Recently updated: February 1, 2021
These Terms and Conditions together with an Order Form signed jointly by a Client and Namogoo, constitute the entire agreement between the Client and Namogoo Technologies Inc. and/or any of its affiliates (“Namogoo“), governing the Services referenced hereinafter (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.
- The Service. Namogoo provides a cloud-based service that optimizes the experience (the “Journey”) of visitors (the “Visitors”) on the Client’s Website, as outlined on the Order Form.
- Monitoring the Service Performance. Namogoo will provide the Client with access to a dashboard that presents data and metrics related to the performance of the Service within the Client’s Website (the “Dashboard”, and together with the Script and the Selected Service from the Order Form the “Service”).
- License. Subject to the terms and conditions of this Agreement, Namogoo hereby grants to the Client for the Term, a non-exclusive, non-transferable, non-sublicensable, limited license to embed the Script in the Client’s Website, and to otherwise use the Services all in accordance with the documentation and written instructions of Namogoo.
- License Restrictions. The license granted hereunder is granted in connection with the Client’s Website only. Client shall not, under any circumstances: (a) decompile, disassemble, reverse engineer, decrypt or otherwise attempt to derive any intellectual property of Namogoo, including but not limited to, the source code or communication protocols of the Service (b) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer or purport to transfer access or rights to the Script or Service; (c) alter, modify, change, revise, adapt, copy, reproduce or create derivative works of the Service or any part thereof; (d) use the Service in violation of applicable laws or (e) attempt to do, enable or allow others to do, any of the above.
- License by the Client. The Client hereby grants to Namogoo, a non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide license, limited to the Term of this Agreement, to monitor the Client’s Website, but only for the purpose of rendering the Service to the Client.
- Derived Intellectual Property. All intellectual property that is developed or discovered through rendering of the Service (hereinafter “Derived Intellectual Property”) under this Agreement by either Party, or both Parties acting together, may be used by both Parties either as an owner or a licensee as follows:
- All Derived Intellectual Property directly concerning the Visitors’ behavior in and interaction with the Client’s Website, which is otherwise specific to the Client’s Website (the “Client Derived IP”) shall be owned by the Client.
- Without derogating from the aforementioned, the Client hereby grants to Namogoo a free, irrevocable, perpetual, royalty free, sub-licensable, worldwide license to use all Client Derived IP for the provision of the Service, for research and development purposes and for future operations of Namogoo; provided, that Namogoo shall not disclose any Client Derived IP, statistical analyses or general reports produced by the Client, and any disclosure shall not be Client-specific nor enable the identification of the Client, any of the Visitors or other Confidential Information of the Client.
- All Derived Intellectual Property concerning the insights derived from the Service, analytical data or which is otherwise not specific to the Client’s Website, including, but not limited to, any information relating to the components of the Journey of Visitors and the impact of the details of that Journey on the behavior of Visitors shall be owned exclusively by Namogoo.
3. Privacy & Cookie Notice
- The terms and conditions of the Data Processing Addendum (the “DPA”) detailed at https://www.namogoo.com/dpa shall come into effect and apply in case that any personal data processed in connection with the provision of the Service to the Client.
- This Agreement is effective as of the date set forth in an Order Form and until the end of the Term as shall be set forth in an Order Form or if terminated earlier in the scenarios defined in sections 4.2-4.6 below (the “Term”).
- For avoidance of doubt, it is clarified that notwithstanding anything to the contrary under this Agreement, any TERMINATION OF THIS AGREEMENT BY CLIENT SHALL BE CONTINGENT UPON THE REMOVAL OF THE SCRIPT FROM ANY AND ALL CLIENT’S WEBSITE PAGES. In case of termination by either Party, it is the responsibility of the Client for the proper deletion of the Script from any of the Client’s Website pages. For so long as the Script is embedded into any part of the Client’s 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.
- In the event of a material breach of this Agreement, by either Party, which cannot be cured, the other Party may terminate this Agreement with immediate effect upon a written notice to the other Party regarding such termination. In the event that the breach is curable, either Party may terminate this Agreement upon a 7 (seven) days’ prior written notice to the other Party, unless the breaching Party cured the breach during such 7 (seven) days.
- This Agreement may be terminated by a Party with immediate effect upon the dissolution, termination of existence, insolvency, business failure, appointment of a receiver of any part of other Party’s property, 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 other Party.
- Upon request of a Party following the termination of this Agreement, the other Party shall return and/or destroy any Confidential Information (as defined below) received by it from the other Party pursuant to, or in connection with, this Agreement.
- 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 Sections 3, 4, 5, 6, 7 and 8 shall survive the termination or expiration of this Agreement.
5. Ownership of Rights.
- 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 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.
- 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.
- 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.
- 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.
- Confidential Information does not include information, which a Party can prove by written records that it:
- was the possession of the receiving party prior to the disclosure by the disclosing party;
- becomes known to the general public through no act or omission of the receiving party;
- is lawfully disclosed to the receiving party by a third party; or
- was developed by the receiving party independently without use of any Confidential Information of the disclosing party; or
- is expressly approved in advance and in writing by the disclosing party for release by the receiving party.
- 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. Limitation of Liability.
- The Client acknowledges that subject to the provisions of this Agreement, Namogoo does not warrant or represent that the Service will be error-free or uninterrupted in its use or operation. NAMOGOO PROVIDES THE SERVICE AND ANY RELATED MATERIALS “AS IS” AND WITHOUT ANY WARRANTY, REPRESENTATION OR UNDERTAKING WHATSOEVER, EXPRESSED OR IMPLIED EXCEPT AS SPECIFICALLY DETAILED IN THIS AGREEMENT. NAMOGOO HEREBY DISCLAIMS ANY AND ALL WARRANTIES THAT MAY APPLY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RESPECTING THE EFFICIENCY, PERFORMANCE, WORKMANSHIP, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
- EXCEPT IN CONNECTION WITH FRAUD OR MALICIOUS ACTS, 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.
- EXCEPT IN CONNECTION WITH FRAUD OR MALICIOUS ACTS, THE AGGREGATE 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.
8. Relationship of the Parties
Namogoo shall be an independent contractor, and nothing contained in this Agreement 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.
- 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.
- Taxes. Client shall be solely responsible for and shall pay all federal, state, local, sales and/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.
- Payments. 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.
- Marketing. Namogoo may publish a Case Study, the contents of which are subject to Client’s approval, which shall not be unreasonably withheld and use the Client’s logo on such Case Study and on Namogoo’s website.
- Analytics Access. Client will allow Namogoo to obtain or will provide to Namogoo upon written request reports including the number of sessions, pageviews, unique visitors, orders and average order value.
- 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.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument.
- 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 facsimile or e-mail transmission, 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.
- 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.
- Governing Law. When the Client 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 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.
- Conflict of Terms. In the event of a conflict or inconsistency between or among this Agreement and the Order Form, the provisions of this Agreement shall prevail, unless otherwise expressly agreed in an applicable Order Form with respect to the specific provision.