Recently updated: October 1, 2022
These Terms and Conditions ( “Terms”) together with an Order Form (as defined below) signed by a Client, the DPA (as defined below) and any other exhibit thereof, constitute the entire agreement between the Client and Namogoo Technologies Inc. and/or any of its affiliates (“Namogoo“), governing the Services referenced hereinafter (collectively the “Agreement”), supersede any and all prior understandings and agreements between Namogoo and the Client with respect to the subject matter hereof and form an integral part of the Agreement. Each of Namogoo and the Client, a “Party” and together, “Parties”. All terms not defined herein shall have the meaning ascribed to them in the Order Form (as such term is defined below) or the DPA.
1. Service.
a) The Service. Namogoo offers its Client’s various cloud based services and features, for the purpose of optimizing Client’s Website’s journey including (each, the “Service” or “Selected Service”): (i) a Customer Hijacking Prevention (“CHP”) service, that identifies and blocks unauthorized ads or web sessions, that divert Visitors (as defined below) from the Client’s Website; (ii) an Intent Based Promotion (“IBP”), that offers individualized incentives to Visitors in order to increase the business metrics and revenues; (iii) Shopping Extension Management (“SEM”) which evaluates the traffic generated from shopping extensions and enables the Client to optimize the traffic and conversion; and (IV) Remarkety (“Remarkety”) a marketing automation platform for e-commerce. The Services and features are all detailed in the Order Form, online registration form or on the online store in which the Client has installed one of the Namogoo features or add-ons (each, an “Order Form”). For the purpose of this Agreement, the (i) “Client Website” shall mean either the domain inserted in the Order Form or the website in which the Client has installed one or more of the Namogoo features and add-on widget; and (ii) the “Visitor” shall mean the end user accessing, browsing and using the Client Website.
b) Integration of the Service. Namogoo may, depending on the Selected Service, make available to the Client a proprietary JavaScript code or mobile SDK (“Script”) as appliable, which the Client will download and install on the Client’s Website, all in accordance with the documentation and written instructions of Namogoo (“Documentation”).
c) Utilizing the Service; Monitoring the Service Performance. Namogoo will provide the Client with access to a dashboard for utilizing the Selected Services and/or which presents data and metrics related to the performance of the Selected Service within the Client’s Website (the “Dashboard”). In order to create the Dashboard, the Client is required to register, or Namogoo will register on the Client’s behalf, and provide certain details (such as contact information of the authorized users, a password and username). The Client represents and warrants that such information to be provided by the Client shall be accurate and complete, and the Client is solely and fully responsible for maintaining the confidentiality of the password and username of and for all activities that occur under the Dashboard. Unauthorized access or use of the Dashboard or Selected Services must be immediately reported to Namogoo. The information provided will be governed by the Namogoo Privacy Policy (as amended from time to time): https://www.namogoo.com/privacy-policy/.
d) If the Selected Service is Remarkety, the Client may use the Remarkety Service to send contents through personal channels such as emails and text messages to Visitors for the Client’s own business purposes (together, “Messages”). The Client may not use the Remarkety Service to provide any similar services to third parties, for example, as a service bureau. The Client may not use the Remarkety Service to send Messages under any name other than the Client’s own name, or with fraudulent or misleading header information, unless specifically authorized by Namogoo.
2. License and Ownership.
a) License. Subject to the terms and conditions of this Agreement, Namogoo hereby grants to the Client solely during the Term (as such term is defined below), a non-exclusive, non-transferable, non-sublicensable, limited license to use the Selected Service.
b) License Restrictions. Client shall not, under any circumstances: (i) decompile, disassemble, reverse engineer, decrypt or otherwise attempt to derive any intellectual property of Namogoo, including but not limited to, the Script, the source code or communication protocols of the Service; (ii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer or purport to transfer access or rights to the Script or Service; (iii) alter, modify, change, revise, adapt, copy, reproduce or create derivative works of the Service or any part thereof; (iv) use the Selected Service in violation of applicable laws; (v) install the Script in any other digital property except the Client Website (where applicable); (vi) attempt to do, enable or allow others to do, any of the above.
If the Selected Service is Remarkety, then the following provisions shall apply in addition to the above: as part of the Remarkety Service, Namogoo allows you to compose Messages or to customize templates of Messages that Namogoo may provide. Namogoo cannot and does not monitor the content of all Messages. All content provided by the Client for inclusion a Message shall be of the Client’s original authorship and shall not (a) contain any defamatory, libellous, or otherwise offensive content, (b) contain or link to any obscene, pornographic, adult-only or sexual content, (c) contain or link to any illegal, immoral, deceptive or fraudulent material, or material that encourages illegal or immoral conduct, (d) contain or link to any racist or hate speech, or which material promotes or endorses any violent acts, (e) contain any material (including any logos, names and trademarks) that infringes the intellectual property, moral, privacy or publicity rights of third parties, or contain any worms, viruses, spyware, adware or other malicious or intrusive software. Namogoo may refuse to send any content provided by the Client which, in the sole discretion of Namogoo, violates these Terms or otherwise may damage the business interests of Namogoo. Notwithstanding the foregoing, Namogoo shall have no obligation to monitor any content for compliance with these Terms.
c) Except as explicitly provided herein, nothing in this Agreement shall be deemed to grant or transfer any right, title or interest in any intellectual property of a Party to the other Party. The Client acknowledges that Namogoo is the exclusive owner of the Selected Service and all intellectual property rights of any kind relating thereto, including without limitation, any derivatives, improvements, enhancements or extensions thereof, conceived, reduced to practice or otherwise developed in connection thereto, all of which are and shall remain the exclusive unencumbered property of Namogoo.
3. Data, Privacy & Cookie Notice.
a) As part of the Services, and depending on the Selected Services, Namogoo shall provide the Client, with insights and aggregated information regarding the Visitors behavior in and interaction with the Client Website (“Insights”). The Insights shall be solely owned by Client. Without derogating from the aforementioned, it is hereby clarified that Namogoo processes aggregated analytic, non-identifying data during the use of the Services, solely for the purpose of providing the Client with the aforesaid Insights (“Data”), the Client undertakes and acknowledges that Namogoo may use the Data internally for improving the Services and for research and development purposes.
b) For the purpose of providing the Service, Namogoo might process personal data on the Clients behalf pursuant to the terms and conditions of the Data Processing Agreement available, when the Selected Service is CHP, IBP or SEM at https://www.namogoo.com/dpa, and when Selected Service is Remarkety at https://www.namogoo.com/dpa (each, “DPA”). The provision of the DPA shall come into effect and apply in case that any personal data is processed.
c) The Client acknowledges that, depending on the Selected Services, Namogoo might be required to place cookies, or similar technologies, on the Client Website for the purpose of providing the Service. The Client represents that it is aware that Namogoo does not have any direct interaction with the Visitors and the Client is responsible, depending on the Selected Services used, to disclose to its Visitors, clearly and explicitly (or otherwise as required under applicable Data Protection Laws), regarding the use of cookies
4. Payment and Consideration.
a) Payment terms shall be set forth in the Order Form. Notwithstanding the above, all amounts due by Client in connection with this Agreement shall be paid within 30 days of invoice issued by Namogoo and are non-refundable, or as otherwise provided under the Order Form.
b) Payments might be made by a credit card. In such case, the Client is required to provide Namogoo with valid credit card information and authorize us to deduct the monthly fees against that credit card. The Client is required to replace the information for any credit card that expires with information for a different valid credit card. Anyone using a credit card represents and warrants that he or she is authorized to use that credit card, and that any and all charges may be billed to that credit card and will not be rejected. If, for some reason, Namogoo is unable to process your credit card order, Namogoo will try to contact you by email and may suspend your account until your payment can be processed.
c) Certain Selected Services may be available for purchase and install on various online platforms and stores (i.e., Shopify) (“Online Store”). The payment terms, rates and refunds shall be governed by the Online Store’s terms of use and privacy policy. Currently, our IBP services are available on Shopify Inc., for further information please see Shopify’s Terms of Service available at: https://www.shopify.com/legal/terms and/or Privacy Statement available at: https://www.shopify.com/legal/privacy.
d) Taxes. Client shall be solely responsible for and shall pay all federal, state, local, sales or use taxes, penalties mandatory payments and late charges (collectively “Tax”) imposed under any applicable law on Client in connection with the Service under this Agreement. To the extent Namogoo is required to collect and remit any Tax imposed on Client, Namogoo shall invoice the Client, and Client shall pay such amount of Tax in addition to any applicable fees. Upon first demand by Namogoo, Client shall reimburse Namogoo for any amount of Tax imposed on Client that was paid by Namogoo. For tax purposes, Namogoo will relate solely to the user of the Service per Client Address as set forth on the applicable Order Form or online registration form, as applicable.
5. Term & Termination.
a) This Agreement is effective as of the date set forth in an Order Form and until the later of (i) the end of the subscription term (or any equivalent term) as shall be set forth in an Order Form, or; (ii) the date in which the Client has uninstalled the Script (where applicable) (both together or separately the “Term”). Unless the Client notifies Company in writing at least fifteen (15) days prior to the end of a Term, each subscription term (or any equivalent term defined under an Order Form) shall be renewed automatically according to the same terms and for the same period as outlined in the Order Form or pricing page. For avoidance of doubt, it is clarified that notwithstanding anything to the contrary under this Agreement, and where applicable, any TERMINATION OF THIS AGREEMENT BY CLIENT SHALL BE CONTINGENT UPON THE REMOVAL OF THE SCRIPT FROM ANY AND ALL CLIENT’S WEBSITE PAGES. For so long as the Script is embedded into any part of the Client Website, Namogoo will be entitled to the full applicable Fees for any services rendered until such time as the termination of this Agreement comes into effect.
b) In the event of a material breach of this Agreement, by either Party, which was notified in writing to the other Party and was not cured within 30 days, the other Party may terminate this Agreement with immediate effect upon a written notice to the other Party regarding such termination.
c) This Agreement may be terminated by Namogoo with immediate effect upon the dissolution, termination of existence, insolvency, business failure, assignment of trust, mortgage for the benefits of creditors, or the commencement of any proceeding under any bankruptcy, receivership, or insolvency laws, by or against the Client.
d) in the event that the Selected Service is Remarkety, then Namogoo shall be entitled, without liability to Client, to immediately suspend, terminate or limit Client’s access to the Remarkety Service at any time in the event that Namogoo determines, in its reasonable discretion, that (i) the Remarkety Service is being used by Client, or its Authorized Users, in violation of any applicable laws or regulations or these Terms; (ii) the Remarkety Service is being used by Client in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the Remarkety Service by Client adversely affects Namogoo’s equipment or service to others; (iv) Namogoo is prohibited by an order of a court or other governmental agency from providing the Remarkety Service; or (v) there is a denial of service attack or any other event which Namogoo determines, in its sole discretion, may create a risk to the Remarkety Service or to any other Namogoo’s clients if the Remarkety Service is not suspended. Without limiting the generality of this Section, Namogoo shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Client‘s right to use the Remarkety Service pursuant to this Section.
e) Termination of this Agreement shall not affect any of Namogoo’s or Client’s obligations which exist as of the date of termination, including but not limited to the payment obligations. Furthermore, the undertakings set forth in this Section 5(d) and Sections 2 (License and Ownership), 4(c) (Taxes), 6 (confidentiality), 8 (disclaimer of warranties), 9 (limitation of liability), 10 (indemnification) and 11 (miscellaneous) of these Terms shall survive the termination or expiration of this Agreement.
6. Confidentiality.
a) For the purposes of this Agreement “Confidential Information” means all information of any kind, including but not limited to analyses, compilations, studies, documents, books, papers, drawings, ideas, concepts, systems, processes, procedures, methods, models, sketches and all embodiments of any of the foregoing (whether communicated orally, in written form or stored in any other media) disclosed by one Party to the other Party regarding the disclosing party, regardless of whether the information is specifically marked or designated as “confidential” or not, including without limitation, information concerning the disclosing party’s business activities and strategies, financial information, customer and supplier lists, intellectual property, technology, research, marketing information or plans and information regarding the disclosing party’s products and services. Confidential Information does not include information, which a Party can prove by written records that it: (i) was the possession of the receiving Party prior to the disclosure by the disclosing Party; (ii) becomes known to the general public through no act or omission of the receiving Party; (iii) is lawfully disclosed to the receiving Party by a third party; (iv) was developed by the receiving Party independently without use of any Confidential Information of the disclosing Party; or (v) is expressly approved in advance and in writing by the disclosing Party for release by the receiving Party.
b) Each Party agrees that it will not, for any reason, at any time or in any manner, directly or indirectly, use, disclose, communicate, publish, divulge disseminate, or cause to be used, disclosed, communicated, published, divulged or disseminated to any person or entity any Confidential Information of the other Party, except as specified hereunder. Each Party agrees that it shall take all reasonable steps to safeguard the disclosing Party’s Confidential Information including at a minimum, those steps that it takes to protect its own Confidential Information, but in any event not less than reasonable degree of care.
c) The receiving Party may use the disclosing Party’s Confidential Information only as necessary for performance of the receiving Party’s obligations under this Agreement and as permitted under the terms of this Agreement.
d) Upon request of a Party following the termination of this Agreement, the other Party shall return and/or destroy any Confidential Information received by it from the other Party pursuant to, or in connection with, this Agreement.
e) For the purposes of this Agreement, the Parties recognize and acknowledge that the Confidential Information may have competitive value and that if Confidential Information is improperly disclosed by the receiving Party, then it might result in irreparable damage to the disclosing Party.
7. Representations and Warranties.
a) Each Party represents and warrants that (i) it has full power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement without any further ratification or approval; (ii) this Agreement constitutes the legal, valid and binding obligation; (iii) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated in this Agreement violate or conflict with any obligation, contract, lease or license which could reasonably be expected to interfere with the consummation of the transactions contemplated in this Agreement; and (iv) it has the right, power and authority to grant the rights and licenses under this Agreement.
b) The Client represents and warrants that (i) the Client Website does not infringe the rights of, or misappropriate the property of, any entity or person, including, but not limited to, intellectual property rights; (ii) by embedding the Script within the Client Website it will not cause Namogoo to violate any applicable law, rule or regulation; (iii) it will use the Services solely according to the Documentation; (iv) the Data shall be obtained in compliance with applicable laws; and (v) if the Selected Service is Remarkety, then Client shall comply with all applicable laws and regulations applicable to Client’s use of Remarkety Service, including with respect to the content included under Messages, which laws and regulations shall include but not be limited to (a) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, the sending of electronic marketing messages and the sending of SMS and/or MMS text messages and (b) laws and regulations that apply to commerce, in each jurisdiction in which Client will be sending Messages to a resident of the jurisdiction. Client acknowledges and agrees that Namogoo (y) does not control or monitor all Messages, or guarantee the accuracy, integrity, security or quality of such Messages and (z) is not responsible for obtaining any necessary consents or permissions from recipients of Messages. Upon request, Client shall provide reasonable proof of compliance with the provisions set forth in this Section and Namogoo shall have no obligation to provide the Client with the Remarkety Service where Namogoo reasonably believes that Client has not so complied.
c) Namogoo represents and warrants that (i) the Services will be performed in a professional, workmanlike manner by an adequate staff knowledgeable about the Service; and (ii) Services will perform in accordance with the applicable Documentation.
8. Disclaimer of Warranties.
EXCEPT AS SET FORTH HEREIN, THE SERVICES AND TECHNOLOGY ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, NAMOGOO AND AFFILIATES: (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES; AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES: (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR (III) LOSS OF DATA.
9. Limitation of Liability.
a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. LIABILITY BETWEEN THE PARTIES FOR SUCH DAMAGES WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES.
b) EXCEPT IN CONNECTION CONFIDENTIALITY OBLIGATIONS AND CLIENT’S OBLIGATION TO PAY THE SERVICE FEES IN FULL, THE AGGREGATE AMOUNT FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE CAPPED AT THE AGGREGATE AMOUNTS PAYABLE HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING SUCH CLAIM.
10. Indemnification. The Client shall indemnify, defend and hold Namogoo harmless (including its affiliates, officers, directors, agents, representatives and employees) from any claim, allegation, liability, loss, expense or demand (including reasonable legal fees and costs), arising out of or relating to: (i) any misuse of the Services by Client; (ii) any use of the Services not in compliance with the Documentation; (iii) fee or fine incurred by Namogoo due to Client’s breach of its data protection obligations under the DPA or any claim that Namogoo’s use of the Data on behalf of the Client is in breach of Data Protection Laws.
11. Miscellaneous.
a) Assignment. Client acknowledges and agrees that it may not assign any of its rights or obligations as set forth in this Agreement without Namogoo’s prior written consent, and provided further, if Namogoo’s consent has been obtained, that the assignee shall accept the assignment of the terms of this Agreement in writing. Namogoo may assign any of its rights or obligations under this Agreement without obtaining the consent of Client to any of its affiliates and/or in connection with a merger, acquisition or reorganization.
b) Independent Contractor. Namogoo shall be an independent contractor, and nothing contained in this Agreement amount shall be construed to create or imply a joint venture, partnership, agency or employment relationship between the Parties. The Client shall not take any action or permit any action to be taken on its behalf, which purports to be done in the name of or on behalf of Namogoo. Neither Party, nor any of its employees or agents, shall, in any sense, be considered employees or agents of the other Party.
c) Marketing. Namogoo may publish a case study, the contents of which are subject to Client’s approval, which shall not be unreasonably withheld and may use the Client’s logo on such case study and on Namogoo’s website.
d) Modifications; Amendments. Namogoo reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Service or any part thereof, or the Client’s access thereto, and to modify or amend this Agreement at any time and for any reason, provided that Namogoo shall provide Client with a 30 days’ notice prior to such modification, suspension or discontinuation of the Service, to the extent possible. In the event that a modification or suspension as aforesaid will adversely affect the Service, Client shall be entitled to terminate this Agreement by providing Namogoo with a written notice of termination.
e) Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing and shall be deemed to have been received if sent to the address set forth in an Order Form (or any other address notified in writing by a Party to the other Party), as follows: (i) if delivered or sent by confirmed e-mail transmission including by sending notifications through the Dashboard, on the business day immediately following the transmission thereof; (ii) if delivered or sent by courier, upon receipt, and (iii) if sent by registered mail, on the date on which receipt is confirmed by the applicable postal service.
f) Severability. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
g) Governing Law. When the Client’s address is in the European Union, (i) this Agreement shall be governed by and construed under the laws of England and Wales, without regard to the conflict of laws provisions thereof, and (ii) any disputes arising under or in connection with this Agreement shall be exclusively presented in and determined by the courts of London. When the Client’s address is in North America, (i) this Agreement shall be governed by and construed under the laws of the State of New York, without regard to the conflict of laws provisions thereof, and (ii) any disputes arising under or in connection with this Agreement shall be exclusively presented in and determined by the courts of New York. When the Client’s address is in a country that is neither in North America nor the European Union (i) this Agreement shall be governed by and construed under the laws of the State of Israel, without regard to the conflict of laws provisions thereof, and (ii) any disputes arising under or in connection with this Agreement shall be exclusively presented in and determined by the courts of Tel Aviv.
h) Subscription Through Reseller. In the event that you have entered into a order form (or any equivalent agreement) with an authorized Reseller of Namogoo for the provision of the Services (“Reseller Agreement”), the following terms under these Term are applicable to you: 1 (Service) 2 (License and Ownership), 3 (Data, Privacy & Cookie Notice), 6 (confidentiality), 8 (disclaimer of warranties), 9 (limitation of liability), 10 (indemnification), 11(e) (notices) and 11(g) (Governing Law).
i) order of precedence. To the extent of any conflict between any provisions of these Terms, the DPA, Online Store term and/or an Order Form, the order of precedence shall be as follows:
In case of any conflict between any provisions of an Order Form and these Terms and/or the DPA – the terms in an Order Form, which are expressly provided to have precedence over these Terms and/or the DPA, will prevail;
In case of any conflict between any provisions of the DPA and these Terms – the terms in the DPA will prevail;
In case of any conflict between any provisions of the Online Store and this Agreement – the Online Store term will prevail.
In case of any conflict between any provisions of the Agreement and a Reseller Agreement – the Agreement will prevail.
CONTACT US
If you have any questions about these Terms, please contact us at: Namogoo Technologies Ltd., 8 Ha-Sadna’ot St., Herzliya, Israel.
You can also contact us via email at: legal@namogoo.com
