These Melon Local Terms and Conditions govern your (“Agent” or “you”) use of and access to the Melon Local platform and services provided by Melon Local (“Melon Local” or “we”).
We may make changes to these Melon Local Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by providing a notice through our services or updating the date at the top of these Melon Local Terms. Unless we say otherwise in our notice, the amended Melon Local terms will be effective immediately, and Agent’s continued use of the services (including the Melon Local platform) following any such change, modification or amendment to these Melon Local terms will constitute Agent’s acceptance thereof. If you do not agree to the amended Melon Local terms, you must stop using our services.
These Melon Local terms are independent from a separate Agreement between you and us. If you use or access MelonLocal.com, a Melon Local application, any of our other services or other websites on which these Terms and Conditions reside, you will be bound by the Terms and Conditions of Use.
1. Services
The Service means the Melon Local technology and services for insurance providers as detailed in the Onboarding Form and Agreement. The Service includes, but is not necessarily limited to, the provision of cloud-based tools and services, including but not limited to call tracking, reputation management, profile syndication and management, analytics dashboard, and general online local marketing services.
1. Advertising
Melon Local will create advertising campaign(s) for Agent if, and when, advertising subscription(s) is/are recited on the Onboarding Form. An Advertising campaign will begin after Melon Local is in receipt of the respective Advertising investment. The first Advertising investment shall be prorated and due on Launch and then split evenly on the first and fifteenth day of each consecutive calendar month thereafter. Agent expressly acknowledges that by having Melon Local manage an Advertising campaign using at least machine learning, technology or any element thereof, that Agent shall never acquire any rights to nor have any direct or indirect access to any proprietary element or aspect of the technology or the Advertising campaign as determined by Melon Local. The machine learning is confidential information which Agent, or anyone at Agent’s indirect or direct direction, shall never attempt to view directly or indirectly, acquire, and/or transfer ownership of the advertising including, but not limited to, best practices, trade secrets, technology, strategies, techniques, know-how, bid structure, placement, potential Agent targeting, logic trees, keyword selection, keyword match type(s), keyword(s), advertising channel budget allocations (if any), and messaging, and Agent further expressly acknowledges Melon Local shall be under no obligation to disclose any campaign elements. After receiving feedback from Agent, if any, Melon Local shall then have full discretion and authority to manage every aspect of an advertising campaign, including, but not limited to, selection of the targeted individual words and/or phrases determination of applicable advertising channels, and determination of bids. In some instances, Melon Local may determine that some potential advertising channels may not be until the advertising investment is increased to a sufficient monetary value to capitalize on these other available advertising channels based on the competitiveness, geographic target and practice areas. This strategy is essential to the performance of Agent’s advertising campaign as each channel has a minimum threshold budget that should be maintained. Melon Local shall have full discretion with respect to the allocation of the available Advertising investment on the Selected Advertising Channels, and Melon Local makes no guarantees as to when or where ads will be displayed. Melon Local, either manually or through technology, may make adjustments to an Advertising campaign, including, but not limited to allocating the Advertising investment spend, shifting and/or reallocating the Advertising investment spend, advertising channels and/or partners, ad types and positioning at any time as determined by Melon Local in our sole discretion. Melon Local makes no guarantees as to the performance of any Advertising campaign. Once the allocated Advertising investment is sufficiently depleted for a calendar month for that given services, all corresponding Advertising campaigns will cease until either (i) Agent increases the current month’s Advertising investment; or (ii) next month’s Advertising investment is funded. Any Advertising investment increases will take effect upon receipt of the additional funds, where any decrease or pause will take effect once fully processed by the system and/or third-party processes and any decrease may invalidate any estimated goals. Melon Local makes no guarantees with respect to the time it takes to fully utilize the allocated Advertising investment.
2. Agent Responsibilities & Obligations
1. Agent Cooperation
Agent has elected to start a subscription which may require Agent’s involvement, scheduling, feedback and/or approval, where each of which is necessary for Melon Local to deliver such subscription in a timely manner. Agent shall use best efforts to deliver, schedule and/or provide any asset requested by Melon Local in a commercially reasonable manner and without undue delay to allow Melon Local to timely deliver the subscription.
2. Agent Data
Agent is responsible for ensuring that Agent data does not violate applicable laws and regulations, or third-party intellectual property rights, and Agent will take reasonable steps to identify and promptly remove any such Agent data. Agent represents and warrants that Agent data will not include any sensitive personal information, and that all of Agent’s collection, transfer, and use of any personal data transmitted or otherwise processed through the services will comply with all applicable privacy laws, regulations, and self-regulatory guidelines (including proper disclosure via Agent’s privacy policy and receipt of all consents required to process any personal data with the services).
3. Agent Obligations
Agent will (i) defend at its expense, and (ii) pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Agent) for third-party claims alleging a breach by Agent of its obligations under applicable data protection laws and regulations, including failure to comply with its own data privacy policy and the terms of the Agreement.
3. Melon Local’s Responsibilities & Obligations
Melon Local will: (i) defend at its expense and (ii) pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Melon Local) for third-party Claims alleging (a) the services (unless based on Agent data) directly infringe the third party’s patent, copyright, or trademark.
4. Warranties, Disclaimers, and Remedies
1. Services
Melon Local warrants that the services as delivered to Agent will materially conform to the specifications set forth in the Agreement. Melon Local further warrants that Melon Local will perform professional services in a professional and workmanlike manner. Agent must notify Melon Local of a claim under this warranty within thirty (30) days of the date on which the condition giving rise to the claim first appears.
2. Implied Warranties
To the maximum extent permitted by law and except for the express warranties in this section, Melon Local provides the services on an “as-is” basis. Melon Local disclaims and makes no other representation or warranty of any kind, express or implied. Agent acknowledges that certain software used by internet users may not be capable of supporting certain features or functionality which may be included in subscription. Agent expressly acknowledges Melon Local shall have no liability whatsoever for any claim(s) relating to any internet user’s inability to access the subscription, including, but not limited to website, properly or completely or for any claim relating to any errors or omissions in the subscription regardless of whether the claim is based on any policy, procedure, law, statute or otherwise. Neither Melon Local nor its affiliates or agents make any warranty as to the results that may be obtained from the subscriptions, that access to the subscriptions will be uninterrupted or that the subscriptions will be error free.
3. Remedies
To the extent permitted by law, Agent’s sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to replacement of the non-conforming services or re-performance of the professional service, as applicable. If in Melon Local’s sole discretion replacement or re-performance is not commercially reasonable, Melon Local may terminate the applicable portion of the sales order and provide a refund of any prepaid unused fees for the applicable services.
4. Cap on Liability
AGENT EXPRESSLY AGREES MELON LOCAL’S, ITS AFFILIATES’ AND ITS AGENTS’ ENTIRE LIABILITY, IF ANY, FOR ANY DISPUTE AND/OR CLAIM MADE AGAINST THEM (OR ANY ONE OF THEM) FOR DAMAGES RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), SHALL BE LIMITED TO, IN THE AGGREGATE, ONE (1) NON-ADVERTISING INVESTMENT. ANY CLAIM FOR DAMAGES IN EXCESS THEREOF BEING HEREBY EXPRESSLY WAIVED BY AGENT. IN NO EVENT WILL MELON LOCAL, ITS AFFILIATES OR ITS AGENTS BE LIABLE FOR ANY LOST PROFITS OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR RELATING IN WHOLE OR IN PART TO AGENT’S RIGHTS HEREUNDER OR THE USE OF OR INABILITY TO USE THE SUBSCRIPTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
5. Term; Subscription Cost; Advertising Investment Cost; Termination of This Agreement
1. Delinquent Activation Fee
Melon Local shall not activate subscriptions unless and until Melon Local receives the recited activation fee which is due on start date unless otherwise waived. Notwithstanding anything contained herein to the contrary, Melon Local may immediately terminate this Agreement if the activation fee is not received by Melon Local within ten (10) days of start date.
2. Subscription Term
This Agreement shall become effective and binding as of the start date. The subscription term shall begin on start. The Melon Local subscription term will begin for the quantity of recited consecutive months listed in Agreement. If not canceled by either Party pursuant to the terms herein, the Melon Local Platform subscription term shall automatically renew on a 12-month basis. All other non-Melon Local subscriptions, unless otherwise expressly recited, shall have an initial 1-month term and if not cancelled shall automatically renew on a month-to-month basis thereafter.
3. Advertising Investments
Advertising investment, including but not limited to Google Ads, Microsoft Ads, and Meta Ad, is charged by Melon Local and passed through to the corresponding platform. The advertising investment is approved by Agent in advance, and can be adjusted within two (2) business days with written notice. Advertising investment is charged twice a month, on the 1st and 15th by default, unless Agent expresses interested in a single monthly charge. Advertising investment, unless otherwise expressly recited, shall automatically renew on a month-to-month basis thereafter.
4. Monthly Investments
The first subscription cost shall be due on the start date and then on the first of the month for each subsequent month thereafter. All invoices will only be delivered electronically using the billing and contact information provided by Agent. If Agent believes that Melon Local has billed Agent incorrectly, Agent must contact Melon Local within thirty (30) days of the invoice date, specifying the error. Agent is not entitled to offset or deduct any amounts from Melon Local’s invoice unless: (i) Agent has properly notified Melon Local of the dispute; (ii) the dispute is made in good faith; and (iii) Melon Local has approved a payment limited to the undisputed amounts. If Agent fails to pay any amount due under the Agreement within fifteen (15) days of the due date, Melon Local may suspend or restrict the services. Melon Local may charge interest at a monthly rate equal to the lesser of 1% per month or the maximum rate permitted by applicable law on any overdue fees.
5. Termination of Subscriptions
The Agreement shall remain in effect until all subscriptions are terminated or canceled as set forth herein. This Agreement may be terminated by providing written notice to the other Party at least thirty (30) days before the end of the respective term. Notwithstanding the foregoing, either Party will have the right to terminate this Agreement immediately if (a) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (b) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
6. For Cause
Melon Local may immediately terminate the Agreement and/or pursue all other available remedies, including recovery from Agent of Melon Locals’ costs and attorneys’ fees incurred in pursuing such remedies if (i) a subscription is made impracticable or is delayed for at least thirty (30) days as a result of Agent’s failure to (i) provide Agent data, or (ii) provide necessary Agent assets or feedback.
7. Material Breach
In addition to any other right to terminate set forth herein, either Party may terminate this Agreement if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of delinquent total monthly investments which must be paid in full by due date. Despite anything to the contrary, Melon Local may immediately suspend and/or pause subscriptions if total monthly investment isn’t received on due date. Either Party may terminate this Agreement with thirty (30) days’ notice if the other Party materially breaches the same material term or condition of this Agreement. Further, Agent expressly acknowledges that an initiation of or credit card chargeback(s) and/or canceled check(s), which may or may not create delinquent or past-due invoices, shall be a material breach which cannot be cured, where Melon Local may immediately terminate the Agreement without notice while reserving all legal rights to be made whole for the full value of the Agreement; and Agent further waives any and all rights to seek any damages for this material breach as well as future delivery of subscription under this Agreement. Further, any and all amounts charged-back, canceled or returned may result in the Agent thereafter being charged up to the maximum legal interest rate on any past due balance which is considered liquidated damages, and is not a penalty.
9. Obligations Upon Termination
Upon termination of this Agreement, Melon Local irrevocably revokes subscriptions, and Agent shall immediately cease and desist from using subscriptions, technology and any other intellectual property of Melon Local or a third-party licensor unless expressly authorized herein. Further, Agent shall immediately pay all due and outstanding total monthly investment(s).
6. Payment
1. Payment
Agent shall pay Melon Local all amounts due under the Agreement in full on the recited due date(s), and Agent hereby irrevocably authorizes Melon Local to charge Agent’s provided credit card for any such amounts when due during the term, and Agent agrees to inform Melon Local in writing if the nominated credit card account is canceled, substituted, renewed lost or stolen. Amounts due will be automatically charged, in advance, and are not refundable. Melon Local shall be under no obligation to perform any subscriptions if Agent is delinquent on any subscription cost on any Melon Local Agreement. If Melon Local suspends any subscriptions due to non-payment by Agent, Agent agrees that it owes all amounts that would be due for the remaining months of the erm of the suspended subscriptions as if such subscriptions had not been suspended. If Melon Local does not receive timely payment of any amount due under the Agreement, Agent agrees to pay all amounts due pursuant to the Agreement upon demand and will reimburse Melon Local for all charges and fees Melon Local incurs in collecting the delinquent subscription cost(s), where Agent may be charged up to the maximum legal interest rate on any past due balance(s) where such interest is considered liquidated damages, and is not a penalty.
2. Processing Fees
Melon Local includes any payment processing fees from bank or creditors to Agent’s charges at the time the charge is processed. Processing fees many not be specifically itemized on Agent’s receipt, but are available upon request.
3. Taxes
The fees stated in a Sales Order do not include taxes. Agent is responsible for paying all applicable taxes. If Melon Local determines that Melon Local has a legal obligation to pay or collect taxes, Melon Local will add such taxes to the applicable invoice and Agent will be obligated to pay such taxes, unless Agent provides Melon Local with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues Melon Local for unpaid taxes for which Agent is responsible under the Agreement and which Agent did not pay to Melon Local, Melon Local may invoice Agent, and Agent will be obligated to pay such Taxes to Melon Local or directly to the taxing authority, plus all applicable interest, penalties, and fees.
7. Dispute Resolution; Arbitration
1. Notice of Dispute
Agent must notify Melon Local of a dispute within thirty (30) days of the date on which the condition giving rise to the claim first appears. Agent shall give (i) written notice to Melon Local setting forth all applicable and reasonable available details and/or proof, including, but not limited to, screenshots, emails, calculations and/or basis used to allege the dispute; and (ii) a proposed solution and/or compromise. The Parties will first try to settle any dispute(s) between them amicably in good-faith negotiations within thirty (30) days of receipt of the dispute documentation. If after the notice period the dispute has not been resolved to the satisfaction of the Parties, either Party may initiate arbitration procedures as set forth below:
2. Arbitration
Except as provided below, the Parties agree that any cause of action, legal claim, or dispute between the Parties arising out of or related to the services provided by Melon Local pursuant to this Agreement shall only be resolved by arbitration on an individual basis in accordance with JAMS Comprehensive Arbitration Rules & Procedures. A copy of which may be reviewed at: https://www.jamsadr.com/rules-comprehensive-arbitration/ and is incorporated by reference. As part of the arbitration, the Parties will have the opportunity for reasonable discovery of non-privilege information relevant to the dispute. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to prove relief warranted by the party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based. The arbitrator will decide the substance of all claims in accordance with applicable law and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Agents but is bound by the rulings in prior arbitrations involving the same Agent to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided the award may be challenged in a court of competent jurisdiction. BY AGREEING TO ARBITRATION, AGENT AND MELON LOCAL UNDERSTAND THEY ARE WAIVING THE RIGHT TO BRING AN ACTION IN COURT AND/OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT.
3. Choice of Law
The Agreement and this Arbitration Agreement are governed by and construed under the laws of the state of Nevada, without regard to any conflict of law rules or principles. This choice of law provision is only intended to specify the use of Nevada law to interpret this Agreement and is not intended to create any other substantive right to non-Nevadans to assert claims under Nevada law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions of this Agreement. In that event, the Parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
4. Class Action Waiver
To the fullest extent permitted by law, Agent and Melon Local agree to waive any and all statutory or common law right permitting or authorizing class or collective action through arbitration or otherwise. All claims, whether in arbitration or otherwise, must be asserted in individual/corporate capacity, and not as plaintiff or class member in any purported class or collection proceeding. SUBJECT TO THE ABOVE PROVISO, THE PARTIES WAIVE ANY RIGHT THEY MAY HAVE TO PURSUE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION PERTAINING TO ANY ARBITRABLE CLAIMS BETWEEN AGENT AND MELON LOCAL.
5. Location of Arbitration
Unless Agent and Melon Local agree otherwise, any arbitration hearing between the Parties shall take place in Las Vegas, Nevada.
6. Arbitration Fees and Awards
The arbitrator’s fees and costs of the arbitration will be borne by the Parties equally unless the arbitrator in his discretion makes a different provision in the final award. Except as provided by state or federal law, each party shall pay its own attorneys’ fees and pay any costs incurred in the litigation of claims such as costs to subpoena witnesses or take depositions. At the conclusion of the arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law.
8. Miscellaneous
1. License Grant and Reservation of Rights
Subject to ongoing compliance with the Agreement, Melon Local grants Agent a non-exclusive and non-transferable license during the subscription term to permit Users to access, implement and use the services solely for Agent’s direct beneficial business purposes. Agent’s rights to use the services are limited to those expressly set forth in the Agreement for any active Subscription, including limitations based on license type set forth therein. Melon Local retains all right, title, and interest in and to the services and all related intellectual property rights, including without limitation any modifications, updates, customizations, apps, or other add-ons unless otherwise expressly recited in the Agreement. Agent grants Melon Local a non-exclusive, worldwide, fully paid-up, royalty free right and license to use, copy, encode, adapt, modify, make improvements to, store, archive, distribute, transmit, communicate, publicly display, and publish Agent data, in whole or in part, as part of the subscriptions list, represent, register or establish accounts or keywords in connection with providing the subscriptions. Agent further agrees that Melon Local may display aspects of subscriptions, including, but not limited to website, in a design portfolio, in advertising and promotional materials, and for submission to third parties for a special recognition, honors, or awards.
2. Restrictions and Acceptable Use
Except as explicitly permitted under the Agreement, Agent must not do any of the following with the services: (i) use in violation of any applicable law or regulation; (ii) use in a manner that would cause a material risk to the security or operations of Melon Local or any of its other Agents; (iii) disassemble, decompile, or reverse engineer; (iv) redistribute, republish, sell, rent, lease, host, sub-license, or permit usage on a time-sharing basis as part of a hosted service or on behalf of any third party; (v) remove, obscure, or alter any proprietary notices; or (vi) circumvent, disable, or stress test any security or other technological features.
3. Results
Agent acknowledges search results, search engine rankings, and advertising results are influenced by several factors, and Melon Local does not make any promise or guarantee with respect to any position, placement, rank of website or ad in any search engine or advertising network channel, and Melon Local has made no guarantees, representations or warranties to Agent with respect to the results or performance of the subscriptions, including, but not limited to, the quality or volume of Internet traffic, business or revenue the subscriptions will generate.
4. Relationship of Parties
Melon Local and Agent are independent contractors. Neither Party is an agent, representative or partner of the other Party. Notwithstanding the foregoing, Agent expressly authorizes Melon Local to enter into any Agreements necessary to provide subscriptions on Agent’s behalf. This Agreement does not, and is not intended to, confer any rights or remedies upon any person other than Agent and Melon Local. Agent acknowledges that Melon Local provides subscriptions to other businesses throughout the country, and Agent agrees that nothing herein grants Agent an exclusive right to receive subscriptions from Melon Local. Agent agrees that Melon Local may provide subscriptions to any and all other businesses and such provision of these subscriptions does not give rise to a conflict of interest. This Agreement is also not intended to benefit, nor shall it be deemed to give rise to, any rights in any third-party. This Agreement and the performance of any duties hereunder may not be assigned, transferred, delegated, sold or otherwise disposed of in whole or in part by a Party other than with the prior written consent of the other Party. This Agreement will be binding upon and shall inure to the benefit of a Party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this section is null and void.
5. Integration And Severability
This Agreement is governed by the laws of the State of Nevada, excluding its conflict of laws principles and constitutes the entire understanding and Agreement between the Parties, oral or written, with respect to the subject matter of this Agreement and supersedes any and all prior or contemporaneous representations, understandings and Agreements related thereto, all of which are merged in this Agreement. If any provision of these terms or incorporated documents is found by the arbitrator or a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the arbitrator or court should endeavor to give effect to the Parties’ intentions as reflected in the respective provision(s), and the other provisions of these terms remain in full force and effect. Except for claims by Melon Local relating to Subscription Cost owed by the Agent, no claim, regardless of form or any statute or law to the contrary, which in any way arises out of this Agreement, may be made, nor action based upon such claim brought by either Party more than one (1) year after the Agreement terminates.
6. Indemnification
Agent agrees to indemnify, defend and hold harmless Melon Local, its successors, officers, directors, employees, designees and agents from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from the Agent data, Agent’s use of the subscriptions, or breach (or alleged breach) of Agent’s representations, warranties and covenants under the Agreement. Melon Local agrees to indemnify, defend and hold harmless Agent from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from the Melon Local website content or technology. The indemnification obligations under this article are subject to the indemnified Party: (i) promptly giving written notice of the claim to the indemnifying Party; (ii) giving the indemnifying party sole control of the defense, negotiation, and settlement of the indemnified portion of the claim; and (iii) providing the indemnifying Party with all reasonable assistance required to effectively defend the claim. Neither Party will have any indemnification obligation or liability regarding a third-party data security and privacy claim when acts or omissions of the indemnified Party impede or prevent the indemnifying Party’s ability to meet its data security and privacy obligations under the Agreement.
7. Force Majeure
Neither Party will be liable for, or be considered to be in breach of, the Agreement on account of any delay or failure to perform as required by the Agreement as a result of any unforeseeable or exceptional situation beyond its reasonable control, so long as the non-performing Party: (i) did not cause such situation by its own negligent acts or omissions and (ii) exercised all due diligence and used commercially reasonable efforts to avoid such situation and mitigate the impact.
8. Ownership
The Parties agree that, as between the Parties (i) the technology and any improvements thereto whether or not created under this Agreement are the exclusive property of Melon Local, and Agent shall not and will not acquire any ownership interest by reason of this Agreement nor make any efforts to acquire any Melon Local proprietary data; and (ii) Agent data is the exclusive property of Agent. During the term and thereafter, neither Party will use, disclose or provide to any third party the other party’s confidential information and/or property, except as expressly provided in this Agreement or as necessary for the Parties to perform their obligations or exercise or enforce their rights hereunder.
9. Electronic Contract
The following provision applies if the Agreement is accepted electronically. The Agreement is an electronic contract that sets out the legally binding terms of the subscriptions which must be acknowledged before this Agreement may be executed. By clicking on the “I Agree” button, Agent (or its authorized agent) acknowledges reading and accepting the Agreement, all of these Terms and Conditions, the Privacy Policy and represents, warrants and agrees that Agent (or its authorized agent) has the power, authority and legal right to enter into the Agreement.
10. Counterparts; Facsimiles; Electronic Record
This Agreement may be executed in any number of textually identical counterparts, each of which when so executed and delivered will be deemed an original, and such textually identical counterparts together will constitute one and the same instrument. Each Party will receive a duplicate original of the counterpart copy or copies executed by it. For purposes hereof, a facsimile or an electronic record or copy of this Agreement, including the signature pages hereto, will be deemed to be an original. Notwithstanding the foregoing, the Parties will each deliver original execution copies of this Agreement to one another as soon as practicable following execution thereof.
11. Notices of Dispute or Termination
Except as specifically provided in this Agreement, all notices, demands or other communications of dispute or termination required or permitted hereunder shall be in writing and shall be given as follows:
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- If by You: electronic mail (notice deemed effective on date of transmission) to email address (legal@melonlocal.com); and
- If by Melon Local: by electronic mail (notice deemed effective on date of transmission) to the email address listed in Agent’s account.
12. Pre-Existing Conflicting Melon Local Agreements
If any portion of this Agreement directly conflicts with other pre-existing Melon Local Agreements or any Melon Local partnership Agreements which prevents Melon Local from providing Agent with subscriptions, Melon Local shall notify Agent that a conflict exists and return all payments to Agent within a reasonable time of such discovery. Once Agent has received such notification and return payment, the Parties shall mutually cancel this Agreement wherein the Parties shall each expressly waive any and all claims, or causes of action against the other Party and release and hold them harmless from any and all claims or causes of action they may have under this Agreement. Further, the Parties further agree not to bring or cause to be brought any suit or any such claim or cause of action and acknowledges that the releases and waivers referred to herein shall apply regardless of whether liability is asserted on the basis of contract, strict liability or ordinary or gross negligence.
13. Confidential Information
The receiving Party will only use confidential information for the purposes of the Agreement and will not reproduce, disseminate, or disclose confidential information to any person, except to its employees and authorized representatives (e.g. consultants and contractors) who need to know the confidential information for the purposes of the Agreement and are bound by confidentiality obligations at least as restrictive as those in this section. The receiving Party will treat confidential information with the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. No Party may disclose the terms of this Agreement (including, for purposes of clarification, the pricing terms) to a third-party without prior written consent of the other Party.
14. Non-Melon Local Computer Programs/Software
Melon Local has sole discretion in determining what software to install and update on Melon Local’s servers. Any services which conflict with this section shall be null and void as of effective date. Client further expressly authorizes Melon Local to not provide these null and void services, where such non-performance is not a breach of this Agreement.
15. Disallowed Content
Melon Local reserves the right to refuse, modify, substitute or remove any Agent content, information or other materials that may (i) be deemed to violate the privacy, personal, proprietary, or contractual rights of third parties; (ii) be contrary to Melon Local’s practices; or (iii) defame, expose to legal liability, or otherwise harm Melon Local (collectively “Disallowed Content”).
16. Requests Beyond Scope of Agreement
If Agent ever asks for any additional services beyond the scope of this Agreement as Melon Local determines, Melon Local will provide Agent with an estimate which Agent must authorize in writing and make any recited payments before Melon Local will begin providing such additional work and/or Subscription.
17. Staffing
Melon Local shall have sole discretion in the manner of producing and delivery of services to Agent including directly or indirectly answering phone calls and/or communicating with Agent’s end-users at Agent’s direction if that is a subscribed to subscription.
18. Waiver; Survival
Should any provision of this Agreement be held void, invalid, unenforceable, or illegal by a court of law, the remaining provisions will remain valid and enforceable. Any of the provisions of this Agreement may be waived by the Party entitled to the benefit thereof. No Party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by an authorized agent of the waiving Party (which shall only be Melon Local’s legal department in the case of Melon Local), and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to, or waiver of, any right or remedy as to a subsequent event. Any provisions of this Agreement which impose an obligation or right after the termination or expiration date shall survive the termination or expiration of this Agreement and shall be binding on the Parties, and Agent expressly waives any statutory or other legal protection in conflict with these provisions. The termination or expiration of the Agreement will not affect any provisions of the Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, payment obligations, confidentiality, term and termination, effect of termination, intellectual property, license compliance, limitation of liability, privacy, content monitoring, and the Miscellaneous section in this Agreement.
19. Non-Solicitation
Agent expressly agrees that for the term and for thirty-six (36) months thereafter, Agent will not directly or indirectly solicit for employment, retain, employ, work with, enter into a contract or working relationship (either personally and/or with or through a third-party business) any Melon Local employee who was employed at any time during the term. Melon Local expressly agrees that for the solicit term, Melon Local will not solicit for employment, retain, or employ (directly or through another source) any employee of Agent who was employed at any time during the term.
20. Subscription Tiers
Certain subscriptions may be added, modified, removed, upgraded or downgraded at your discretion through written notice. Upon such subscription modification, you authorize us to charge the new prorated amount for the current term and to charge the new total subscription cost for all combined subscriptions thereafter to the respective payment method on file for your associated account. Please note that downgrading your plan may cause the loss of data, information, features or other functionality that is associated with your account in addition to a recalibration of your estimated future growth metrics. You bear all risk from downgrading any service and release Melon Local from all liability and consequences related thereto. In some cases Melon Local may add, modify, deprecate, diminish or remove certain features and functionality, but such changes will not have a materially adverse impact on Agent’s use of the services. Under these circumstances, Agent’s only remedy shall be to provide notice of termination of that respective Subscription within thirty (30) days of notice of change.
21. Additional Subscriptions
From time-to-time Melon Local may offer features or services that may be subject to additional or different terms and fees. Agent may not use these additional features and services unless You agree to the applicable terms. Melon Local may also provide access to subscriptions, features or services that are identified as beta or pre-release. Agent understands that such services are still in development, may have bugs or errors, may be feature incomplete, may materially change prior to a full commercial launch, or may never be released commercially. Despite any other provision of this Agreement, any use of or reliance on beta or pre-release subscriptions, features or services is done at Agent’s own risk and is provided as-is and without warranty of any kind, and the Melon Local indemnity section herein does not extend to such beta or pre-release features or services.
22. Feedback and Usage Analytics
Agent may provide feedback to Melon Local about the services (e.g. technical support input, suggestions, or enhancement requests) and generate usage analytics (e.g. non-identifiable technical data and metadata from usage of the services). Melon Local may use Agent’s feedback and anonymous usage analytics to: (i) compile statistical and performance information related to the services; (ii) improve the services; and (iii) develop and publish benchmarks and similar informational reports.
23. Technical Support Services
Melon Local’s standard technical support services are included at no-additional charge during the subscription term. Access to email or phone support is provided to Agent during normal business hours on weekdays (8AM-5PM Pacific Time) excluding nationally recognized holidays and/or Melon Local observed non-workdays. Access to online support resources are available 24×7 to all users.
24. Security
Melon Local will establish and maintain appropriate administrative, technical, and physical safeguards and controls to: (i) ensure the ongoing confidentiality, integrity, availability, and resilience of the services and Agent data; (ii) restore the availability and access to Agent data in a timely manner in the event of a physical or technical incident; and (iii) have in place a process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing through the services.
25. Data Processing
Melon Local will comply with applicable privacy and data protection laws governing its processing and storage of personal data in connection with its role as described in the Agreement.
26. Entire Agreement
The Agreement contains the entire understanding of the Parties relating to the subject matter and supersedes all earlier Agreements, understandings, proposals, discussions, negotiations, representations, and warranties, both written and oral, regarding the subject matter.