Last Revised: September 9th, 2019
- Acceptance of the Terms
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THESE TERMS, YOU MAY NOT USE THE SERVICES.
- Use of the Services
During the Access Term (as defined below), and solely for your internal business use, Bidalgo grants to you a non-exclusive, non-transferable, non-assignable, personal right to use the SaaS Services specified in the Order through internet access, in accordance with the rights specified in the Order. With respect to the Documentation, you may make a reasonable number of copies of the Documentation applicable to the SaaS Services solely as reasonably needed for your internal business use in accordance with the express use rights specified herein. You acknowledge and agree that the use rights provided hereunder do not grant any rights not explicitly expressed. All other such rights and interests in Bidalgo IP (including any derivatives thereto) are expressly reserved, owned by and remain vested in Bidalgo and its third party vendors, and except for the limited use rights granted hereunder, you shall not assert any right, title, or interest in or to any Bidalgo IP, or portion thereof. Without limiting the foregoing, you acknowledge and agree that no rights or any other interests are provided to you with respect to: (i) rights in or to the Hosted Environment or SaaS Services beyond those rights specified in the Order, (ii) rights to provide access to or use of the Hosted Environment, SaaS Services to any other party, including, without limitation, any uses in the nature of a service bureau or application services provider, (iii) rights to obtain possession of copies of any component of the Hosted Environment or any software used to provide or perform the SaaS Services, or (iv) representations, warranties or other third party beneficiary rights from any Bidalgo third party vendor.
Access Term. Unless otherwise specified on the Order, an Access Term shall commence upon the date Bidalgo accepts the applicable Order and shall continue for the initial term as specified on the Order. In the event you place additional Orders for the same SaaS Service, Bidalgo may adjust the duration of the additional Access Terms to co-terminate with the Access Terms for that SaaS Service. Each Access Term is non-cancelable.
You may not use the SAAS Services for any purposes, other than for the purpose of enhancing your internal business advertising campaigns on Facebook, Instagram, and/or Pinterest.
You will use all reasonable endeavors to prevent any unauthorized access to, or use of, the SaaS Services and, in the event of any such unauthorized access or use, promptly notify Bidalgo.
In consideration for the use of the SaaS Services, You shall pay Bidalgo the amounts set forth on each Order (“Fees”).
Payment Terms. The Effective Date is the start of the billing period and will be invoiced accordingly. The customer is liable for any due payments until actually received by Bidalgo. Any payment not received by Bidalgo within the periods agreed under the Order shall accrue interest at a rate of four percent (4%) per month, or the highest rate allowed by applicable law, whichever is lower. All Fees are non-cancellable and non-refundable. All Fees are stated and payable in US Dollars, and are exclusive of VAT, which shall be added to Bidalgo’s invoice(s) at the appropriate rate. You agree to make all payments under each Order and these Terms without set-off or counterclaim and free and clear of any withholding or deduction (save as required by law) for any present or future taxes, levies, imposts, duties or other charges. If you are obliged by law to make any such withholding or deduction, you will pay to Bidalgo in the same manner and at the same time additional amounts to ensure that Bidalgo receives a net amount equal to the full amount which Bidalgo would have received if no such deduction or withholding had been required
- Use Restrictions
There following are strictly prohibited when using the SaaS Services. Please read the following restrictions carefully.
You may not, whether by yourself or anyone on your behalf: (i) modify, alter, create derivative works from, reverse engineer, decompile, or disassemble any part of the SaaS Services, nor attempt in any other manner to obtain the source code or otherwise reduce to human-perceivable form any part of the SaaS Services; (ii) frame, mirror, republish, download, display, transmit, or distribute all or any portion of the SaaS Services in any form or media or by any means; (iii) remove any proprietary notices, labels, or marks on or in any part of the SaaS Services, including without limitation any trademark or copyright notices; (iv) disclose the results of testing or benchmarking of the SaaS Services to any third party, or access or use the SaaS Services or any part thereof in order to build or support, and/or assist a third party in building or supporting, products or services which are competitive to Bidalgo’s; (v) use the SaaS Services to provide services to third parties; (vi) disseminate, distribute, disclose, or copy any printed documentation which accompanies the SaaS Services; (vii) sublicense, rent, or lease any portion of the SaaS Services; (viii) host, outsource, display, or commercially exploit the SaaS Services, or use the SaaS Services as part of a facility management, timesharing, service provider, or service bureau arrangement; (ix) use the SaaS Services in any manner not expressly authorized by these Terms; (x) attempt to obtain, or assist third parties in obtaining, access to the SaaS Services, the Services and/or documentation; (xi) take any actions which (i) would disable the SaaS Services or impair in any way its operation based on the elapsing of a period of time, the exceeding of an authorized number of copies, or the advancement to a particular date or other numeral (referred to as “time bombs”, “time locks”, or “drop dead” devices); or (ii) would prevent Bidalgo to access the SaaS Services for the purposes of its operations or (xii) infringe or violate any of the Terms.
Except with Bidalgo’s prior written consent, You may only use the materials provided by Bidalgo under any relevant Order via Bidalgo’s platform.
- Intellectual Property
You retain all ownership and intellectual property rights in and to Your Customer Data and all data generated by You during Your use of the Services, You hereby grant Bidalgo the right to use such data (i) in order to provide the Service to You and (ii) in aggregate anonymized form for Bidalgo’s internal business purposes. You acknowledge and agree that Bidalgo and/or its licensors own all intellectual property rights in the SaaS Services. Except as expressly stated herein, these Terms does not grant you or Authorized Users any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade-marks (whether registered or unregistered), or any other rights or licenses in respect of the SaaS Services or other intellectual property of Bidalgo. The rights provided under these Terms are granted to you alone, and shall not be considered granted to any subsidiary or holding comply of yours, unless expressly authorized in writing by Bidalgo.
In the event you elect to receive any creative services (including without limitation, playable ads) from Bidalgo, as between the Parties, You shall own the creative results, but excluding the portion thereof which constitutes Bidalgo IP (as defined herein). “Bidalgo IP” shall mean Bidalgo’s technology, techniques, methods, systems, know-how, technical information, confidential information and intellectual property rights, that existed before the commencement of the Services or that were developed independently of the Services provided to You under an Order. Moreover, it is agreed and acknowledged that You shall use any creative results provided to You by Bidalgo solely via the Bidalgo SAAS platform.
For the purpose of these Terms Customer Data shall mean all data either provided by you or entered on your behalf through use of the SaaS Services, or collected or generated by the SaaS Services on behalf of you, including any Personal Data.
In the event that you provide to Bidalgo any suggestions, comments and feedback regarding the SaaS Services, you hereby grant Bidalgo and its licensors a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license grant to freely use, have used, sell, modify, reproduce, transmit, license, sublicense (through multiple tiers of sublicensees), distribute (through multiple tiers of distributors), and otherwise commercialize such feedback in connection with the SaaS Services or related technologies.
- Your Obligations
You shall be solely responsible for the actions of your employees while using the SaaS Services and the contents of its transmissions through the SaaS Services (including, without limitation, Customer Data), and any resulting charges. You agree: (i) comply with all applicable laws and regulations with respect to your activities under these Terms, including without limitation, to abide by all local, state, national, and international laws and regulations applicable to your use of the SaaS Services, including without limitation all laws and administrative regulations (including, all U.S. and applicable foreign) relating to the control of exports of commodities and technical and/or Personal Data, and shall not allow any of your employees or Data Subjects to access or use the SaaS Service in violation of any export embargo, prohibition or restriction, including but not limited to any party on a U.S. government restricted party list; (ii) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Hosted Environment, SaaS Services or another’s computer; (iii) not to use the SaaS Services for illegal purposes; (iv) not to interfere or disrupt networks connected to the Hosted Environment or SaaS Services; (v) not to post, promote or transmit through the SaaS Services any unlawful, harassing, defamatory, privacy invasive, abusive, threatening, offensive, harmful, vulgar, obscene, tortuous, hateful, racially, ethnically or otherwise objectionable information or content of any kind or nature; (vi) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (vii) not to interfere with another customer’s use and enjoyment of the SaaS Services or another entity’s use and enjoyment of similar services; (viii) not to engage in contests, chain letters or post or transmit “junk mail,” “spam,” “chain letters,” or unsolicited mass distribution of email through or in any way using the SaaS Services; (ix) to comply with all regulations, policies and procedures of networks through which You connect to, or uses in connection with the SaaS Services; and (x) to provide any required notifications to Data Subjects, and obtain all rights and requisite consents from Data Subjects in accordance with all applicable data privacy and other laws in relation to the collection, use, disclosure, creation and processing of Personal Data, and in connection with this Agreement and the use of the SaaS Services. In addition, You represent that during the Term, you shall: (a) be and remain exclusively responsible for all ad content, data and information provided to Bidalgo for the purpose of performing the Services, and that all such content, data and information has been and shall be legally obtained, does not and will not infringe any third party rights, and is not defamatory, obscene, abusive, invasive of privacy or illegal, (b) allow Bidalgo, its agents, subcontractors, and third-party service providers, to access, use, transfer, display, reproduce, and modify your ad content, data and information for the sole purpose of providing the services, (c hold and any necessary rights to allow the use of your ad content, data and information as contemplated hereunder, , (d) carry out all other responsibilities set out in these Terms in a timely and efficient manner, (e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Bidalgo, its contractors and agents to perform their obligations under these Terms, (fi) ensure that your network and systems comply with the relevant specifications provided by Bidalgo from time to time, (g) be solely responsible for procuring and maintaining your network connections telecommunications links from your systems to Bidalgo’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet, (h) solely responsible and you agree to regularly track, review and verify that the SaaS Services is duly performing in accordance with your requirements, specifications, expectations and goals. Without derogating from any of the foregoing or from the provisions of Sections 10 and 11 below, you acknowledge and agree that in the event that the SaaS Services does not perform as required, specified, expected and/or desirable by you, your only recourse is to terminate the Terms in accordance with these Terms and Bidalgo shall not be liable to you or to any third party with respect thereto. You further acknowledge, represent and agree that your continued use of the SaaS Services following any such non-performance, will constitute your acceptance of, and agreement to continue to experience, such SaaS Services performance.
You hereby represent and warrants that any content, information and data (including Customer Data) provided to Bidalgo during the course of your engagement with Bidalgo shall not include Personal Data of any third party. You and not Bidalgo shall be responsible for any information provided, made available to Bidalgo, beyond the scope permitted hereunder. For the purposes of these Terms, (i) “Personal Data” shall mean all information and data of any kind collected, received, held, accessed, maintained, stored, processed, controlled or used, that under applicable law is considered to be personal data or individually-identifiable information from or about an individual, including, but not limited to, an individual’s: (a) personally identifiable information (e.g., name, address, telephone number, email address, financial account number, government-issued identifier, and any other data used or intended to be used to identify, contact or precisely locate a person), (b) Internet Protocol address or other online or persistent identifier, (c) ”Personal Data” as defined by the GDPR and applicable data protection or privacy laws and regulations to which the You or Bidalgo may be subject; and (ii) Data Subject shall mean an individual who uses the SaaS Services and/or about which information is collected or generated as a part of the SaaS Services.
- Third Party Providers
Bidalgo’s Indemnification. If a third party brings an action, suit or proceeding alleging that against you resulting from your authorized use of the SaaS Services in accordance with these Terms, and such claim alleges that the software used by Bidalgo to provide or perform the SaaS Services infringes such third party’s intellectual property rights, Bidalgo, at its sole cost and expense, will defend you against the claim and indemnify you from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by Bidalgo, provided you do the following: (i) notify Bidalgo promptly in writing, not later than 30 days after you receive notice of the claim (or sooner if required by applicable law), (ii) give Bidalgo sole control of the defense and any settlement negotiations; and (iii) give Bidalgo the information, authority, and assistance Bidalgo needs to defend against or settle the claim.
If Bidalgo believes or it is determined by a court of competent jurisdiction that the SaaS Services have violated a third party’s intellectual property rights, Bidalgo may choose to either modify the SaaS Services to be non-infringing (while substantially preserving their utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Bidalgo may terminate your rights under the Terms and refund any unused, prepaid fees you may have paid for the SaaS Services. Notwithstanding anything to the contrary contained hereunder, Bidalgo will not indemnify or defend you if you altered the SaaS Services or used them outside the scope of use identified in the Terms, or if you used a version of the Software which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Software which was provided to you. In addition, Bidalgo will not defend or indemnify you to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by Bidalgo, or (ii) any materials from a third party portal or other external source that is accessible to you within or from the SaaS Services (e.g., a third party Web page accessed via a hyperlink). Bidalgo will not indemnify you to the extent that an infringement claim is based upon the combination of the SaaS Services with any products or services not provided by Bidalgo. Bidalgo will not indemnify you for infringement caused by your actions against any third party if the SaaS Services as delivered to you and used in accordance with the terms of the Terms would not otherwise infringe any third party intellectual property rights. Bidalgo will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the Terms (pursuant to a claim, demand, or notice); or (2) your actions prior to or following the effective date of the Terms. This section provides your exclusive remedy for any infringement claims or damages.
Your Indemnification. You shall indemnify, defend, and hold Bidalgo (including its officers, employees, agents and affiliates) harmless from and against any claims, damages, losses, and liabilities incurred or arising from Your, your affiliates or your employees, material breach of the terms and conditions hereof and/or included by references herein and you shall reimburse Bidalgo for all damages, costs, and expenses (including reasonable attorneys’ fees) awarded against Bidalgo pursuant to any such actions.
By virtue of the Terms or provision of the SaaS Services, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under the Terms. Confidential information shall include without limitation, the terms and pricing under the Terms, the documentation accompanying the SaaS Services, information relating to the technology and code contained in the SaaS Services, Your Customer Data.
A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party without use of or reference to the Confidential Information.
- Disclaimer and Warranties
Bidalgo warrants and represents that the SaaS Services will substantially conform to the Documentation. This warranty shall not apply to the extent of any non-conformance which is caused by use of the SaaS Services contrary to Bidalgo’s instructions, or modification or alteration of the SaaS Services by any party other than Bidalgo or Bidalgo’s duly authorized contractors or agents. If the SaaS Services does not substantially conform to the Documentation, Bidalgo will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the warranty set out above.
EXCEPT FOR THE WARRANTY SET FORTH ABOVE, YOU UNDERSTAND AND AGREE THAT THE SAAS SERVICES AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR RELIABILITY. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT BIDALGO DOES NOT GUARANTEE THAT THE SAAS SERVICES OR THE PERFORMANCE OF THE SERVICES WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF ANY PROGRAM LIMITATIONS OR FAILURES, OR THAT THE SAAS SERVICES AND/OR ANY FEATURE AVAILABLE THEREIN (WHETHER OR NOT CONFIGURABLE BY YOU) AND/OR ANY INFORMATION OBTAINED BY YOU THROUGH THE USE OF THE SAAS SERVICES WILL MEET AND/OR PERFORM IN ACCORDANCE YOUR REQUIREMENTS, SPECIFICATIONS, EXPECTATIONS, CONFIGURATIONS AND/OR GOALS, OR THAT BIDALGO WILL CORRECT ANY OR ALL SAAS SERVICES ERRORS, DEFICIENCIES AND/OR NON-PERFORMANCES. YOU ACKNOWLEDGE THAT BIDALGO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BIDALGO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Limitation of Liability
Under no circumstances will either party be liable for indirect, special, incidental or consequential damages, including, without limitation, lost profit or loss resulting from business interruption or loss of data, even if a party has been advised of the possibility or likelihood of such damages. Neither party will be liable to the other party for any delay, loss or damage attributable to any service, SaaS Services or action of any person other than its own and its employees. Except for gross negligence and willful misconduct, in no event will Bidalgo’s aggregate liability for any and all claims, losses or damages arising out of or relating to these Terms or any Services (whether in contract, equity, negligence, tort or otherwise) exceed the aggregate fees paid by You to Bidalgo under these terms during the twelve (12) month period immediately preceding the date upon which the applicable cause of action arises. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THESE TERMS MAY BE BROUGHT BY YOU MORE THAN TWELVE (12) MONTHS AFTER THE TERMINATION OR EXPIRATION OF THE RELEVANT ORDER.
- Amendments to the Terms
Both parties may change the Terms only upon mutual written agreement..
The Services provided under these Terms shall be provided for the period defined in the Order unless earlier terminated in accordance with these Terms. All rights and licenses granted to you under these Terms shall immediately terminate upon expiration or termination of the Term, and you shall cease all use of the SaaS Services, and delete and purge all traces of the SaaS Services from your systems and custody. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced by the termination or expiration of the Term.
- SAAS Support and Training
In the event You are receiving access to the SAAS Services, during the Term, you will be entitled to receive Bidalgo’s standard customer support services (“Support Services“) during normal business hours (if you are located in either Israel and Europe during the hours of 9:00 a.m. to 5:00 p.m., Sunday-Thursday, Israel standard time, and if you are located in the United Stated during the hours 10:00 a.m. to 5:00 p.m. Pacific Time Monday-Friday) in connection with the SaaS Services, as well as emergency tech support on a 24/7 basis. You may be entitled to receive enhanced Support Services in the event such are included under the Order. During the Term Bidalgo shall make available to you, upon written request, such on-site (at your premises) training services as generally made available by Bidalgo to customers, for a separate training service fee of $2000 per day of training. You undertake that you will provide Bidalgo with all necessary cooperation and access to information in relation to these Terms as may be required by Bidalgo, in order to render the Support Services, including Customer Data, security access information and configuration services. In the event of any delays in your provision of such assistance as agreed by the parties, Bidalgo may adjust any agreed timetable or delivery schedule as reasonably necessary.
Miscellaneous. Any written notice connected with these Terms will be sufficiently made on the mailing date if sent by registered, certified or first class – postage prepaid mail to the other party at its address set forth on the relevant Order. Nothing in these Terms shall in any way be construed to constitute You or Bidalgo as an agent, partner, joint-venturer, employee or representative of the other, and both You and Bidalgo shall remain independent contractors. You may not assign the Terms or give or transfer the SaaS Services or an interest in them to another individual or entity. Each of You and Bidalgo intends that these Terms will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than You and Bidalgo. You agree that Bidalgo may publicly refer to You as its You in sales presentations, marketing materials and press releases, and that Bidalgo shall be permitted to display the logo of the You on Bidalgo’s website. Each of You and Bidalgo will be excused for delays in performing or from its failure to perform hereunder (other than payment delays) to the extent that the delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of the delay or failure. No waiver by either You or Bidalgo of any breach of these Terms will constitute a waiver of any other breach of the same or other provisions of these Terms. No waiver by either You or Bidalgo will be effective unless made in writing and signed by an authorized representative of that party. These Terms (including reference to information contained in a URL or referenced policy), together with any outstanding Order executed pursuant thereto, constitutes the entire agreement and understanding of You and Bidalgo relating to the subject matter hereof. These Terms supersedes all prior written and oral agreements and all other communications between Bidalgo and You. If any provision in these Terms is invalid or unenforceable in any circumstance, its application in any other circumstances and the remaining provisions of these Terms will not be affected thereby. In the case of conflicts or inconsistencies between these Terms and any Order hereto, these Terms will prevail, except as specifically stated otherwise. Unless designated as replacing a specific outstanding Order, a new Order will be considered to be in addition to then-outstanding Order.
Governing Law. These Terms and any relevant Order and any claim arising from these Terms or any relevant Order will be governed by and interpreted in accordance with the laws of the United States and the State of New York, without regard to conflicts of laws and principles. Any and all actions brought to enforce or resolve any dispute arising out these Terms or any relevant Order must be brought exclusively in courts having jurisdiction in Los Angeles County, USA and each party hereby consents to and agrees to submit to the exclusive personal jurisdiction and venue of such courts. The Parties hereby waive their right to a jury trial.
Compliance with Export Regulations. You have or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals (if applicable); shall indemnify and hold Bidalgo harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. You shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws (e.g., in the U.S., Israel, the Bureau of Export Administration of the U.S. Department of Commerce).