WEVO, Inc. Terms and Conditions
These terms and conditions are a legal agreement (this “Agreement”) between you (together with the business entity, if any, that you represent, “Customer,” “You” or “Your”) and Wevo, Inc., with offices at 50 Milk St 16th Floor Boston MA 02109 (“WEVO” or “we”, “us” or “our”), establishing terms and conditions under which You shall access and use WEVO’s conversion analytics and recommendation software services platform (the “SaaS Services”) through www.wevoconversion.com and any related sub-domains or portals through which the SaaS Services are made available (the “Website(s)”) and the professional services related to enhancing conversion of web pages (“Professional Services,” together with SaaS Services, the “Services”), to the extent You subscribe to such Services through our Website or directly through interactions with WEVO. The date You first agree to or accept this Agreement, or that You otherwise first access and use any Services following the date this Agreement is first made available on the Website, is referred to herein as the “Effective Date.”
BEFORE YOU CHECK THE “I AGREE” BOX OR CLICK ON THE “I ACCEPT” BUTTON OR OTHERWISE ACCESS OR USE THE WEBSITE OR SERVICES, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CHECKING THE “I AGREE” BOX OR CLICKING ON THE “I ACCEPT” BUTTON, ACCESSING OR USING THE WEBSITE OR SERVICES, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT. YOU HEREBY COVENANT TO ENSURE THAT ALL USERS THAT GAIN ACCESS TO THE SAAS SERVICES AND/OR THE SERVICES FROM YOU ARE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CHECK THE “I AGREE” BOX OR CLICK “I ACCEPT” AND YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE SERVICES.
PLEASE REVIEW THIS AGREEMENT BEFORE USING ANY SERVICES, AS THE TERMS OF THIS AGREEMENT MAY HAVE CHANGED SINCE YOUR LAST VISIT.
WEVO reserves the right to revise this Agreement in its sole discretion at any time and without prior notice to you other than by posting the revised Agreement on our Website. Revisions to the Agreement are effective upon the first renewal of your subscription following such posting. Your subscription or renewal of your subscription to any Services after a revised version of this Agreement has been posted on our Website constitutes your binding acceptance of the revised Agreement.
Services and Support.
a. You may access our Website without subscribing to our Services. However, you will not be able to access or use our Services, other than merely reviewing the content on our Website, reviewing a demonstration of our Services and, where applicable, downloading promotional content specifically identified as being available for download, without subscribing to our Services through the Website. All of our Website and all content you may access, view or download through our Website is AS IS without any warranties, express or implied, except for Services for which You have subscribed for a fee through an Order Form (which may or may not contain a separate warranty in respect of such Services). You may subscribe to our Services through completion and agreement of a subscription and/or order form on our Website or in a separate written order form between You and WEVO (in either case, an “Order Form”), each of which Order Forms are incorporated herein by reference. Any such Order Forms are binding and any amounts You pay hereunder or thereunder are non-refundable.
b. Subject to the terms of this Agreement and your subscription to our Services through an Order Form, WEVO hereby grants to You, during the Term or for such other period specified in the applicable Order Form, a limited, non-exclusive, non-transferable, non-sublicensable right and license for Your employees and individual independent contractors (“Users”) to access and use the Services, solely for Your internal business purposes and not for the benefit of any other person or entity, unless otherwise agreed in a separate agreement between You and WEVO. No rights or licenses are granted except as expressly set forth herein.
c. Subject to the terms of this Agreement and your subscription to our Services through an Order Form, WEVO will use commercially reasonable efforts to provide You with the Services. As part of the registration process on the Website or in the Order Form, You will identify a User to be an administrator, and WEVO shall provide such User with an administrative user name and password for Your WEVO account. The administrator with such user name and password will be responsible for creating user names and passwords (together with the administrator user name and password, the “User Credentials”) for all other Users. You shall ensure that each User uses only his or her own User Credentials, and does not share such User Credentials with any third party. You are responsible for all use of such User Credentials.
d. Subject to the terms of this Agreement, in connection with Your use of the Services, WEVO will provide You with support in accordance with WEVO’s standard practices at the time.
e. WEVO may utilize subcontractors from time to time in its performance of the Services, including third party ‘crowdsourced’ individuals who are not under direct contract with WEVO. WEVO is responsible for its subcontractors acts and omissions as if such acts or omissions were by WEVO hereunder, except that WEVO shall not be responsible for any acts or omissions of the third party ‘crowdsourced’ individuals who WEVO utilizes in connection with the Services .
Customer Restrictions and Responsibilities.
a. You shall provide WEVO with such Customer Data (as defined below) as is reasonably necessary for WEVO to perform the Services and as WEVO may reasonably request from time to time. WEVO is not responsible for delays in performing the Services which arise from delays in provision of such Customer Data or any other disruption in Services due to problems arising from such Customer Data.
b. You shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to Services or any Software, Documentation or Data; (ii) modify, translate or prepare derivative works of Services or any Software, Documentation or Data; (iii) use Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove any proprietary notices or labels from Services or any Software or Documentation; (v) publish or disclose to any third party any evaluation of Services; (vi) interfere with or disrupt the integrity or performance of any Services; or (vii) attempt or permit any of the foregoing. “Software” means any software relating to the Services, “Documentation” means any documentation relating to the Services and “Data” means any data that is used, analyzed or stored by Services, including designs, webpages, videos or other content.
Confidentiality; IP Rights.
a. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Confidential Information”). Confidential Information of WEVO includes information regarding features, functionality and performance of Services. Confidential Information of Customer includes Data provided by Customer to WEVO to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take precautions to protect Confidential Information of the Disclosing Party consistent with the precautions it takes for its own Confidential Information of a similar nature, but at least reasonable precautions, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any Confidential Information of the Disclosing Party.
b. The obligations set forth in Section 3(a) shall continue until five (5) years following the disclosure of the applicable Confidential Information, and shall not apply to information that: (i) is or becomes generally available to the public; (ii) was in the Receiving Party’s possession or known by the Receiving Party prior to receipt from the Disclosing Party; or (iii) was independently developed without use of any Confidential Information of the Disclosing Party. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party as required by applicable law or court order, or to protect its rights, including as evidence in litigation. WEVO may disclose Customer Data to its subcontractors so long as such subcontractors, other than ‘crowdsourced” contributors, are subject to confidentiality terms consistent with this Section 3.
c. You shall own all right, title and interest in and to the Customer Data, except that You hereby grant WEVO a perpetual, irrevocable, worldwide, transferable, sublicensable (through multiple tiers), royalty-free, non-exclusive license to use Customer Data (i) to provide Services; (ii) to create output from the Services using Customer Data (“Output Data”); and (iii) for the purposes set forth in Section 3(e). WEVO shall own all right, title and interest in and to (1) the Services and Software, and all improvements, enhancements or modifications to Services or Software; (2) any software, applications, inventions or other technology developed in connection with the Services or support; (3) Output Data; and (4) any intellectual property rights related to any of the foregoing.
d. WEVO may provide Customer with Output Data from time to time. Subject to the terms of this Agreement, WEVO grants Customer a non-transferable, non-sublicensable, non-exclusive license to use Output Data solely for Customer’s internal business purposes and not for the benefit of a third party, unless otherwise agreed in a separate agreement by WEVO and Customer.
e. WEVO has the right to collect and analyze data relating to provision, use and performance of Services, and WEVO may (i) use such data to improve Services, including through the use of automatic or machine learning, and for other development, diagnostic and corrective purposes in connection with Services or other WEVO offerings; (ii) disclose such data solely in aggregate or de-identified form; and (c) and use such improvements or make such disclosures without limitation hereunder.
f. Customer acknowledges that the Services and all intellectual property rights therein are the sole and exclusive property of WEVO or its licensors. All inventions, works of authorship or other developments conceived, written or otherwise generated by or for WEVO, whether solely or jointly, related to the Services (“WEVO Developments”) are the sole property of WEVO. Customer hereby assigns all of its right, title or interest in each WEVO Development, including any intellectual property rights therein, to WEVO.
g. Customer hereby grants to WEVO a perpetual, irrevocable, worldwide, transferable, sublicensable (through multiple tiers), royalty-free, non-exclusive license to Your suggestions, comments or other feedback regarding Services, Software and Documentation, to reproduce, distribute, prepare derivative works of, modify, translate, adapt, publicly perform, and otherwise exploit any such suggestion, comment or other feedback.
Payment of Fees.
a. Customer shall pay WEVO the fees set forth on the Website (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form, WEVO may invoice Customer for additional fees at any time following the month in which Customer exceeded such Services Capacity. WEVO may change the Fees for any renewal term by providing Customer notice (which may be sent by email) at least sixty (60) days prior to end of the then-current Term. Any taxes imposed on Services, other than taxes on the income of WEVO, shall be for the account of Customer.
b. Fees are payable within thirty (30) days after WEVO has invoiced Customer. Interest shall accrue on unpaid amounts at a rate of the lesser of one percent (1%) per month and the maximum rate permitted by applicable law, until such amounts are paid in full. Customer shall be responsible for all expenses of collection.
c. To the extent that Customer pays any advance for Service Fees for a specific period (“Advance”) under the Order Form or as may be agreed through the Website, then regardless of the Services subscribed to pursuant to an Order Form, the full amount of such Advance shall be deemed to have been earned by WEVO at the end of such period, without any obligation to refund any such Advance for any reason.
d. In the event the Order Form or separate agreement between the parties identifies any money back guarantee for certain Services, such guarantee shall be computed solely as set forth on such Order Form or agreement and solely for the amounts paid for such Services during the period of such guarantee specified in such Order Form or agreement and shall not be greater than the specific amount of such guarantee specified therein.
Term and Termination.
a. The term of this Agreement is from the Effective Date until the termination of this Agreement. The term of Your subscription to the Services shall be for the Initial Term set forth in the Order Form, which shall (unless otherwise set forth in the applicable Order Form) automatically renew for additional periods of the same duration as the Initial Term (collectively, the “Term”), unless either party notifies the other party at least thirty (30) days prior to the end of the then-current Term, requesting termination of this Agreement.
b. Either party may terminate this Agreement upon thirty (30) days’ notice or without notice in the case of nonpayment or if the other party materially breaches any of the terms or conditions of this Agreement. WEVO shall not be obligated to refund any prepaid Fees.
c. Accrued obligations, and the following Sections of this Agreement shall survive any termination thereof: 2(b), 3, 4, 5(c), 6(c), 7 and 8. In addition, WEVO shall maintain, and make available to Customer, Customer Data that is stored on the SAAS Services for a period of up to thirty (30) days after termination.
d. Without limiting WEVO’s other remedies under this Agreement, WEVO may limit, suspend or terminate Your access to or use of the Service at any time if: (i) Your use of the Services exceeds or violates any limitation set forth in the applicable Order Form; (ii) in the sole discretion of WEVO, such action is necessary to prevent material errors or harm to any system or network, or to limit WEVO’s liability; or (iii) You attempt to access or use the Service in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to any other users of the Services or any use that infringes third party intellectual property rights or violates any applicable law, rule or regulation.
Representations, Warranties and Disclaimer.
a. For a period of sixty (60) days from your acceptance of this Agreement, WEVO covenants to Customer that WEVO shall perform Services in a professional and workmanlike manner. As Customer’s sole and exclusive remedy in the event of a breach of such warranty, WEVO shall re-perform the applicable Services one (1) time following Customer’s notice specifying the breach.
b. Customer represents, warrants and covenants to WEVO that WEVO has the right to provide the Customer Data to WEVO for the purposes of this Agreement without violating any applicable law or any contractual commitment or imposing on WEVO any financial obligation or legal liability. Customer will indemnity and hold WEVO harmless from any damages of any kind arising out of any third party claim relating to the Customer Data.
c. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), THE SERVICES, ANY RESULTS THEREFROM AND ANY OUTPUT DATA ARE PROVIDED “AS IS” AND WEVO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WEVO does not warrant that the Services will be uninterrupted or error free.
d. You acknowledge that: (i) the Service uses the Internet for data transfer and Internet-connected servers to store Customer Data; (ii) while WEVO uses commercially reasonable security measures with respect to such servers, no security measures are 100% effective, and (iii) that Internet communications have inherent insecurities. As such, WEVO does not represent or warrant the security of the Customer Data or the Services generally.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR BODILY INJURY OF A PERSON, WEVO AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES; (C) FOR ANY MATTER BEYOND WEVO’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY CUSTOMER TO WEVO FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENTS THAT GAVE RISE TO THE MOST RECENT CLAIM, IN EACH CASE, WHETHER OR NOT WEVO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
a. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
b. This Agreement is not assignable, transferable or sublicensable by Customer except with WEVO’s prior written consent.
c. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous click through or on-line or oral agreements, communications and other understandings relating to the subject matter of this Agreement; provided that this Agreement shall be subject to any conflicting written agreement between You and Wevo. Any modification or other amendment of this Agreement must be in writing and signed by both parties, and any waiver of this Agreement must be in writing and signed by the party granting such waiver, except as otherwise provided herein.
d. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind WEVO in any respect whatsoever.
e. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
f. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Wevo’s address for notices is: 50 Milk St 16th Floor Boston MA 02109. Your address for notices shall be the e-mail address you provide when you register in an Order Form.
g. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of Laws provisions. Each Party consents to the exclusive jurisdiction of federal or state courts located in Boston, Massachusetts to resolve any dispute hereunder.
h. The parties shall cooperate to issue at least one mutually agreed upon press release within ninety (90) days after the Effective Date, and Customer agrees to reasonably cooperate with WEVO to serve as a reference account upon request. During the Term, WEVO may include Customer’s name and logo as a customer of WEVO, including on WEVO’s website.
i. The word “including”, “includes” and “include” shall be deemed to be followed by “without limitation”. References to a “party” mean Customer or WEVO. Headings of this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
j. This Agreement is not intended to, and does not, create a right or cause of action in any person or entity other than the parties.
k. WEVO will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
For Additional Information.
If you have any questions about these Terms, please contact us at: 50 Milk St 16th Floor Boston MA 02109 or via firstname.lastname@example.org.
Copyright © 2019, Wevo, Inc. All Rights Reserved.
Updated: July 17th, 2019