced business listing, placement as a “Staff Favorite” on your vertical listing page, the ability to add additional locations, and an enhanced flag on the Top Rated Local map for greater visibility. One location is included with your account, additional business listing locations are available for $199 per month.

d. Email Marketing 360. All Top Rated Local Reputation Management accounts will be given access to Email Marketing 360. Email Marketing 360 allows you to easily design, create and send targeted marketing campaigns to your email marketing list through the Marketing 360 platform. The Marketing 360® base platform includes 2,500 emails per month at no additional charge.  Email messages in excess of 2,500 per month will be charged $.004 per message. Any excess charges due will accrue over the month and you will be billed for these charges in arrears with your regular monthly marketing payment. Unused messages do not rollover from month to month. By using Email Marketing 360 you agree to the Marketing 360® Anti-Spam policy located at marketing360.com/antispam. You represent that you will use Email Marketing 360 incompliance will all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity and defamation and regulations such as HIPAA and other applicable privacy laws.) You agree not to use Email Marketing 360 in a way that is obscene, harassing, threatening, libelous or in any way that violates or infringes upon any third party intellectual property rights.  You hereby agree to indemnify and hold harmless Marketing 360 against any damages, losses, liabilities, and expenses arising from an alleged violation of the foregoing or otherwise relating to your use of the Email Marketing 360 services.

e. Marketing 360® CRM. All Top Rated Local Reputation Management accounts will be given access to the Marketing 360 CRM. The Marketing 360® CRM is a full featured customer relationship management system within the Marketing 360® platform that is designed for small and medium sized businesses. The CRM is included with your Top Rated Local Reputation Management program. Use the Marketing 360® CRM to manage unlimited leads, contacts & customers in one place. Add as many team members as you need, create custom fields to store any contact information you need, assign tasks track deals and sales pipelines, assign contacts to specific team members and use your CRM on your phone or desktop computer from anywhere with internet access. Once you sign up for the Marketing 360® CRM, a CRM specialist will contact you to walk you through the product and answer any initial questions you may have. Going forward, either your Reputation Manager or a CRM specialist can assist you with any questions. All fees paid for the Marketing 360® CRM are non-refundable. You may log into the system and export a .csv file of your CRM data at any time, as long as your CRM access is not currently suspended or terminated. We are under no obligation to store and maintain your CRM records if your Marketing 360® CRM account has been terminated. Please contact your CRM specialist for more information about exporting CRM data. Please note, the Marketing 360® CRM is not designed to be HIPAA compliant, and is not designed to be used by any health services provider.  To the extent that we process CRM data that is subject to the European Union General Data Protection Regulation (“GDPR”) on your behalf, the terms of the Marketing 360 Data Processing Agreement (the “Marketing 360 DPA”) shall apply, see Section 15.j.

4. Communication Preferences. You consent to receiving electronic communications from Top Rated Local relating to your account. These communications may involve sending emails to your email address provided during registration, or posting communications on the Top Rated Local dashboard, or in the "My Account" page and will include notices about your account (e.g., payment authorizations, change in password or Payment Method, confirmation e-mails and other transactional information) and are part of your relationship with Top Rated Local. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receiving certain other communications from us, such as newsletters about new Top Rated Local features and content, special offers, promotional announcements and customer surveys via email or other methods. Please review our Privacy Policy www.topratedlocal.com/legal/privacy-policy/ for further detail on our marketing communications.

5. Reputation Management Client Obligations. In addition to making all required payments, all Reputation Management Clients shall (a) cooperate with Top Rated Local® in all matters relating to the Services and provide access to third party accounts, including review accounts, as necessary; (b) respond promptly to questionnaires and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Top Rated Local® to perform Services in accordance with the requirements of this Agreement; and (c) provide such customer materials or information as Top Rated Local® may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects.

6. Prohibited Content. You may not use the Top Rated Local services for to post, promote or link to any illegal activity, storage or transmission of information, data or files that violate any United States Federal, State or City law. Such information/data includes, but is not limited to: pirated software, copyrighted data and links to sites that provide such software/data. Pornography and sex-related merchandising are also prohibited on Top Rated Local. This includes sites that may infer sexual content, or link to adult content elsewhere. This is also true for sites that promote or link to any illegal activity or content that may be damaging to our servers or any other server on the Internet. Moreover, any site involved in “spamming, selling or promoting bulk email software, services, or addresses is forbidden. Top Rated Local reserves the right to refuse or cancel service to any Client that violates this section. Furthermore, we reserve the right to determine what violates this policy.

7. Billing. By signing up for either a Premium or Reputation Plus account and providing a designated Payment Method, you authorize us to charge you a recurring monthly fee at the then current monthly rate. You agree to pay all amounts due under this Agreement in US dollars monthly, in advance.  If Client is paying by credit card or ACH, Client hereby authorizes Top Rated Local® to charge the credit card or other payment method provided for any such amounts on a recurring basis when such amounts are due, and any amounts due will be automatically charged, in advance. For monthly recurring Services, unless the Service Agreement states otherwise, you will be billed on the same numerical day of each month as the Effective Date. For example, if the Effective Date is November 17th, you will be billed for recurring monthly payments on December 17th, January 17th, and so on. The last billing date in each month is the 25th.  If your Effective Date is after the 25th, the first payment will be taken on the Effective Date, and recurring payments will bill on the 25th of each month. Top Rated Local® uses a credit card updating service that automatically updates credit card numbers where a credit card has expired or been replaced. You acknowledge that Top Rated Local® has a right to charge any credit card updated in this manner in accordance with these Terms of Service and the Service Agreement. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL AMOUNTS OWED MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED OR IF A PAST PAYMENT HAS BEEN DISPUTED.      

8. No Refunds. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members ("credits"). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.

9. Term and Cancellation.

a. Term.  The Agreement shall begin on the Effective Date, and will remain in effect until terminated as provided below. For recurring accounts, including Reputation Management accounts, the Service Agreement sets forth the minimum commitment term (the “Initial Term”), and authorizes recurring monthly billing for such period. Unless otherwise stated in the Service Agreement, Reputation Management accounts have a six (6) month Initial Term and Top Rated Local Premium accounts have a one month Initial Term. Only months in which full payment has been received will count as a month of marketing under the Initial Term. Client acknowledges that Client’s Reputation Management plan is designed based on a minimum six-month Initial Term. After the Initial Term, the Term will be automatically renewed for successive one month periods (each, a “Renewal Term”), or as otherwise provided in the Service Agreement (the Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”)   

b. Cancellation. You may cancel the services by providing no less than 30 days’ written notice of cancellation via mail or email addressed to Client’s Marketing Executive or Project Manager, as applicable.  If you have not completed the Initial Term, cancellation will be effective at the completion of the Initial Term.  If you have completed the Initial Term, services will continue through the end of the next applicable Renewal Term, and will then be cancelled.

c. Early Cancellation. If you wish to cancel the Services without completing the Initial Term you may do so only by providing both written notification of cancellation and the Early Cancellation Fee. The amount of your Early Cancellation Fee is defined in your Service Agreement. If your Service Agreement does not define the Early Cancellation Fee it shall be equal to the lesser of either (a) your remaining monthly payments under the Initial Term or (b) $1,494. The Early Cancellation Fee payment is in addition to your monthly payments to date and may not be paid with credits on file or any prior payment. The Early Cancellation Fee must be provided within five (5) business days from our receipt of your written notice of early cancellation. No early cancellation of a Service Agreement will take effect until the Early Cancellation Fee has been paid, and you will continue to be billed monthly until we receive both proper written notice of cancellation and the Early Cancellation Fee, as applicable. Upon execution of this agreement, Top Rated Local® will be investing considerable work into Client’s business and online marketing activities. This investment is being made with the understanding that you are committing to pay for the Services through the Initial Term. Client recognizes the aforementioned investment, up-front sales, setup and opportunity costs that Top Rated Local® bears in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate Marketing 360® for early cancellation of the Services.

d. Cancellation Revocation. You may, upon written notice (email is acceptable), revoke such cancellation within 30 days after you have made a cancellation request, in which case the Service Agreement will be reinstated and all applicable services will be reinstated upon payment in full of all amounts owed. If the cancellation fee has already been paid it shall be applied to any future amounts owed.

e. Top Rated Local’s Right to Cancel. We may cancel this Agreement at any time for any reason, and in our sole discretion, by providing written notice of cancellation to you.  Cancellation will take effect at the end of the then current billing period. Written notice may be provided to you via email. If we terminate this Agreement, we will reimburse you for any unused funds within 30 business days from the effective cancellation date.      

10. Intellectual Property.

a.  Trademarks. All trademarks in this agreement and used in conjunction with the Services are trademarks of Top Rated Local®, its affiliates and licensors. Use of these trademarks is governed by the Top Rated Local trademark policy located at [LINK], all other uses are prohibited.

b.  Copyright. The Top Rated Local website, software and content are protected by copyright, trade secret or other intellectual property laws and treaties.

c.  Claims of Copyright Infringement. If you believe your work has been reproduced or distributed in a way that constitutes a copyright infringement or are aware of any infringing material available through the Top Rated Local service, please notify us through our DMCA policy located at www.topratedlocal.com/legal/copyright-policy/.

11. Authorization and Limited License to Access Top Rated Local® Software Platform. During the Term, you will be granted a revocable, non-transferable, non-sublicenseable, non-exclusive limited license to access the Top Rated Local® software platform. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in Top Rated Local®, the platform, software, data, applications, methods of doing business or any other content provided through Top Rated Local® whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Top Rated Local® Platform and Services, are and will remain with Top Rated Local®. You may only access Top Rated Local® via a web browser or mobile application.  Your access shall be password protected and you acknowledge that you shall not share your password or otherwise permit any other Person to, access or use the Top Rated Local® Platform or Services except as expressly permitted by this Agreement.

For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits: 

(a)  copy, modify or create derivative works or improvements of Top Rated Local® Platform or Services;

(b)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Top Rated Local® Platform or Services to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

(c)  reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;

(d)  bypass or breach any security device or protection used by the Top Rated Local® Platform or Services or access or use the Top Rated Local® Platform or Services other than by an Authorized User through the use of his or her own then valid Access Credentials;

(e)  input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;

(f)  damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider’s provision of services to any third party, in whole or in part;

(g)  remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the services, including any copy thereof;

(h)  access or use the Top Rated Local® Platform or Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law;

(i)  access or use the Top Rated Local® Platform or Services for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage.

Top Rated Local® may terminate the foregoing license and your account if it determines, in its sole discretion, that you have violated the provisions of this license.

12. Representations.  By agreeing to these Terms of Service you personally represent that (a) you are at least 18 years of age; (b) you have the authority to claim the associated business listing; (c) the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (d) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (e) upon execution of the Service Agreement, this Agreement constitutes a legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms. Client further represents that Client has the right to use all intellectual property, including but not limited to copyrighted materials and trademarks, supplied to Top Rated Local® for use in conjunction with the services.

13. DISCLAIMER OF WARRANTIES. TOP RATED LOCAL® PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE SERVICES ARE INTERRUPTED OR DELAYED, OUR SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOP RATED LOCAL DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, TOP RATED LOCAL MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.

14. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TOP RATED LOCAL® SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO TOP RATED LOCAL® FOR THE SERVICES SOLD HEREUNDER.  

YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.

15. Indemnification. You agree to indemnify, defend and hold us harmless from any and all liability, claims, damages and settlements due to any third-party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Client’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Terms or Service by Client or any third party (authorized, permitted or enabled by Client).  This indemnification includes, but is not limited to, any actions, including intellectual property actions (including trademark and copyright actions), actions related to end user personal or financial data, PCI compliance, Client’s order processing, billing, fulfillment, shipment, collection and/or actions related or associated with any products or services offered, sold or licensed through Client’s website. If Client is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Client waives any Claims it may have against Marketing 360® arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless Marketing 360 against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.

16. Dispute Resolution.

a. Good Faith and Cooperation. Each of the Parties agrees to cooperate in good faith, reasonably, and in such a manner as may be necessary or appropriate to implement and give effect to the terms, conditions, and agreements contained herein. Each Party agrees to contact the other in writing (email is acceptable) regarding any claims, disputes or controversies, and allow the other Party no less than 30 days to cure the issue and/or demonstrate that there is in fact no issue present under these Terms of Service prior to initiating any formal legal action, payment dispute, or publishing any disparaging comments detrimental to the reputation, business, or business relationships the other.        

b. Agreement to Arbitrate. If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any and all disputes, controversies or claims arising out of, relating to or in connection with this Agreement, including the breach, termination or validity thereof, through confidential binding arbitration in Fort Collins, Colorado by a single arbitrator. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Such arbitration shall be administered by the American Arbitration Association (AAA), and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.    

c. Exceptions to Agreement to Arbitrate. Either Party may assert claims, if they qualify, in small claims court in Larimer County, Colorado. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described aboveIn the event that the Arbitration Agreement is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts of the state of Colorado. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c.

d. Costs and Attorney’s Fees: Except as otherwise provided in these Terms of Service, the Parties will be responsible for their own costs and legal fees.

e. Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGRESS THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.

17. Miscellaneous.

a. Choice of Law:  This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of Colorado without giving effect to conflict of laws principles.

b. Entire Agreement. These Terms or Service together with the applicable Service Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Any amendments or modifications of this agreement shall be in writing and executed by the Parties.

c. Waiver. The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party's right to require performance at any time thereafter.

d. Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.

e. Severability. If any provision of this Agreement or the application thereof is held invalid, illegal or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect.

f. Assignment. Neither Party may assign any part of the Agreement without the prior written consent of the other Party, provided, however, that either Party may freely assign this Agreement in connection with a sale of substantially all of its assets or a change of control of at least 50% of the voting equity interests of the business effective upon notice to the other Party.

g. No Third Party Beneficiaries. The parties do not confer any rights or remedies upon any Person other than the parties to this Agreement and their respective successors and permitted assigns.

h. HIPAA. If Client is a “covered entity” or a “business associate” thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, “HIPAA”) or is otherwise subject to any HIPAA-related or similar legal requirement, Client is solely responsible to ensure full compliance therewith. Client is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation. Marketing 360® makes no claims or warranties regarding compliance with HIPAA.

i. EU/EEA Data Processing. To the extent that we process customer data that is subject to the European Union General Data Protection Regulation (“GDPR”) on your behalf, the terms of the Marketing 360 Data Processing Agreement (the “Marketing 360 DPA”). The Marketing 360 DPA is hereby incorporated by reference for all accounts whereby we process data subject to the GDPR. You acknowledge that in all cases Marketing 360 acts as the data processor of this data and you are the data controller of the data. You are required under the GDPR to obtain and maintain documentation of the applicable legitimate purpose and/or consent to process this data. 

j. Third-Party websites, reviews and products. Third-Party websites, reviews and products are not under our control, and are provided to you only as a convenience. The availability of any Third-Party website or product does not mean we endorse, support or warranty the third=party website or product. All trademarks are the property of their respective owners. Any third-party company, product and service names used on this website are for identification purposes only. Use of these names, trademarks and brands does not imply any endorsement, affiliation or relationship with Top Rated Local or its affiliates.

k. Relationship of the Parties. The Parties to the agreement are independent contractors, and no agency, partnership, joint venture or employee/employer relationship is intended or created.

l. Referrals. Top Rated Local® may provide incentives to third parties to introduce potential Clients to Top Rated Local®.

m. Survival. The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Client remains liable for any amounts due to Top Rated Local® as of the effective date of termination.

o. Taxes. Except for Clients located in South Dakota, and unless otherwise stated, the fees do not include any taxes, levies, duties or other similar government assessments of any nature, including but not limited to value-added, sales, use or withholding taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying any taxes associated with the purchase of the services hereunder. Sales Tax will be collected on all products, except for Ad Credits and Website Design services, sold to Clients residing in South Dakota.

p. Call Recording. You acknowledge that we may record Client phone calls for quality control purposes.

q. Trade Name. Top Rated Local® is a federally registered trademark and registered trade name of Madwire, LLC a Colorado Limited Liability Company.

r. Headings. Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section.

s. Force Majeure. Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.

t. Defined Terms. Capitalized terms are defined in the Section in which they first appear.