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Last Updated: April 20, 2009
Thank you for signing up for the ExactFactor
SEO&GO Search Engine Optimization Service (the “Service”) including
without limitation (i) the ExactFactor SEO&GO software (such software, together
with any other programs, tools, services, upgrades, bug fixes, documentation and
updates if any, and the underlying code thereto, provided or made available to
you by ExactFactor Ltd., the "Software"), (ii) use of and access to the
SEO&GO interface located at
www.exactfactor.com (the “Site”) (such interface, together
with any other programs, tools, services, upgrades, bug fixes and updates if
any, and the underlying code thereto, provided or made available to you by
ExactFactor Ltd., the “Interface”), and (iii) access to the results,
output, reports, statistics or materials we make available to you as part of the
Service (whether tangible or intangible, communicated in writing or orally, or
made available to you via the Site or by another means whatsoever) (the “Reports”).This
services agreement (the "Agreement") is a legal agreement between you, a
user registered on the Site ("Licensee", "you", "your"), and ExactFactor
Ltd. ("ExactFactor," "we", "our" or "us").
Please read this Agreement carefully AND CHECK IT PERIODICALLY FOR CHANGES. By selecting the “I
agree to the Terms and Conditions” box on the “Download Software” page and
clicking the “YES” button on the same page OR ANY INSTALLATION OR USE OF THE
SOFTWARE, you are consenting to be bound by and are becoming a party to this
Agreement, personally or on behalf of a legal entity that will be using THE
SOFTWARE. WE MAY CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME(S) AND IN OUR
SOLE DISCRETION, UPON POSTING NOTICE ON THE SITE.
You hereby represent and warrant that you have
adequate legal power and capacity to enter into this Agreement and are
authorized to bind any entity on whose behalf you are acting. If you do not
agree with or understand all of these terms, you must not install, access or
make any use of the Software whatsoever. The effective date (“Effective Date”)
shall be the date upon which you accept the terms of this Agreement, or
otherwise make use of the Software.
IT IS HEREBY AGREED AS FOLLOWS:
1. NON-EXCLUSIVE LICENSE GRANT AND
RESTRICTIONS.
1.1 Subject to the
terms and conditions of this Agreement and all other guidelines or rules
applicable to the Service posted (currently or subsequently) on the Site
(including without limitation the Privacy Policy and Terms and Conditions
(collectively, the "Rules")), including without limitation the payment of
applicable fees, ExactFactor grants you a revocable, personal, limited,
non-exclusive, non-transferable non-sublicensable license, solely for its
intended purposes and subject to the terms of the Rules, to (i) install the
Software on one or more pages of the website that you own or control
(collectively the “Target Site”), (ii) remotely use and access the
Interface, and (iii) view and access the Reports.
1.2 Certain
components distributed with the Software are not licensed under this Agreement,
but rather under licenses granted by third parties. Any use of such components
is subject to compliance with such third party licenses.
1.3 You agree to
promptly inform us in writing as to any problems encountered with the Service,
if any, any modifications, design changes and improvements suggested to the
Service, and misuse of the Service by any third party that you become aware of
from time to time. We shall have the right, but not the obligation, to make
modifications to the Service based upon your suggestions. Any such modifications and any other
use of your feedback to us regarding the Service shall be the sole property of
ExactFactor, notwithstanding anything to the contrary.
1.4 You shall not,
nor shall you allow any third party to, do any of the following:
(i)
use the Service to promote, conduct, or contribute to fraudulent, obscene,
pornographic or illegal activities, including without limitation deceptive
impersonation;
(ii)
assign, transfer, pledge, lease, rent or distribute the Service;
(iii)
separate any component part of the Service, or separately use any component part
thereof on any equipment, machinery, hardware or system;
(iv)
permit any third party to benefit from the use or functionality of the Service
via a rental, lease, timesharing, service bureau, or other arrangement;
(v)
work around any technical limitations in the Service, or use any tool to enable
features or functionalities that are otherwise disabled in the Service;
(vi)
decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct
or discover any underlying ideas, algorithms, file formats or programming or
interoperability interfaces of the Software or the Interface by any means
whatsoever except as otherwise permitted by applicable law;
(vii)
copy, modify, incorporate into or with other software, adapt, translate or
otherwise create derivative works of the Service; or
(viii)use
similar processes and functions to develop competing features or functions with
the Service.
2. SEARCH ENGINE OPTIMIZATION.
2.1 During your
registration to the Service, you will be entitled to propose a certain number of
keywords or phrases that describe the Target Site. We shall consider such
phrases or keywords, but as part of the Services shall use such phrases or
keywords as we determine in our sole discretion are recommended in order to
optimize the organic ranking and positioning of the Target Site in search
engines and web directories that are frequently used by the general public.
2.2 By installing
the Software on the Target Site, you hereby acknowledge and grant us a license
to (i) change and edit various html tags and page text on the Target Site, (ii)
obtain and use information regarding the use of the Target Site, and (iii) take
all such actions as reasonably necessary to provide the Service.
2.3 In order to
perform the Services, you hereby authorize us to use, advertise and market the
Target Site and its URL, including without limitation to submit on your behalf
the URL to online search engines and directories, in our sole discretion.
3. FEES.
If you wish to use the Services, you must pay the required fees associated with
such use, including without limitation upfront and monthly fees as applicable,
pursuant to the terms of this Agreement, in accordance with the payment policies
in effect from time to time as displayed on the Site. We may, in our sole
discretion, change our payment policies by posting such change on
www.exactfactor.com (or such other URL we specify from time to time) or
notifying you via email at the email address provided by you to us. Your
continued use of the Service following any such notification will represent your
acceptance to the change. You are responsible for paying all fees and applicable
taxes associated with the Services in a timely manner with a valid payment
method.
The invoicing of fees and processing of payments
in connection with the Services, including among others support with respect to
such payments, are handled by online third parties. Payment methods, tax
liability and the collection and use of your personal information, including
among others payment details, are subject to the terms of use and privacy policy
of such third parties. In addition to reviewing this Agreement and our
Privacy Policy, we recommend that you review the terms of use and privacy policy
of such third parties before submitting any personal information and using such
third parties' services.
All fees paid and commitments to pay in
connection with the Services are non-refundable and non-cancelable. To
terminate recurring billing, you must submit to us in writing, at least seven
(7) days in advance, a request to terminate such recurring billing.
4. RESERVATION OF
RIGHTS AND OWNERSHIP.
The Software and the Interface is licensed not sold, and
ExactFactor reserves all rights not expressly granted to you in this Agreement.
The Service and all intellectual property rights thereto, are protected by
copyright, trade secret and other intellectual property laws. ExactFactor and
its licensors own the title, copyright, and other worldwide intellectual
property rights in the Software, the Interface and all copies thereto. This
Agreement does not grant you any rights to trademarks, trade names, service
marks, logos, domain names and other distinctive brand features associated with
ExactFactor or the Service.
5. REGISTRATION DATA.
5.1 In order to use
the Services as contemplated hereunder, you must first register on the Site. As
part of the process, you will be requested to provide certain information,
including among others, a unique user identification, a password, and correct
URL for the Target Site (“Registration Data”). You agree to:
(i)
Provide true, accurate, current and complete Registration Data as prompted by
the registration process;
(ii)
Maintain and promptly update the Registration Data to keep it accurate, current
and complete;
(iii)
Maintain the security and confidentiality of your password, other Registration
Data and any other security or access information used by you to access the Site
or Service;
(iv)
Ensure that you log out from your account at the end of each session on the
Site; and
(v)
Immediately notify us in writing if you become aware of any loss, theft or use
by any other person or entity other than you, of any of your Registration Data.
5.2 Any
communications and other activities through use of your Registration Data will
be deemed as sent or authorized by you, and you are fully responsible for all
activities that occur in connection with your Registration Data.
5.3 You agree that
we may for any reason, in our sole discretion and without notice or liability to
you or any third party, immediately suspend or terminate your account and
disable and/or refuse any and all current or future access to and use of the
Service (or any portion thereof). Grounds for such termination may include, but
are not limited to, loss, theft or unauthorized use of your Registration Data,
violation of the letter or spirit of this Agreement, providing Registration Data
that is inappropriate or offensive in our discretion, or if we have reasonable
grounds to suspect any of the Registration Data that you provided is inaccurate,
not current or incomplete.
6. CONFIDENTIALITY.
6.1 The Services
and our approach and methods in providing the Services constitute valuable
proprietary information of ExactFactor and our licensors and unauthorized
dissemination or disclosure of the Software or the Interface could cause
ExactFactor irreparable harm. “Confidential Information”
means any proprietary information which is disclosed by us or our affiliates
(including without limitation information of affiliates and third parties),
whether tangible or intangible, including but not limited to, information
relating to the Software or the Interface, the know-how, algorithms, inventions
(whether reduced to practice or not), discoveries, concepts, ideas, past,
current and planned research or development work, and current and anticipated
customer requirements, except any portion thereof which is now available or
later becomes available to the public without breach of this Agreement, is
lawfully obtained from a third party or parties who are under no obligation of
confidentiality to us , or is known to you prior to such disclosure as evidenced
by your written records.
6.2 During the term of
this Agreement and also after its expiration or termination, you shall:
(i)
hold in strict confidence all Confidential Information;
(ii)
limit access to the Confidential Information
to those of your employees and consultants who need to have access to such
information or material for the
purpose of your use of the Software under this Agreement and who are obligated
to maintain confidentiality sufficient to protect our rights in the Confidential
Information;
(iii)
protect the confidentiality of the Confidential Information
with the same degree of care as for your own information of like importance, but
at least use reasonable care and shall not use the Confidential
Information except for exercising your rights hereunder; and
(iv)
Promptly after termination of the license granted by us pursuant to this
Agreement, return to us all materials containing our Confidential Information,
upon our first demand.
6.3 Notwithstanding
anything to the contrary, we may use your name and logo solely for the
promotional purposes of the marketing and sale of the Service, on the Site,
brochures, presentations and any other marketing material.
7. PRIVACY.
You acknowledge and agree that certain information about you, including among
others your payment details as well as
visitors to the Target Site may be collected and used by ExactFactor in
accordance with the terms of our Privacy Policy as in effect from time to time
(located at
http://www.exactfactor.com/PrivacyPolicy.aspx).
You further agree that you will not (and will not allow any third party to) use
the Software to track or collect personally identifiable information of any
third party, nor will you (or will you allow any third party) to associate any
data gathered by you from a use by a visitor to your website of the Software
with any personally identifying information of such visitor.
8. INDEMNIFICATION.
You release, and agree, at your own expense, to indemnify, defend and hold
harmless ExactFactor, our officers, directors, employees, agents and affiliates,
from all liabilities, claims, loss and damages (of every kind, whether know of
unknown, suspected or unsuspected), and including reasonable attorney’s fees
related in any way to: (i) your breach of any term or condition of this
Agreement, (ii) the use of, reliance on or access to, the Services by you, or
any other, (iii) the use of, reliance on or access to any third party software,
applications or data resulting from a use of the Service by you or any other,
(iv) violations of any applicable laws, rules or regulations. We will provide
you with written notice of such claim, suit or action. You shall cooperate fully
in the defense of any claim. We reserve the right, at our own expense, to assume
the exclusive defense and control of any matter subject to indemnification by
you.
9.
DISCLAIMER OF WARRANTIES.
YOU ACKNOWLEDGE AND
AGREE THAT YOUR USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND
THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING CONSEQUENCES.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR
AFFILIATES, LICENSORS, THIRD-PARTY CONTENT SERVICE PROVIDERS, AND SUPPLIERS
(COLLECTIVELY, "SUPPLIERS") EXPRESSLY DISCLAIM ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICE,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY (I) REGARDING THE RESULTS OF
THE SERVICE INCLUDING WITHOUT LIMITATION THE TARGET SITE’S RANKING OR POSITION
FOR ANY PARTICULAR KEYWORD OR THE TYPE OF SITES OR CONTENT THAT SEARCH ENGINES
ACCEPT NOW OR IN THE FUTURE, OR THE TIME TAKEN TO ACCEPT SITE SUBMISSIONS; (II)
THAT THE TARGET SITE WILL NOT BE DELETED OR EXCLUDED FROM ANY DIRECTORY OR
SEARCH ENGINE DUE TO THE SERVICE; OR (iii) THAT THE SERVICE WILL MEET YOUR
REQUIREMENTS, OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR, BUG OR VIRUS
FREE; NOR DO WE WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE
RESULTS THERETO IN TERMS OF THEIR CORRECTNESS, COMPLETENESS, AVAILABILITY,
ACCURACY, RELIABILITY OR OTHERWISE.
10.
LIMITATION OF LIABILITY.
Under no circumstances shall we be liable for any direct, indirect, incidental,
special, exemplary or consequential damages arising out of (i) the provision of
and your reliance on the Service, (ii) the use, access or the inability to use
or access the Service, (iii) the procurement of substitute goods and services,
(iii) resulting from any inaccuracies or errors of information received as a
result of using the Service, (iv) any bugs, viruses, trojan horses, or the like
which may be transmitted to the Target Site as a result of the Service, (v) the
failure or malfunction of the Service; in each case, including but not limited
to, damages for loss of profits, reputation, goodwill, use, data or other
intangible, even if we have been advised of the possibility of such damages. In
the event this limitation of liability shall be for any reason held
unenforceable or inapplicable, you agree that our aggregate liability shall not
exceed the amount of US$1.00.
11. TERM AND TERMINATION.
The term of the Agreement shall be for the period for which we have accepted
payment from you for the Service pursuant to the Rules, unless earlier
terminated by us (i) upon written notice to you due to a breach of the Agreement
by you; or (ii) upon seven (7) days written notice to you, for any or no reason,
in which case we shall refund a proportion of the amount paid by you for the
Service which relates to the remaining term of the Agreement.
Upon the termination or expiration of this
Agreement: (i)
we will immediately delete your user account and terminate access to the Service
(including any historical Reports); (ii) you will delete all copies of the
Software from all pages of the Target Website and provide written confirmation
to us that this has been completed within three (3) business days of such
termination or expiration; and (iii) unless you are entitled to a refund in
accordance with the terms of this Agreement, you will not be entitled to any
refunds of any amounts whatsoever paid to us if any.
12. Amendments; service MODIFICATIONS. This Agreement
shall not be modified or amended except in writing signed by the parties hereto
and specifically referring to this Agreement. This Agreement shall take
precedence over any other documents which may conflict with this Agreement.
We may in our sole discretion and upon seven (7)
days written notice to you, revise any part of the Service and establish or
change limits concerning the Service, temporarily or permanently, including but
not limited to the number of times and the maximum duration for which the
Service may be accessed in a given period of time. You may reject any such
revisions only by (i) terminating this Agreement, (ii) removing the Software,
and (iii) discontinuing use of the Service. If you reject such revisions in
accordance with the foregoing, we shall refund a proportion of the amount paid
by you for the Service which relates to the remaining term of the Agreement.
Your continued use of the Service will constitute your acceptance of and
agreement to such revisions.
13. GOVERNING LAW.
This Agreement will be governed by Israeli law without regard to its choice of
law or conflicts of law principles. The parties hereby consent to the exclusive
jurisdiction and venue in the courts in Tel Aviv, Israel, except that temporary relief to enjoin infringement of
intellectual property rights may be sough in any court.
13. STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any claim or
cause of action arising out of or related to use of the Service or the Agreement
must be filed within one (1) year after such claim or cause of action arose or
be forever barred.
14.
MISCELLANEOUS.
This Agreement and the Rules comprise the entire agreement between you and us,
states our and our suppliers' entire liability and your exclusive remedy with
respect to the Service, and supersede all prior agreements pertaining to this
Agreement’s and such Rules’ subject matter. If any provision(s) of this
Agreement is held to be contrary to law, then such provision(s) shall be
construed, as nearly as possible, to reflect the original provision and the
other provisions remain in full force and effect. Any failure to exercise or
enforce any right or provision of this Agreement shall not constitute a waiver
of such right or provision. The section titles in this Agreement are solely used
for the convenience and have no legal or contractual significance. This
Agreement may be assigned by us without restriction. You may not assign or
otherwise transfer any of your rights hereunder without our prior written
consent, and any such attempt is void. The relationship between ExactFactor and
you is not one of a legal partnership relationship, but is one of independent
contractors.
Copyright © 2009, Exactfactor Ltd. All rights reserved.
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