ELLY ELITE PHOTOGRAPHY Terms and Conditions
This Advertiser Listing Agreement (this “Agreement”) is a legal agreement between “ELLY ELITE PHOTOGRAPHY corporation, and the business by which the individual accepting this Agreement is employed or otherwise engaged (the “Client” or “you”). This Agreement governs in entirety the relationship between ELLY ELITE PHOTOGRAPHY and the Client in connection with the ELLY ELITE PHOTOGRAPHY Calls Service (the “Service”).
YOU WILL NOT BE PERMITTED TO PARTICIPATE IN THE SERVICE UNLESS YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- Description of the Service
1.1 Directory of Service Providers; User Searches. Through the business directory web sites of ELLY ELITE PHOTOGRAPHY, its affiliated companies and/or its online partners (each, a “Web Site”), individuals (“Users”) identify themselves as interested in finding a service provider that provides services relevant to a particular business vertical (each, a “Service Provider”) within or near a certain zip code or other geographic area. The User is provided search results consisting of participating Service Providers that are listed in such Web Site’s directory of Service Providers (the “Directory”) that are in or near the User’s selected zip code or other geographic area.
1.2 The User Contacts the Client. Contained in the search results displayed in response to each User request will be a phone number owned by ELLY ELITE PHOTOGRAPHY, which will be assigned to the corresponding Service Provider listing, which may be the Client. If the User chooses to contact the Client by phone, we will re-direct the phone call through our system to the phone number you have provided to us during the Service registration process. The User may also contact the Client via an email off of the ellyelite.com or affiliated website. Basic information will be collected such as name, phone, email, zip code, and that will be forwarded to a matching medical provider, which may be the Client. This will be forwarded to the email address provided during the registration provided. The third mechanism will be if interested patients call the toll free number. The same information will be captured, and an email will be sent to the Client’s email address on file if the geography matches to the provider.
1.3 Recording of Calls. As part of our service, we offer the ability to record on your behalf the inbound phone calls of Users contacting the Client through the phone number associated with the Client’s listing. The Client hereby consents to our recording of all calls routed to the Client through the Service. The Client agrees to our notification of each User that a phone call placed to the Client through the Service is being recorded. Phone calls placed to the Client will be sent to your email account (the “Inbox”) for your review regularly. ELLY ELITE PHOTOGRAPHY may remove call recordings older than 60 days from your account as needed.
- Your Obligations
2.1 Provide Up-To-Date Contact Methods. Client agrees to provide ELLY ELITE PHOTOGRAPHY with an up-to-date, working phone number to which we may route User inquiries. Client agrees to staff sales and customer service representatives to answer all User calls placed to Client’s phone number as they arrive.
2.2 Listings. Each Service Provider participating in the Service is able to customize its own listing with items such as logos, photos, and descriptions of its services, facilities and personnel (to the maximum characters allowed). All Service Providers shall be entitled and enabled with the same customization capabilities. Client shall make reasonable efforts to ensure that all content provided for display within Client’s Web Site listing(s) is accurate, up-to-date and not misleading, and complies with all applicable laws and regulations (including, but not limited to, any applicable laws and regulations governing advertising that are applicable to Client’s business). Client understands that any contact information, including, but not limited to, phone numbers, URLs, or email addresses is not permitted in their profile, except where otherwise indicated. ELLY ELITE PHOTOGRAPHY reserves the right to syndicate the content of Client’s listing to partner websites. ELLY ELITE PHOTOGRAPHY does not undertake any obligation to screen or otherwise determine whether or not content provided by Client complies with applicable law and regulations.
2.3 Relationship with Users. Client is solely responsible for all aspects of Client’s relationship with Users. ELLY ELITE PHOTOGRAPHY makes no representation as to the number of Users who will contact you through the Service.
2.4 Review of Inbox. Client will review the calls sent to Client’s email at least once every thirty (30) days. In the event that you have any questions or believe that there are any discrepancies in your Inbox, you will notify us within thirty (30) days of the email of the call being sent. If there is a dispute between you and us regarding what you are charged for, both you and us will cooperate in good faith to resolve the dispute.
2.5 Privacy. Client is responsible for protecting the privacy of Users. Client agrees not to disclose any personal information or data obtained through the Service regarding any User (the “User Data”) to any third party for any reason whatsoever without the prior consent of the User, unless revealing the User Data is necessary to comply with applicable law or regulation.
2.6 Licensing and Accreditation; Compliance with Industry Standards and Law. Client agrees to maintain all applicable industry accreditations and all necessary federal, state and local government licenses required to operate as a listed Service Provider in the state(s) in which Client is/are located. Client agrees to maintain and operate as a listed Service Provider in accordance with generally accepted industry standards, and in accordance with all applicable laws and regulations.
3.1 Fees. In consideration of the advertising services that we provide through the Service, Client agrees to pay ELLY ELITE PHOTOGRAPHY a variable fee (the “Fee”) for each relevant call (the “Relevant Call”) originated through the Service (each a “Billable Event”). A “Relevant Call” is currently defined as a call from a user inquiring about a service offered by the Client, as determined by our call quality system.
3.2 Billing. ELLY ELITE PHOTOGRAPHY will bill Client’s credit card (provided at registration) following the end of each Billing Cycle for the Fees for all Billable Events that occurred during such Billing Cycle as well as for any outstanding balances. The “Billing Cycle” is currently defined as starting on the day Client connected to ELLY ELITE PHOTOGRAPHY calls and occurring weekly, though we reserve the right to change the Billing Cycle at any time. Any and all late payments shall accrue interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by law, whichever is less). In addition, Client is responsible for paying any reasonable expenses and attorneys fees that we incur in connection with collecting late amounts.
4.1 License. Client hereby grants ELLY ELITE PHOTOGRAPHY a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of ellyelite.com or affiliated’s business) right and license to use Client’s service marks on any of our websites or other marketing materials to indicate your participation in the Service. We may sublicense this right to any of our affiliates and online partners. This license will terminate in the event this Agreement is terminated pursuant to Section 5, in which we will remove your marks from our websites and marketing materials within a commercially reasonable period of time.
- Term and Termination
5.1 Term. This Agreement is effective as of the date you register for the Service and shall remain in full force and effect until terminated by either party in accordance with this Section 5.
5.2 Termination by Client. Client may terminate this Agreement and disconnect your Service at any time for convenience upon notice to ELLY ELITE PHOTOGRAPHY (which may be provided by email or by letter) with a 30 day discontinuation. Unless a specific agreement states otherwise, client termination will take 30 days minimum to take effect. Upon such termination, ELLY ELITE PHOTOGRAPHY will bill your credit card for the Fees for all Billable Events that occurred during the Billing Cycle up to the date of termination as well as for any outstanding balances. In addition, the Directory will cease listing you as a participating Service Provider.
5.3 Termination by ELLY ELITE PHOTOGRAPHY. We may terminate this Agreement and disconnect your Service at any time for convenience at any time upon notice (which we may provide by email).
5.4 Survival. In the event of any termination of this Agreement, Client will remain responsible for any Fees with respect to any Billable Events occurring prior to the effective date of termination, which as noted will take 30 days minimum. In addition, the following provisions shall survive any termination of this Agreement: this Section 5.4 (“Survival”), Section 6 (“Disclaimer and Limitation of Liability”), Section 7 (“Indemnification”), Section 8 (“Representations and Warranties”) and Section 9 (“General Provisions”).
- Disclaimer and Limitation of Liability.
6.1 THE SERVICE AND ANY OTHER SERVICES PROVIDED BY ELLY ELITE PHOTOGRAPHY IN CONNECTION WITH THIS AGREEMENT ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, ELLY ELITE PHOTOGRAPHY 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ELLY ELITE PHOTOGRAPHY DOES NOT WARRANT OR GUARANTY THE NUMBER OF USER INQUIRIES, APPOINTMENTS, RESPONSE RATES AND/OR PLACEMENT RATES. ELLY ELITE PHOTOGRAPHY AND OTHER WEBSITES, DATABASES AND/OR PROGRAMS MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. ELLY ELITE PHOTOGRAPHY HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF, OR INABILITY TO USE, ELLY ELITE PHOTOGRAPHY WEBSITES, DATABASES AND/OR PROGRAMS. ELLY ELITE PHOTOGRAPHY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS, PRIVACY PROTECTION PROCEDURES AND/OR ANY PARTY’S USE OF ELLY ELITE PHOTOGRAPHY’S WEBSITE, DATABASES AND/OR PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. ELLY ELITE PHOTOGRAPHY MAKES NO GUARANTEES, AND ACCEPTS NO LIABILITY FOR, THE NUMBER OR CHARACTERISTICS OF LEADS THE DIRECTORY WILL MAKE TO YOUR BUSINESS. IN NO EVENT SHALL ELLY ELITE PHOTOGRAPHY BE RESPONSIBLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF ELLY ELITE PHOTOGRAPHY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ELLY ELITE PHOTOGRAPHY WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT, AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND ELLY ELITE PHOTOGRAPHY’S CONTROL. IN ADDITION, AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ELLY ELITE PHOTOGRAPHY’S LIABILITY UNDER ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE LESSER OF $500 OR THE FEES PAID TO ELLY ELITE PHOTOGRAPHY BY YOU PURSUANT TO THE AGREEMENT OVER THE ONE (1) MONTH PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. ELLY ELITE PHOTOGRAPHY SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF ITS AFFILIATES OR SUB-LICENSEES.
7.1 Indemnification. Client will defend, indemnify, and hold harmless, ELLY ELITE PHOTOGRAPHY and its affiliates, and each of our 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 participation in the Service; (c) any allegation that you have infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (c) any claim by any User or any other third party related to you or your services; and (d) any User dispute with you, any injury suffered by a User at your place of business or any other User-related issue.
- Representations and Warranties
You represent, warrant and covenant that at all times during the term of this Agreement:
8.1 The individual accepting this Agreement is authorized to act on behalf of you and to bind you to this Agreement;
8.2 You have the full power and authority to conduct your business, to enter into this Agreement, and to perform your obligations under this Agreement;
8.3 Your execution, delivery and performance of this Agreement will not conflict with or violate: (a) any provision of law, rule or regulation to which you are subject; (b) any order, judgment or decree applicable to you; (c) any provision of your organizational documents; or (d) any agreement or other instrument applicable to you; and
8.4 You will comply with all applicable federal, state and local laws, rules, regulations, court orders, judgments and decrees.
- General Provisions
9.1 Confidentiality. You may not disclose the terms or conditions of this Agreement or the amount of the Fees to any third party, except to your professional advisors under a strict duty of confidentiality or as necessary to comply with applicable laws or regulations.
9.2 Notices. All notices to ELLY ELITE PHOTOGRAPHY shall be sent to ELLY ELITE PHOTOGRAPHY, Inc. at 8787 East Mountain View Road #1025, Scottsdale, AZ, attention President. Any notices to Client may be effected by sending an email to the email address specified in Client’s Inbox or by posting a message to Client’s Inbox, and shall be deemed received when sent (for email) or twenty-four (24) hours after having been posted (for messages in Client’s Inbox).
9.3 Policies. Client’s participation in the Service shall be subject to all applicable ELLY ELITE PHOTOGRAPHY 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 ELLY ELITE PHOTOGRAPHY at any time. The latest Policies can be found on any of our websites. You should review the Policies regularly. By your continued participation in a Service, you agree to all of the associated terms and conditions contained within the Policies effective at that time.
9.4 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than any obligation to make payments) 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.
9.5 Waiver. 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.
9.6 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.
9.7 Governing Law and Forum. This Agreement, and any disputes arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to its choice of law provisions. Each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts.
9.8 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. We may modify the terms of this Agreement at any time without liability, and your use of the Service after notice that the terms of this Agreement have changed constitutes your acceptance of the new terms.
9.9 Headings. 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.
9.10 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.
Last edited: July 10, 2016