YEMBO TERMS OF SERVICE
THESE TERMS OF SERVICE (THE "TERMS") ARE A LEGAL AGREEMENT BETWEEN YOU ("CLIENT") AND YEMBO, INC. ("YEMBO"). BY EXECUTING A YEMBO ORDER FORM THAT INCLUDES THIS AGREEMENT BY REFERENCE OR BY USING THE YEMBO PLATFORM, CLIENT ACKNOWLEDGES THAT CLIENT HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, "CLIENT" REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND "CLIENT" REFERS TO THAT ENTITY. IF CLIENT DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE YEMBO PLATFORM. YEMBO MAY MAKE CHANGES TO THE YEMBO PLATFORM AT ANY TIME.
1. Definitions.1.1 "Authorized Purposes" means for storing and accessing images, data, and video, solely for purposes of generating moving estimates for Client's customers or for the planning, assisting and support of Client's customers.
1.2 "Authorized Users" means Client's employees, consultants, contractors, and/or customers: (a) who are authorized by Client to access and use the Yembo Platform, and (b) who have been supplied user identifications and passwords for such purpose by Client (or by Yembo at Client's request).
1.3 "Client Data" means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Client or its Authorized Users, and received and analyzed by the Yembo Platform.
1.4 "Client System" means Client's internal computers, servers and other equipment and software used to access and use the Yembo Platform.
1.5 "Documentation" means the printed or electronic user instructions and help files made available by Yembo for use with the Yembo Platform, as may be updated from time to time by Yembo.
1.6 "Intellectual Property Rights" means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.7 "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.8 "Open Source Software" means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
1.9 "Optional Services" shall have the meaning set forth in an applicable Order Form.
1.10 "Order Form" means the Yembo ordering document(s) executed by the parties from time to time, under which Client subscribes to use the Yembo Platform and receive other Services, including any mutually acceptable modifications, supplements and addenda thereto. Order Forms are incorporated herein.
1.11 "Professional Services" means implementation, training or consulting services that Yembo may perform as described in an Order Form executed by the parties.
1.12 "Service Plan" has the meaning set forth in an applicable Order Form.
1.13 "Services" means the Yembo Platform, Optional Services and Professional Services.
1.14 "Subscription Term" means the period, set forth in applicable Order Form(s), for which Client is permitted to access and use the Yembo Platform.
1.15 "Survey Plan" has the meaning set forth in an applicable Order Form.
1.16 "Yembo Platform" means Yembo's hosted software platform known as Yembo, provided that such definition excludes any Open Source Software that may be used to provide such platform.
2. ORDER FORMS; LICENSES; RESTRICTIONS.2.1 Order Forms. Subject to the terms of this Agreement, Client may order Services by entering into a Yembo Order Form. Client agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Yembo regarding any future functionality or features
2.2 Access and Use License. Subject to Client's compliance with the terms and conditions contained in these Terms, Yembo, during the relevant Subscription Term, hereby grants Client and, if applicable, those Authorized Users for whom Client has purchased access in an applicable Order Form, a limited, non-exclusive, non-transferable right to access and use the Yembo Platform in accordance with the Documentation in each case solely in accordance with Client's Service Plan and Survey Plan and for Client's Authorized Purposes and not for the benefit of any other person or entity. Client's use of the Yembo Platform may be subject to certain limitations – for example, limits on storage capacity or numbers of Authorized Users.
2.3 Restrictions. Client shall not, directly or indirectly, and Client shall not permit any Authorized User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Yembo Platform; (b) modify, translate, or create derivative works based on any element of the Yembo Platform or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Yembo Platform; (d) use the Yembo Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Client and Authorized Users; (e) remove any proprietary notices from the Documentation; (f) use the Yembo Platform for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Yembo Platform; (h) introduce any Open Source Software into the Yembo Platform; or (i) attempt to gain unauthorized access to the Yembo Platform, its related systems or networks, or to the content and data uploaded by other users.
2.4 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Client or any Authorized User, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Yembo.
3. THIRD PARTY HOSTING.Yembo may use the services of one or more third parties to deliver all or part of the Yembo Platform. Yembo will pass through any warranties to the extent that Yembo receives any from its then current third-party service provider that it can provide to Client. Client agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Client from time to time.
4.ACCOUNTS AND PASSWORDS.4.1 Accounts. Client and all Authorized Users will be required to create an account with Yembo before being permitted to access and use the Yembo Platform. To create an account, the user must complete the registration process by providing Yembo with current, complete and accurate information. All the information provided when registering for an account must be accurate, complete and up to date. Users may change, correct, or remove their account information by logging into the account directly and making the desired changes. Yembo reserves the right to terminate any account for which the provided information is untrue, inaccurate, incomplete or not current.
4.2 Passwords. Client and its Authorized Users shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the person to which it was issued. Client is solely responsible for any and all access and use of the Yembo Platform that occurs using any Authorized User's account. Client shall restrict its Authorized Users from sharing passwords. Client agrees to immediately notify Yembo of any unauthorized use of any account or login and password issued to Client and/or its Authorized Users. Yembo shall have no liability for any loss or damage arising from Client's or its Authorized Users failure to comply with the terms set forth in this Section.
4.3 No Circumvention of Security. Neither Client nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the Yembo Platform. Client will immediately notify Yembo of any breach, or attempted breach, of security known to Client.
5. CLIENT OBLIGATION.5.1 Client System. Client is responsible for (a) obtaining, deploying and maintaining the Client System; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Yembo Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or a separate agreement between Client and Yembo referencing these Terms, Yembo shall not be responsible for supplying any hardware, software or other equipment to Client under these Terms.
5.2 Acceptable Use. Client shall be solely responsible for its actions and the actions of its Authorized Users while using the Yembo Platform. Client shall, and shall ensure that its Authorized Users: (a) abide by all local, state, national, and international laws and regulations applicable to Client's and its Authorized Users' use of the Yembo Platform, including without limitation the provision and storage of Client Data; (b) not send or store data on or to the Yembo Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not upload in any way any information or content that contains Malicious Code or data that may damage the operation of the Yembo Platform or another's computer or mobile device; (d) not upload in any way any data regarding an individual's sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either "Protected Health Information" subject to and defined by the Health Insurance Portability and Accountability Act, or an individual's first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number;; (e) not use the Yembo Platform for illegal, fraudulent, unethical or inappropriate purposes; (f) not interfere or disrupt networks connected to the Yembo Platform or interfere with others' ability to access or use the Yembo Platform; (g) not distribute, promote or transmit through the Yembo Platform any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) comply with all regulations, policies and procedures of Yembo's service providers; and (i) use the Yembo Platform only in accordance with the Documentation. Client acknowledges and agrees that Yembo neither endorses any Client communications or Client Data, nor does Yembo assume any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Yembo may, but is not required to, remove any violating content posted or stored using the Yembo Platform or transmitted through the Yembo Platform, without notice to Client. Notwithstanding the foregoing, Yembo does not guarantee and is not obligated to verify, authenticate, monitor or edit the Client Data or any other information or data input into or stored in the Yembo Platform for completeness, integrity, legality, quality, accuracy or otherwise. Client shall be responsible and liable for the completeness, integrity, legality, quality and accuracy of Client Data and other information input into the Yembo Platform. Client shall be solely responsible for ensuring its and its Authorized Users' compliance with applicable laws and regulations in its and their use of the Yembo Platform. Client takes sole responsibility for maintaining tariff compliance with the appropriate governing bodies.
5.3 Accuracy of Client's Contact Information; Email Notices. Client agrees to provide accurate, current and complete information as necessary for Yembo to communicate with Client from time to time regarding the Services, issue invoices or accept payment, or contact Client for other account-related purposes. Client agrees to keep any online account information current and inform Yembo of any changes in Client's legal business name, address, email address and phone number. Client agrees to accept emails from Yembo at the e-mail addresses specified by it for login purposes. In addition, Client agrees that Yembo may rely and act on all information and instructions provided to Yembo by Authorized Users from the above-specified e-mail addresses.
5.4 Customer Communications. Certain functionality offered by the Yembo Platform may permit Client to communicate with third parties via video and audio communications/calls, text message or email. By utilizing such functionality, Client represents and warrants: (a) Client has obtained all notices and consents required from such third parties to permit such contact, and (b) that it shall comply with all applicable state or federal laws or regulations, including but not limited to the Telephone Consumer Protection Act ("TCPA"), the National and State Do Not Call Registries, GDPR, the ePrivacy Directive, CCPA, BIPA, the CAN-SPAM Act/CASL, telemarketing regulations, and state and federal laws governing autodialing, messaging, advertising, emailing, placing, or recording phone calls. Client further acknowledges that Yembo does not support the making of emergency calls (e.g., 911 in the United States). Client agrees that Yembo shall have no liability for third party complaints arising from Client's failure to comply with applicable law, provide or obtain any required notices and consents pursuant to this Section, and Client will indemnify, defend and hold Yembo harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys' fees and expenses) arising from any violation of state or federal laws or regulations, or any third party's rights that result from such failure.
5.5 Temporary Suspension. Yembo may temporarily suspend Client's and/or its Authorized Users' access to the Yembo Platform in the event that either Client or any of its Authorized Users is engaged in, or Yembo in good faith suspects Client or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Yembo will attempt to contact Client prior to or contemporaneously with such suspension; provided, however, that Yembo's exercise of the suspension rights herein shall not be conditioned upon Client's receipt of any notification. Client agrees that Yembo shall not be liable to Client, Authorized Users, or any third party if Yembo exercises its suspension rights as permitted by this Section. Upon determining that Client has ceased the unauthorized conduct leading to the temporary suspension to Yembo's reasonable satisfaction, Yembo shall reinstate Client's and its Authorized Users' access to and use of the Yembo Platform. Notwithstanding anything in this Section to the contrary, Yembo's suspension of access to the Yembo Platform is in addition to any other remedies that Yembo may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Yembo may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach of these Terms.
6. AVAILABILITY; SECURITY.6.1 Availability. Subject to the terms and conditions of these Terms, Yembo will use commercially reasonable efforts to make the Yembo Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime, or (b) unavailability caused by circumstances beyond Yembo's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays. Certain enhancements to the Yembo Platform made generally available at no cost to all users during the applicable Term will be made available to Client at no additional charge. However, the availability of some new enhancements to the Yembo Platform may require the payment of additional fees, and Yembo will determine in its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Yembo Platform includes, any enhancements, updates, upgrades and new modules to the Yembo Platform provided in connection therewith and subsequently provided by Yembo to Client hereunder.
7. PROFESSIONAL SERVICES.Yembo shall use commercially reasonable efforts to perform the Professional Services as set forth in applicable mutually executed Order Forms. Each such Order Form will include, at a minimum: (a) a description of the scope of Professional Services, (b) any work product or other deliverables to be provided to Client (each a "Deliverable"), (c) the schedule for the provision of Professional Services, and (d) the applicable fees and payment terms for such Professional Services. All Professional Services Order Forms shall be deemed part of and subject to these Terms. If there is any inconsistency between an Order Form and these Terms, the Order Form shall control. If either Client or Yembo requests a change to the scope of Professional Services described in an Order Form, the party seeking the change shall propose such change by written notice. Promptly following the other party's receipt of the written notice, the parties shall discuss and agree upon the proposed changes. Yembo will prepare a change order document describing the agreed changes to the Order Form and any applicable change in fees and expenses (a "Change Order"). Change Orders are not binding unless and until executed by both parties. Executed Change Orders shall be deemed part of, and subject to, these Terms. Yembo and Client shall cooperate to enable Yembo to perform the Professional Services according to the dates of performance and delivery terms set forth in each applicable Order Form. In addition, Client shall perform any Client obligations specified in each Order Form. In the event the Professional Services are not performed in accordance with the terms of the applicable Order Form, Client shall notify Yembo in writing no later than thirty (30) calendar days after performance of the affected Professional Services by Yembo, Client's notice shall specify the basis for non-compliance with the Order Form and if Yembo agrees with the basis for non-compliance, then at Yembo's sole option, Yembo shall re-perform the Professional Services at no additional charge to Client or refund to Client the applicable fees for the affected Deliverable or Professional Service. THE FOREGOING CONSTITUTES CLIENT'S SOLE AND EXCLUSIVE REMEDY AND YEMBO'S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE PROFESSIONAL SERVICES.
8. FEES AND PAYMENT.8.1 Fees. Client agrees to pay all fees applicable to Client's and its Authorized Users' use of the Services using one of the payment methods Yembo supports. Except as otherwise specified in these Terms, (a) fees are based on Services purchased, regardless of actual usage, and (b) payment obligations are non-cancelable and fees paid are non-refundable. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
8.2 Payment. If Client elects to pay by credit card, Yembo or Yembo's third-party payment processor will charge Client's credit card on the date that Client subscribes to use the Platform. By providing a payment method, Client expressly authorizes Yembo and/or Yembo's third-party payment processor to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto. Client agrees that Yembo may invoice Client for any unpaid fees, including without limitation any amounts owed by Client that cannot be processed. Client is responsible for providing complete and accurate billing and contact information to Yembo and notifying Yembo of any changes to such information. Client agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Client is responsible for providing complete and accurate billing and contact information to Yembo and notifying Yembo of any changes to such information.
8.3 Overdue Charges. If Yembo does not receive fees by the due date, then at Yembo's discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Yembo may condition future purchases of Services on payment terms shorter than those specified in Section 8.2 (Payment).
8.4 Suspension of Service. If any amounts owed by Client for the Services are more than thirty (30) days overdue, Yembo may, without limiting Yembo's other rights and remedies, suspend Client's and its Authorized Users' access to the Yembo Platform until such amounts are paid in full; provided that Yembo agrees that it will not exercise its rights under this Section if the applicable charges are under reasonable and good-faith dispute and Client is cooperating diligently to resolve the dispute.
8.5 Taxes. The fees applicable to Client's and its Authorized Users' use of the Yembo Platform are exclusive of all sales, use, value-added and other taxes or duties and Client shall pay all such taxes (excluding taxes based on Yembo's net income).
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.9.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
9.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE SERVICES ARE PROVIDED ON AN AS-IS BASIS. CLIENT'S USE OF THE SERVICES IS AT ITS OWN RISK. YEMBO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY YEMBO IN SECTION 9 ARE FOR THE BENEFIT OF CLIENT ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE YEMBO PLATFORM IS LICENSED AND NOT SOLD.
NO AGENT OF YEMBO IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF YEMBO AS SET FORTH HEREIN. YEMBO DOES NOT WARRANT THAT: (A) THE USE OF THE YEMBO PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CLIENT'S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CLIENT THROUGH THE YEMBO PLATFORM WILL MEET CLIENT'S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE YEMBO PLATFORM WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE YEMBO PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. YEMBO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
10. INDEMNIFICATION.10.1 Client shall defend Yembo and its affiliates, licensors and their respective officers, directors and employees ("Yembo Indemnified Parties") from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Client System or Client Data (and the exercise by Yembo of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party's Intellectual Property Rights or privacy rights; (b) Client's use or alleged use of the Yembo Platform other than as permitted under these Terms; or (c) Client's or any Authorized User's violation of, or non-compliance with, any applicable laws or regulations as described in Section 5.4. Client shall pay all damages, costs and expenses, including attorneys' fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Yembo may, at its own expense, engage separate counsel to advise Yembo regarding a Third-Party Claim and to participate in the defense of the claim.
11. CONFIDENTIALITY.11.1 Confidential Information. Each party (the "Receiving Party") hereby understands and acknowledges that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). Confidential Information of Yembo shall include any and all non-public information regarding features, functionality and performance of the Yembo Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency's order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
11.3 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
12. PROPRIETARY RIGHTS.12.1 Yembo Platform. As between Yembo and Client, all right, title and interest in the Yembo Platform and any other Yembo materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Client regarding the Yembo Platform, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Yembo or Yembo's licensors and providers, as applicable. Client hereby does and will irrevocably assign to Yembo all evaluations, ideas, feedback and suggestions made by Client to Yembo regarding the Yembo Platform (collectively, "Feedback") and all Intellectual Property Rights in the Feedback. Where the foregoing assignment is prohibited by law, Client hereby grants Yembo an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as Yembo may determine in its sole discretion. Client understands and agrees, however, that Yembo is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and Client has no right to compel such use, display, reproduction, or distribution.
12.2 Client Data. As between Yembo and Client, all right, title and interest in the Client Data, belongs to and is retained solely by Client and its applicable Authorized Users. By posting, displaying, sharing or distributing Client Data on or through the Yembo Platform or by requesting Authorized Users to do so, Client hereby grants to Yembo a limited, sublicenseable non-exclusive, royalty-free, worldwide license to reproduce, display, publicly perform, distribute and otherwise use the Client Data, and perform all acts with respect to the Client Data as may be necessary for Yembo to provide the Services to Client, which may include display or distribution of such Client Data to users or subsets of users of the Yembo Platform. Yembo may modify, copy, translate or make any derivative works of Client Data in connection with its provision of the Yembo Platform as required to format such Client Data for presentation within the Yembo Platform, to analyze such Client Data for purposes of providing the Services, to continually improve the Yembo Platform and to develop new services and offerings. Client represents, warrants and covenants that it has acquired all necessary rights in its Authorized Users' Client Data to enable it to grant the foregoing rights.
12.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Yembo may monitor Client's use of the Services and use Client Data and other data and information related to such use, in an aggregate and anonymous manner, including to compile statistical and performance information related to Yembo Platform and its users ("Aggregated Statistics"). As between Yembo and Client, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Yembo. Client acknowledges that Yembo will be compiling Aggregated Statistics based on Client Data and information input by other customers into the Yembo Platform and Client agrees that Yembo may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Client or its Confidential Information.
12.4 Yembo Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Yembo, whether solely or jointly, including without limitation, in connection with Yembo's performance of the Professional Services hereunder, including (unless otherwise expressly set forth in an applicable Order Form) all Deliverables ("Yembo Developments") and all Intellectual Property Rights therein, shall be the sole and exclusive property of Yembo. Client agrees that, except for Client Confidential Information, to the extent that the ownership of any contribution by Client or its employees, consultants, contractors or agents to the creation of the Yembo Developments is not, by operation of law or otherwise, vested in Yembo, Client hereby assigns and agrees to assign to Yembo all right, title and interest in and to such Yembo Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
12.5 License to Deliverables. Subject to Client's compliance with these Terms, Yembo hereby grants Client a limited, non-exclusive, non-transferable license during the Subscription Term to use the Deliverables solely in connection with Client's authorized use of the Services. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise ("Tools") used by Yembo to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Client, on the same terms as the Deliverables; and (ii) the term "Deliverables" shall not include the Tools.
13. LIMITATIONS OF LIABILTY.13.1 No Consequential Damages. NEITHER YEMBO NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF YEMBO OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICES OR THE RESULTS THEREOF. YEMBO WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
13.2 Limits on Liability. NEITHER YEMBO NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY CLIENT TO YEMBO DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
13.3 Essential Purpose. CLIENT ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 13 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
14. TERM AND TERMINATION.14.1 Term. The term of these Terms commences on the Effective Date and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms or in an applicable separate agreement between Client and Yembo referencing these Terms. Except as otherwise specified in the applicable Order Form, the Subscription Term for each Order Form shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least sixty (60) days prior to the expiration of the expiring Subscription Term. The pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Yembo has given Client written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal. If Client is using the Yembo Platform as part of a free trial, the Subscription Term shall be thirty (30) calendar days and shall not automatically renew.
14.2 Termination for Cause. A party may terminate these Terms upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within ten (10) days after receipt of notice from the other party or such other period as the parties may agree. In no event shall any termination relieve Client of the obligation to pay any fees payable to Yembo for the period prior to the effective date of termination.
14.3 Effects of Termination. Upon expiration or termination of these Terms, (a) Client's use of and access to the Services and Yembo's performance of the Services shall cease; and (b) all fees and other amounts owed to Yembo shall be immediately due and payable by Client. Yembo shall have no obligation to maintain or provide any Client Data and may thereafter, unless legally prohibited, delete or retain all Client Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (y) return to the Disclosing Party, or at the Disclosing Party's option, the Receiving Party shall destroy, all items of Confidential Information (other than the Client Data) then in the Receiving Party's possession or control, including any copies, extracts or portions thereof, and (z) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
14.4 Survival. This Section and Sections 1, 2.3, 2.4, 5.2, 10, 11, 12, 13, 14.4, 15 and 16 shall survive any termination or expiration of these Terms.
15. DISPUTES BETWEEN USERS; INTELLECTUAL PROPERTY INFRINGEMENT.15.1 No Agency or Partnership. No agency, partnership, joint venture, or employment is created as a result of these Terms or Client's or its Authorized Users' use of any part of the Yembo Platform. Client does not have any authority whatsoever to bind Yembo in any respect. The parties agree that Yembo is a technology company whose primary business is providing a platform upon which users can communicate with Client, upload and analyze data, images and video for purposes of preparing moving estimates . Neither Yembo nor any users of the Yembo Platform may direct or control the day-to-day activities of the other or create or assume any obligation on behalf of the other.
15.2 Disputes Between Clients.
(a) Images, information and data posted on the Yembo Platform are the property of the users who upload them. To the extent Client is permitted to access other users' images, information and/or data, such images, information and/or data are licensed to Client by their owner and not by Yembo. Client's interactions with individuals and/or organizations interacted with on or through the Yembo Platform, including Client's decision to provide services to such users or to use images, information and/or data provided by such individuals and/or organizations is Client's decision for which Client alone is responsible. Client understands and agrees that Yembo does not and cannot make representations as to the suitability of (i) any images, information and/or data Client may access via the Yembo Platform; (ii) any individual Client may decide to interact with on or through the Yembo Platform and/or (iii) the accuracy or suitability of any advice, information, or recommendations made by any user.
(b) IF THERE IS A DISPUTE BETWEEN USERS OF THE SERVICES, OR BETWEEN ANY USER OF THE SERVICES AND ANY THIRD PARTY, CLIENT ACKNOWLEDGES AND AGREES THAT YEMBO IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN CLIENT AND ANY THIRD PARTY, CLIENT HEREBY RELEASES YEMBO, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES. IF CLIENT IS A CALIFORNIA RESIDENT, CLIENT WAIVES CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
15.3 Intellectual Property Infringement.
Yembo respects the intellectual property rights of others and encourages its users to do the same. Accordingly, Yembo has a policy of removing Client Data that violate intellectual property rights of others, suspending access to the Yembo Platform (or any portion thereof) to any user who uses the Yembo Platform in violation of someone's intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Yembo Platform in violation of someone's intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512 (the "Digital Millennium Copyright Act" or "DMCA"), Yembo has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of the Yembo Platform, please provide written notice to Yembo's agent for notice of claims of infringement: email@example.com
To be sure the matter is handled immediately, your written notice must:
- Contain your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise manner to allow Yembo to locate that material;
- Contain adequate information by which Yembo can contact you (including postal address, telephone number, and e-mail address);
- Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;
- Contain a statement that the information in the written notice is accurate; and
- Contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
16. MISCELLANEOUS.16.1 Notices. All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at: (a) Yembo, Inc., 4445 Eastgate Mall, Suite 200, San Diego, CA 92121 , for notices sent to Yembo and, (b) for notices sent to Client, at the address currently maintained in Yembo's records by (i) personal delivery, (ii) sending such notices by commercial overnight courier with written verification of actual receipt, (iii) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee's time) it is deemed to be received at 9:00 am on the following business day, or (iv) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
16.2 Governing Law and Venue. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. The parties further agree that the exclusive venue and jurisdiction any dispute arising or relating to this Agreement shall be a court of competent jurisdiction located in San Diego County, California.
16.3 Publicity. Yembo has the right to reference and use Client's name and trademarks and disclose the nature of the Services provided hereunder in each case in Yembo business development and marketing efforts, including without limitation on Yembo's web site.
16.4 Export. Yembo controls and operates the Yembo Platform and provides the other Services from our headquarters in the United States of America and the entirety of the Yembo Platform and Services may not be appropriate or available for use in other locations. If you use the Services (or any portion thereof) outside the United States of America, you are solely responsible for following applicable local laws. The Yembo Platform utilizes software and technology that may be subject to United States and foreign export controls. Client acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Yembo Platform, Client represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Yembo Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Client agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Yembo and its licensors make no representation that the Yembo Platform is appropriate or available for use in other locations. Any diversion of the Client Data contrary to law is prohibited. None of the Client Data, nor any information acquired through the use of the Yembo Platform, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
16.5 General. Client shall not assign its rights hereunder or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Yembo. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. There are no third-party beneficiaries to these Terms. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors, and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for Client's payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.