Social Wave Terms of Service

 (hereafter referred to as “Social Wave”) has developed a plug-in and widget for social shopping for e-commerce Internet sites, through which products are advertised through social media (the “Services”). This agreement (the “Agreement”) governs your use and access of the Service. 

 

Please read this Agreement carefully. You must accept this Agreement prior to using the Services. By using the Services, you signify your consent to this Agreement. Changes may be made to this Agreement from time to time. We will make commercially reasonable efforts to provide you with notice of any such changes, and your continued use of the Service following such notice shall be deemed acceptance to any such amended or updated terms. In this Agreement, “Customer” or “you” means the individual or entity using the Services.  End user purchasers using the Services will also need to accept Social Wave’s end user terms and conditions.  

 

NOW, THEREFORE, the parties hereby agree as follows: 

 

  1. Service. Subject to the terms and conditions of this Agreement, Social Wave shall provide Customer with a plug-in (the “Social Wave Software”) for installation on Customer’s Internet site (the “Site”).  Customer may use the Social Wave Software on a non-exclusive basis solely for the purpose of receiving the Services from Social Wave for its own commercial purposes. Except for the executable form of the Social Wave Software provided by Social Wave, Customer shall not be entitled to any other software (including any other executable or source code) from Social Wave. No licenses or rights are granted herein by estoppel or by implication. Customer represents that it has all necessary authority to enter into this Agreement and that the execution of this Agreement and the receipt of the Services will not conflict with any legal, regulatory or contractual obligations of Customer.

  2. Restrictions. Except as set forth expressly herein, Customer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Social Wave Software or the Services; (b) modify the Social Wave Software or Services, (c) sublicense, sell, distribute or provide the Social Wave Software or Services to any third party, (d) bypass any security measure or access control measure of the Social Wave Software or Services or (e) use the Services to provide services to any third party, including as a service bureau or on a time-share basis. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Customer shall inform Social Wave in writing in each instance prior to engaging in the activities set forth above.

  3. Customer Material. End user purchasers may photograph and display certain materials available on the Site (“Customer Material”).  You represent and warrant that no Customer Material (a) infringes the intellectual property, publicity, privacy or moral rights of any third party, (b) contains any material that is defamatory, harassing or threatening; (c) contains any pornography or obscene material; or (d) contains any malware or other material that is illegal or fraudulent. You provide Social Wave and your end user customers with a worldwide, non-exclusive, royalty-free, and sublicensable license of all worldwide rights necessary to duplicate, publish, display and make available Customer Materials as necessary to use and provide the Services .

  4. Intellectual Property. Social Wave has all right, title and interest in the Social Wave Software and Services, including all enhancements, improvements and modifications thereof (“Social Wave Property”). Social Wave does not request Customer’s feedback regarding the Social Wave Property. Notwithstanding the foregoing, if Customer provides Social Wave with any feedback regarding the Social Wave Property, Social Wave may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.  Subject to the foregoing, Customer retains all right, title and interest in Site and all Customer Data.

  5. Data; Privacy. Social Wave collects data from the Site on which the plugin is installed, including data from Customer’s store catalog, orders and reviews (“Customer Data”). In addition, Customer Data includes data regarding actions taken by end users on the Site, as set forth in more detail in Social Wave’s privacy policy, a current version of which is available at https://swaves.io/privacy-policy (the “Privacy Policy”). All Customer Data is the property of Customer, and Customer agrees to the collection and use of data by Social Wave as set forth in the Privacy Policy. The Site shall display a privacy policy that accurately describes how the Site collects, uses, stores and transfers data, all in compliance with applicable law. 

  6. Confidentiality. Either party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its provision or use of the Services. Confidential Information shall not include information that Receiving Party can show (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperate in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. All pricing information herein and all non-public information in respect of the Services shall be deemed the Confidential Information of Social Wave.

  7. Payment. In consideration of the Services, Customer shall make payment to Social Wave as are set forth in pricing tables made available by Social Wave, such as for example on the Social Wave Internet site or the applicable ecommerce application store. By accepting this Agreement you agree to such pricing. Amounts due hereunder do not include VAT and other taxes, and Customer shall make payment in respect of such taxes in addition to other amounts due hereunder. Customer shall make payment to Social Wave without deduction or withholding of any taxes or other government charges. Late payments shall bear interest at the rate of 18% per annum. 

  8. Discounts. Customer shall through the Services provide a discount on certain goods to end user purchasers of the Site that has completed specified actions such as, for example, photographing the specified goods and including required tags. Such discounts shall be provided by Customer on specified goods and services and according to parameters provided by the Customer and calculated by algorithms of Social Wave. Customer hereby authorizes Social Wave to apply such calculated discounts automatically to purchases on the Site. Customer may change such specifics parameters using the interface of the Services provided by Social Wave. Customer is responsible and liable for the provision of all discounts and Social Wave has no obligation or liability to provide any discounts, and has no liability or responsibility for any provided discounts. Customer must review applied discounts in order to ensure that discounts are being applied according to Customer’s preferred parameters. 

  9. Warranties; Disclaimer.  Social Wave represents and warrants that the Software and Services shall comply with applicable specifications provided by Social Wave in all material respects. Subject to the foregoing, The Social Wave Software and Services are provided “as is”. To the maximum extent permitted by applicable law, Social Wave disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. 

  10. Indemnification.

    1. Social Wave Indemnification Obligations. Social Wave shall defend, indemnify and hold Customer harmless from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Customer may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party against you arising from any claims that the Social Wave technology which provides the Services infringe the intellectual property rights of a third party, provided however that Social Wave shall not have any liability to the extent any claim is the result of (a) Customer’s actions, omissions or breach of this Agreement, (b) any material appearing on the Site not provided by Social Wave, (c) Customer Data or (c) any modification or combination of the Services with other software, hardware or services not provided by Social Wave. If the Services shall be the subject of an indemnifiable claim, or Social Wave reasonably believes that the Services shall be the subject of an indemnifiable claim, Social Wave may terminate this Agreement with written notice if modification of the Services to be non-infringing or compliant with applicable law is not reasonably practical.

    2. Customer Indemnification Obligations. Customer shall defend and indemnify Social Wave (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Social Wave may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from (a) any claim that Customer did not provide any discounts received by an end user or (b) any claims against Social Wave by a Customer in connection with the Site, or (c) any breach of Customer’s obligations, representations or warranties in this Agreement. 

    3. Procedure. The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own election at its own expense.

  11. Limitation of Liability. In no event shall Social Wave (or its directors, officers, affiliates, agents or employees) have any liability for any consequential, indirect, special or punitive damages, arising out of or relating to the Social Wave Software or Services. The entire liability of Social Wave (or its directors, officers, affiliates, agents or employees) hereunder shall not exceed the total amount Customer has actually paid to Social Wave.  

  12. Term.  The term of this Agreement (“Term”) shall commence on the Effective Date and shall continue until terminated pursuant to the terms hereof. Either party may terminate this Agreement at any time with written notice. Either party may terminate this Agreement upon written notice if the other party shall materially breach this Agreement and not cure such breach within 10 days of receipt of written notice thereof from the non-breaching Party. Upon any termination of this Agreement, Customer shall cease all use of the Services and shall delete all copies of the Social Wave software. Sections 2 – 14 of this Agreement shall survive any termination or expiration thereof. For clarity, the termination or expiration of this Agreement shall not affect the obligation of Customer to provide any discounts earned or received by end users through the Services during the term of this Agreement.  Neither party shall have liability for the termination of this Agreement in accordance with its terms.

  13. Publicity. Social Wave may disclose that Customer is using the Services, including by displaying Customer’s name and logo on Social Wave’s website and other marketing materials.  

  14. Miscellaneous. This Agreement together with its Exhibits constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties regarding the subject matter hereof. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement. Social Wave may assign its rights or obligations under this Agreement to an affiliated company or to a purchaser of all or substantially all of Social Wave’s assets or share capital, or to any company succeeding to Social Wave’s business. Customer shall not assign any of its rights or obligations hereunder without Social Wave’s prior written consent. Assignments in violation of the foregoing shall be void. This Agreement shall be governed by the laws of the State of Israel, and the competent courts in the city of Tel Aviv shall have exclusive jurisdiction to hear any disputes arising hereunder. Notwithstanding the foregoing, either party may seek an injunction or other equitable relief in any court of competent jurisdiction in order to prevent a breach or threatened breach of this Agreement.

 

 

Last updated: may 2018

 

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