are responsible for any reasonable expenses and attorneys Terms and Conditions
(Last Updated December 15, 2017)
These Terms and Conditions (this “Agreement”) is a legal agreement between UKIIKI, Inc., a Califoria corporation (“UKIIKI”, “us” or “we”), and the business by which the individual accepting this Agreement is employed or otherwise engaged (the “Client” or “you”). UKIIKI 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 UKIIKI and the Client in connection with the Products (as defined below) for which Client has purchased a subscription. By clicking a box or link indicating your acceptance, you agree to the terms of this Agreement. If you do not agree with the terms of this Agreement, you must not accept this Agreement, and you will not be permitted to use any of the Products or exercise any of the other rights set forth herein.
1.1 Product Subscriptions
UKIIKI offers its clients subscriptions to various products and services (each, a “Product”). Use of Products are subject to additional technical standards, content rules and other terms and conditions (of both UKIIKI and its Publishers (as defined below) (collective, the “Product Terms”). The Product Terms are currently located at https://ukiiki.wpengine.com/product-terms/, and are incorporated into, and form a part of, this Agreement.
Certain Products may involve the distribution of Client Content (as defined in Section 3.4) and/or other interactions with third parties (the “Publishers”) that own or operate online business directories, search websites, social media websites, mobile apps or other online properties (the “Publisher Sites”). Client acknowledges and agrees that (i) all content submitted for any Product shall be subject to the Publishers’ character limits, quality standards and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Publisher at any time in its sole discretion, or modified by UKIIKI or the Publisher at any time to comply with such policies, (ii) UKIIKI does not guarantee that any content will be displayed on any Publisher Site, and (iii) the appearance and/or location of any content placement may change at any time. UKIIKI SHALL HAVE NO LIABILITY FOR THE AVAILABILITY OF OR ANY CHANGE IN THE PARTNER SITES, FOR ANY DECISION BY A 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.
1.3 Implementation at Client’s Request
UKIIKI may from time to time, at the request of the Client, assist Client with the implementation of certain features that are a part of the Products. This may include interaction with the Client’s website and web pages. Any such assistance provided by UKIIKI is at the Client’s own risk. UKIIKI SHALL HAVE NO LIABILITY FOR THE AVAILABILITY OF OR ANY CHANGE IN THE CLIENT’S WEBSITE OR TO ANY CLIENT CONTENT OR OTHERWISE IN CONNECTION WITH SUCH ASSISTANCE.
2. Fees and Payment
By purchasing a subscription, you agree to any fee and payment terms that are described herein and/or during the online registration process. Any Product fees are exclusive of any sales, taxes, levies, duties or similar governmental assessments (other than taxes on UKIIKI’s income). Client is responsible for paying any Taxes associated with its purchases here-under. Purchased subscriptions may not be cancelled during the subscription term and any fees paid are nonrefundable except in UKIIKI’s sole discretion. Client agrees that its purchases are not contingent on UKIIKI’s delivery of any future functionality or feature.
2.2 Provision of Credit Card Information; Payment Terms
You will be required to provide UKIIKI with a valid credit card number upon registration for a subscription. You hereby warrant and represent that you have the authority to provide such credit card information to UKIIKI and shall be responsible for all charges made thereto. UKIIKI 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 UKIIKI at the time of registration, though UKIIKI 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 two percent (2%) of the outstanding balance per month (or the highest rate permitted by law, whichever is less). The client, in addition, will be charged $35 for any payment not collected before another payment is due. In addition, you are responsible for paying any reasonable expenses and attorneys’ fees that Ukiiki incurs in connection with collecting late amounts. If any amount owed by you under this Agreement is overdue, Ukiiki may, without limiting our other rights and remedies, suspend your access to the Products until such amounts are paid in full. Notwithstanding the termination provisions set forth in Section 4.2, if your access to the Products has been suspended for a period of seven (7) days or more for an overdue payment pursuant to the preceding sentence, Ukiiki may, upon notice to you, immediately terminate this Agreement and cancel your account.
2.3 Automatic Renewal
UKIIKI WILL AUTOMATICALLY RENEW EACH OF YOUR PRODUCT SUBSCRIPTIONS AND CHARGE YOUR CREDIT CARD AT THE BEGINNING OF EACH SUBSCRIPTION RENEWAL PERIOD, SO LONG AS YOUR SUBSCRIPTION HAS NOT BEEN CANCELLED. The automatic charge to your credit card will occur at the commencement of each subscription renewal. You acknowledge that the amount billed each Billing Period may vary for reasons such as promotional rates no longer being applied, changes in your subscription (for example, changes in the number of your locations under your subscription), changes in the amount of applicable sales tax, additional billable hours performed by Ukiiki at the clients request or other reasons; and you authorize us to charge your credit card for such varying amounts. UKIIKI may also periodically preauthorize your credit card in anticipation of account or related charges.
3. Use of the Products.
3.1 Right to Use
UKIIKI hereby grants Client a limited, non-exclusive, non-transferable right to access and use the Products that Client has subscribed to solely in connection with Client’s legitimate business needs. This right will terminate in the event the applicable subscription is not renewed or this Agreement is terminated pursuant to Section 4.2, in which case Client will immediately cease any further use of the Products.
3.2 Proprietary Rights
UKIIKI owns and retains all right, title and interest (including all intellectual property rights) in and to the Products, including all aspects of the technology and branding, and any software or other materials developed or created by or on behalf of the
3.3 Usage Restrictions
Client’s use of the Products is limited solely to those rights granted in Section 3.1. Client will not (i) copy, prepare derivative works of, decompile or reverse engineer any Product, or any portion of any of the Products, (ii) use the Products to store or transmit any malware, or for any unlawful or fraudulent purpose, or (iii) sell, resell, license, sublicense, distribute, rent or lease any Product.
3.4 License to Client Content
Client hereby grants UKIIKI non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of UKIIKI’s business), perpetual, irrevocable, unlimited use rights (or a subset of such rights) to use, distribute, copy, publish, syndicate, reformat and update (for example, to improve accuracy and/or standardize formats) any and all business listing and other information or content that is made available by or on behalf of you in connection with your use of the Products (“Client Content”). UKIIKI may sublicense this right to any Publishers and other online partners. This license will survive any termination or expiration of this Agreement. Client acknowledges and agrees that UKIIKI shall be the source of record for Client’s business listing information and that Client will only make available information that it knows to be true.
4. Term and Termination
This Agreement is effective as of the date you register for a subscription and shall remain in full force and effect until terminated by either Party in accordance with this Section 4.
Either Party may terminate this Agreement and disconnect some or all of the Products at any time for convenience upon notice to the other Party to be effective at the end of your current subscription period (such notice may be provided through the Ukiiki Help Desk, by emailing email@example.com, by choosing not to renew your subscription, by emailing cancel@UKIIKI.com, or by reaching out to your campaign manager for assistance with any of these options). In addition,
Upon any termination or expiration of this Agreement, Client will pay UKIIKI 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 3.4 (“License to Client Content”), this Section 4.3 (“Survival”), Section 5 (“Disclaimer and Limitation of Liability”), Section 6 (“Indemnification”), Section 7 (“Representations and Warranties”), Section 8 (“General Provisions”).
5. Disclaimer and Limitation of Liability
THE PRODUCTS PROVIDED BY UKIIKI IN CONNECTION WITH THIS AGREEMENT ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, UKIIKI 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. THE UKIIKI PRODUCTS AND UKIIKI WEBSITE, AND OTHER WEBSITES, DATABASES AND/OR THIRD PARTY PROGRAMS CONTAINED WITHIN THE PRODUCTS, MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. UKIIKI HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR ANY
Client will defend, indemnify, and hold harmless, UKIIKI, its third party licensors and Publishers, 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 subscription; (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, webpages, websites or business; and/or (e) any third party dispute with you, including, without limitation, 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) you have obtained, and grant to UKIIKI, sufficient rights to access and use the Client Content to deliver the Products in accordance with this Agreement;
(d) your execution, delivery
(e) you will comply with all applicable federal, state and local laws, rules, regulations, court orders, judgments
8. General Provisions.
All non-public information relating to the
8.2 Promotional Materials
During the term of this Agreement, UKIIKI may use Client’s name and logo for the purpose of referring to Client as a UKIIKI client on UKIIKI’s website and in its other promotional materials.
Client’s participation in any subscription shall be subject to all applicable UKIIKI 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 UKIIKI at any time. The latest Policies can be found on any of UKIIKI’s websites. You should review the Policies regularly. By your continued participation in a Product subscription, you agree to all of the associated terms and conditions contained within the Policies effective at that time.
Except as where otherwise stated, each Party is permitted to use contractors, agents and professional advisors (“Representatives”) in connection with this Agreement, but it is liable for their acts and omissions.
8.5 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.
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.
8.7 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.
8.8 Arbitration and Class Action Waiver
YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE PRODUCTS AND/OR ANY SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S COMMERCIAL ARBITRATION RULES. ARBITRATION WILL BE HELD IN THE UNITED STATES COUNTY THAT YOU LIVE OR WORK IN, VISTA, CA OR ANY OTHER LOCATION THAT THE PARTIES AGREE TO. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the Party initiating the arbitration must mail a copy of the completed form to the opposing Party. You may send a copy to UKIIKI at the following address: Ukiiki, Attn: Legal Department, 555 West Beech Street, Suite 500 San Diego, CA 92101. In the event UKIIKI initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your account. As an alternative to arbitration, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.
8.9 Governing Law and Forum
This Agreement, and any disputes arising directly or indirectly from this
8.10 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. UKIIKI may modify the terms of this Agreement at any time without liability, and your use of the Products after notice that the terms of this Agreement have changed constitutes your acceptance of the new terms.
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.
8.12 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.
8.13 Assignment and novation
You shall not, without the prior written consent of UKIIKI, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. UKIIKI may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.