Last Revised: November 7th, 2019
B. Please read these Terms carefully; if you access, register or use the Platform you agree to be bound by these Terms. You acknowledge that these Terms are binding, and you affirm and signify your consent to these terms, by either: (i) clicking on a button or checking a checkbox for the acceptance of these Terms; or (ii) Registering to, using or accessing the Platform, whichever is earlier (the “Effective Date”).
C. In order to access the Platform you have to register to the Platform and create an account (the “EX.CO Account“). When you create your EX.CO Account, you must provide us with up-to-date, accurate and complete information. You may not impersonate any person or entity or misrepresent your affiliation with any person or entity.
D. You are responsible for safeguarding your password or log-in credentials. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your EX.CO Account, whether or not you have authorized such activities or actions. You hereby release EX.CO from any and all liability concerning such activities or actions and you will immediately notify us of any unauthorized use of your EX.CO Account.
A. “Assets” shall mean websites controlled and operated by, or otherwise sufficiently licensed to Customer.
B. “Confidential Information” shall mean any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the date the Terms entered into effect, and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, research and development, formulas, programming, know-how, proprietary knowledge, technology and any related documentation, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications, financial and marketing information, business plans, business procedures, clients’ list, business partners or other information disclosed by one of the parties hereto (the “Disclosing Party”) to the other party (the “Receiving Party”) either directly or indirectly in writing, orally or by drawings. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) is required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a protective order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality.
C. “Customer Content” means any content or materials uploaded or submitted by Customers (in whatever format, including text, photos, images, animations, graphics, logos, designs, links, audio, music and video files) via the interactive content formats that are included in the Platform, and/or other content (such as posts, comments or landing pages), submitted through or on the Platform.
D. “Data” shall mean all data transmitted to EX.CO through the Tag (as hereinafter defined), including metadata (such as title, author, description and other information pertaining to the Embedded Items), including any personal and non-personal information pertaining to Users collected through their interaction with the Embedded Items, Advertisements and/or with the Asset.
E. “Insertion Order” shall mean a binding written agreement (including an online registration page or online order form) entered into or accepted by Customer (and/or EX.CO, as applicable).
F. “Malicious Code” shall mean viruses, worms, malware, spyware, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, including code that is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network.
G. “Objectionable Content” shall mean content that promotes or contains links to content that is (i) pornographic, sexually explicit or obscene, (ii) harassing, threatening, abusive, inflammatory or racist, (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) infringes upon the intellectual property rights of any third party, including copyrights, trademarks, trade names, trade secrets or patents of such third party; (vi) violates the privacy, publicity, moral or any other right of any third party; (vii) offers or disseminates any fraudulent goods, services, schemes, investment opportunities, promotions or advice not permitted by law; (viii) promotes illegal gambling, the use of illegal substances, or the consumption of alcoholic beverages or tobacco-related products; (ix) directed or primarily appeals to children under the age of 16; (x) harmful to EX.CO’s or any other party’s systems and networks, including Malicious Code, adware, spyware or drive-by download applications; (xi) violates any obligation of confidentiality; or (xii) unacceptable in EX.CO’s sole discretion.
H. “Proprietary Rights” shall mean all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered: marks, trademarks, service marks, trade names, trade dress and associated logos, domain names and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and Confidential Information; (e) all rights in databases and data compilations (including, with respect to EX.CO, the Data), whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
J. “User” shall mean any individual visiting, interacting with or otherwise using the Platform, excluding the Customer.
A. You may use our Platform only if you can form a binding contract with EX.CO. Any use or access by anyone under the age of 18 is prohibited. By accessing this Platform, you certify to us that you are at least 18 years old.
B. You can use the Platform either individually, or on behalf of your employer or any other entity which you represent. In case you represent your employer or another entity, you hereby represent that: (i) you have full legal authority to bind your employer or such entity to these Terms; and (ii) after reading and understanding these Terms and upon subscription you agree to these Terms on behalf of your employer or the respective entity, and these Terms shall bind your employer or such entity. Please note that you are deemed as an authorized representative of your employer or an entity if you are using your employer’s or an entity’s email address in registering into the Platform.
C. By creating an EX.CO Account and registering to the Platform you become, either individually or on behalf of your employer or any entity, on behalf of whom you created the account, an EX.CO customer (the “Customer“).
D. There may be several types of EX.CO Account users, such as administrators, viewers and team members, all of whom are collectively referred to herein as the Customer. The features and functionalities available to the different EX.CO Accounts are determined by the respective Subscription Plan governing such EX.CO Account, and the privileges of each such users are assigned and determined by the EX.CO Account administrator.
4. License and Restrictions
A. Subject to these Terms, EX.CO grants you a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable and revocable license to access and use our Platform, during the Subscription Term (as defined below), as set out below and strictly as identified in the Subscription Plan (as defined below), and subject to any Usage Limits (as defined below) identified in the Subscription Plan:
i. EX.CO Account – Customer may register an EX.CO Account on the Platform that will enable the Customer to create and embed content.
ii. Creation of Content & Embedding – During the Term, Customer may utilize the available formats on the Platform to create Embedded Items that will be displayed or embedded on the Assets.
iii. Customer Profile Page. If Customer chooses, create a profile page that will be displayed on the Platform and will include Customer’s logo, images, links to Customer’s social platforms, and links to all items created by Customer through the Platform.
iv. Lead Generation. Customer may utilize the available formats on the Platform to create a form for the purpose of enabling end-users to volunteer contact information. It is hereby clarified that Customer is solely responsible to ensuring that it has obtained appropriate lawful grounds and satisfied applicable notice requirements, in accordance with applicable data protection laws and the DPA, with regards to any data directly submitted or volunteered by the Users. Customer shall be held solely reliable for any modifications, alterations, omissions or changes made with respect to any default notice or disclaimer made available by EX.CO in connection with any of the embedded functionalities/features of the Platform, including the creation of a lead-generation form.
v. Pixel Management: The Customer may provide EX.CO with a pixel that will be included in the Embedded Items which will be served on the Assets. The pixel will enable the re-targeting of users that have completed the Embedded Items Item. Customer shall not use or enable the pixel to be used in such a way as to: (i) collect or link to any personal data (as this term is defined under applicable laws); (ii) compromise, impair or degrade the performance or security of the Platform and/or any third party’s device, software, websites and networks. Customer shall treat any information that it has collected and which is related to the above campaign in accordance with applicable laws and regulations, including any data protection laws.
C. Customer may not, and may not encourage or assist others to:
i. Publish, distribute, duplicate, sell, re-sell, disclose, “frame”, market, license, sublicense, rent, lease, display, provide, transfer or make available the Platform or make any other use of Platform (including the Embedded Items or any content available therefrom), any portion thereof or any content displayed therein, to any third party, except as explicitly permitted in these Terms or with our prior express and written permission;
ii. Modify, remove, edit, amend, truncate, obscure, bypass or reorder any aspect of the Embedded Items, unless EX.CO makes available the means for the foregoing through an explicit embedded feature or functionality offered by EX.CO in the Platform and to the extent enabled by such feature or functionality;
iii. Download, extract, republish, retransmit, reproduce or make any other use of the Embedded Items (including the Customer Content, EX.CO Content or any portion thereof) as a stand-alone file;
iv. Decompile, reverse engineer, disassemble, enhance, or otherwise make any attempt to discover the source code of, hack, or create derivative works from the Platform (including the Embedded Items or any content displayed or available therefrom) or any portion thereof.
v. Copy, crawl, index, cache or store any information derived by EX.CO, or use any robot, spider, data gathering or extraction tool, or similar mechanisms, with respect to the Platform (including the Embedded Items or any content available therefrom) and/or any underlying technology;
vi. Edit, remove, obscure or alter any credits, watermarks, trade names, trademarks, logos, service marks or copyright notices set on Platform (including the Embedded Items or any content available therefrom), or remove or obscure the attribute/hyperlink to EX.CO and the Website (“Powered by EX.CO” or any other similar wording);
vii. Use the Platform (including the Embedded Items or any content available therefrom) and/or any underlying technology to introduce any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse, or trap door, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications.
D. We may edit, modify, disable access or remove any content from our Platform (including from the Embedded Items), for any reason, at any time and without prior notice. We also reserve the right to remove or disable access to any content or material posted, uploaded, published or incorporated in or to the Platform by any Customers that are repeated infringers of our policies.
E. If you choose to submit comments, ideas or feedback, including testimonials about your experience of our products and service, you agree that we are free to use them without any restriction or compensation to you.
5. Subscription Term, Renewal and Fees Payment
A. The Platform is provided on a subscription basis for the term specified in Customer’s Order Form, in accordance with the respective subscription plan (the “Subscription Plan“) purchased under such Order Form (the “Subscription Term“, and collectively “Subscription“).
B. Our Order Form may be completed and placed in various ways, among which, an online form or in-product screens or any other mutually agreed upon offline form delivered by Customer to EX.CO, including via mail, email or any other electronic or physical delivery mechanism (the “Order Form”). Such Order Form will list, at least, the Subscription Plan, Subscription Term and Subscription Fees.
C. In consideration for the granting of license to use the Platform, Customer shall pay EX.CO the applicable fees per the purchased Subscription Plan, as set forth in the applicable Order Form (the “Subscription Fees“). Unless indicated otherwise, Subscription Fees are stated in US dollars. Customer hereby authorizes EX.CO, either directly or through our payment processing service, to charge such Subscription Fees via Customer’s selected payment method upon due date. Unless expressly set forth herein, the Subscription Fees are non-cancelable and non-refundable. EX.CO reserves the right to change the Subscription Fees at any time, upon notice to Customer if such change may affect Customer’s existing subscription upon renewal. In the event of failure to collect the Subscription Fees owed by Customer, EX.CO may, in its sole discretion, retry to collect at a later time, and/or suspend or terminate the EX.CO Account, without notice.
D. The Subscription Fees are exclusive of any and all taxes (including without limitation, value, added taxes, sales tax, use tax, excise, goods and services tax, etc.), levies or duties, which may be imposed in respect of these Terms of Service and the subscription to the Platform (the “Taxes“), except for Taxes imposed on our income.
E. During the Subscription Term, Customer may upgrade its Subscription Plan by either: (i) upgrading to a higher type of Subscription Plan; (ii) adding add-on features and functionalities; or (iii) upgrading to a longer Subscription Term (collectively “Subscription Upgrades“). Upon a Subscription Upgrade, Customer will be billed for the applicable increased amount of Subscription Fees, at the then current rates, either: (1) prorated for the remainder of the then current Subscription Term; or (2) whenever the Subscription Term is being restarted due to the Subscription Upgrade, then the Subscription Fees already paid by Customer will be reduced from the new upgraded Subscription Fees, and the difference shall be due and payable by Customer upon the date on which the Subscription Upgrade was made.
F. We shall have the right, at our sole discretion, to offer subscription at different pricing and/or impose additional restrictions as for the upload, storage download and use of the Platform, including, without limitation, restriction on third party services, network traffic and bandwidth, size and/or length of content, quality and/or format of content, sources of content, volume of download time etc., if we believe that Customer have misused the Platform or otherwise used it in excessive manner compared to the anticipated standard use (set at our sole discretion).
G. As part of registering, or submitting billing information, to the Platform, Customer agrees to provide us with updated, accurate and complete billing information, and authorize EX.CO (either directly or through our affiliates, subsidiaries or other third parties) to charge, request and collect payment (or otherwise charge, refund or take any other billing actions) from Customer’s payment method or designated banking account, and to make any inquiries that we may consider necessary to validate Customer’s designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from Customer’s credit card company or banking account (e.g., updated expiry date or card number as may be provided to us by Customer’s credit card company).
H. In order to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription includes an automatic renewal option by default, according to which, unless Customer disables the auto-renewal option or cancels its subscription prior to its expiration, the subscription will automatically renew upon the end of the then applicable Subscription Term, for a renewal period equal to the greater of (i) a minimum of one (1) year or (ii) equal in time to the original Subscription Term (excluding extended periods) – and, unless otherwise notified to Customer, at the same price (subject to applicable Tax changes and excluding any discount or other promotional offer provided for the first Subscription Term). Accordingly, unless either Customer or EX.CO cancel the Subscription prior to its expiration, we will attempt to automatically charge Customer the applicable Subscription Fees upon or immediately prior to the expiration of the then applicable Subscription Term. If Customer wishes to avoid such auto-renewal, Customer shall cancel its Subscription at least sixty (60) days prior to its expiration, at any time through the Account settings or by contacting us. Except as expressly set forth in these Terms, in case a Customer cancels its Subscription, during a Subscription Term, the Subscription will not renew for an additional period, but Customer will not be refunded or credited for any unused period within the Subscription Term.
I. If any invoiced amount is not received by EX.CO by the due date, then without limiting our rights or remedies, those 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.
6. Billing and Refund
A. Your EX.CO Account is being charged for the annual subscription plan you’ve chosen. The subscription fee (plus any applicable taxes and other charges) will be charged to you at the beginning of the paying portion of your subscription.
B. Subscription fees are billed in advance for the subsequent year, as applicable.
C. If you cancel your Subscription, your cancellation takes effect on your next billing cycle. This means we won’t be able to refund you for any unused portion of your services.
7. Trial Service
A. We may grant a license to use a portion of our Platform, and subject to certain Usage Limits (as defined below), on a free, no-obligation trial version (“Trial Service”), until the earlier of (a) the end of the trial period for which you registered to use the Platform (as communicated to you, within the Platform or in an Order Form), or (b) the start date of any Subscription Plan ordered by you, or (c) termination by us in our sole discretion.
B. We reserve the right to modify, cancel and/or limit this Trial Service at any time and without liability or explanation to you.
8. Usage Limits
A. Both the Trial Service and the Subscription Plans are subject to certain usage limitations or limits (including, for example, the number of Embedded Items you can create, number of users you can generate, data and reports you can obtain etc.; collectively “Usage Limit(s)”).
B. The Usage Limits shall be as communicated to you, within the Platform or in an Order Form, and strictly as measured or calculated by EX.CO.
C. The Customer hereby acknowledges that by exceeding a Usage Limits, EX.CO may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual Usage Limit, you will execute an Order Form promptly upon our request, and/or pay any invoice for excess usage in accordance with the terms herein.
9. Proprietary Rights
A. All Proprietary Rights, titles and interests in and to the Platform, including compilations, digital conversions, magnetic translations, software and other materials related to the Platform are and shall at all times remain the sole and exclusive property of EX.CO, and are protected by applicable intellectual property laws and treaties.
B. All materials and contents (other than the Customer Content) displayed, made available, included, incorporated, uploaded, posted, published, contributed, performed or used on the Platform, which were created by EX.CO (together “EX.CO Content”), are:
i. The sole property of EX.CO and/or third parties, as applicable (including, without limitation, with respect to content from Getty Images as further detailed below);
ii. Protected by applicable intellectual property rights, including copyright laws; and
iii. May only be used in accordance with these Terms.
C. All data related to the Platform or collected through the Platform (with the exception of data collected through the Embedded Items) shall be the sole property of EX.CO. All trademarks, service marks, trade names, logos, and any other proprietary designations of EX.CO used herein, are trademarks or registered trademarks of EX.CO. Any other trademarks, service marks, trade names, logos and any other proprietary designations are the trademarks or registered trademarks of their respective parties. In addition, the arrangement and compilation of the Website (including, without limitation, the “look & feel”) are the exclusive property of EX.CO and are protected by copyright laws.
D. All data related to and collected through the use of Embedded Items (including through the use of tags, pixels, cookies, scripts or any other software components) shall be the sole property of Customer. Customer shall grant EX.CO an irrevocable, non-exclusive, worldwide, transferable, royalty-free, sub-licensable license to use the data in aggregated and de-identified form for EX.CO legitimate business purposes.
E. All rights not expressly granted to you in these Terms are reserved by EX.CO.
F. The Platform contains Customer Content and EX.CO Content. Such content is protected by copyrights, trademarks, service marks, patents, trade secrets or other Proprietary Rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any content accessed through the Platform.
10. Reporting Abuse
A. If you feel that any person or content is abusing our policies, or otherwise violating your rights, please contact us at: firstname.lastname@example.org. Be sure to identify the specific content and the reason you feel it should be removed.
11. Copyright Policy
A. In accordance with the Digital Millennium Copyright Act of 1998, we will respond expeditiously to claims of copyright infringement committed using the Platform that are reported to EX.CO’s Designated Copyright Agent, identified in the sample notice below.
B. If you are a copyright owner, or are authorized to act on behalf of one, and you believe in good faith that any material or content made available on or through the Platform has been used or exploited in a manner that infringes or violates any work or other intellectual property you own or control, please report the alleged copyright infringements taking place on or through the Platform by completing the following DMCA Notice of Alleged Infringement (the “Notice“) and delivering it to EX.CO’s Designated Copyright Agent. Upon receipt of the Notice as described below, we will take whatever action we deem appropriate, in our sole discretion, including removal of the challenged material from the Platform.
C. You can submit a Notice by:
i. Filling in and submitting our online form; or
ii. Providing the following information to our Designated Copyright Agent:
a. Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
i. the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link(s) shown on the Platform where such material may be found; and
ii. the reference or link to the material or activity that you claim to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link, including at a minimum, if applicable, the URL of the link(s) shown on the Platform where such reference or link may be found.
c. Provide your contact details – mailing address, telephone number, and, if available, email address.
d. Include both of the following statements in the body of the Notice: “I hereby state that I have a good faith belief that the disputed use of the copyrighted material or reference or link to such material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).” “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
e. Provide your full legal name and your electronic or physical signature. Deliver this Notice, with all items completed, to EX.CO’s Designated Copyright Agent:
i. Via email: email@example.com
ii. Via postal address:
Attn: Designated Copyright Agent
5 Aluf Kalman Magen St., Building A, 1st Floor, Tel Aviv 6107077, Israel
13. Links or Access to Third Party Content
Our Platform may contain links to third party websites, apps, services, offerings, materials, products, recommendations or other events or activities (“Third Party Content”) that are not owned or controlled by us (including, without limitation, Getty Content and any materials sourced from Giphy.com). We do not control, endorse or assume any responsibility for any such Third Party Content. If you access any Third Party Content from our Platform, you do so at your own risk and you agree that we will have no liability arising from your use of or access to any Third Party Content (“Third Party Disclaimer”).
14. Third Party Software
A. Portions of the Platform may include software that we license from third parties, which may include open source software or related components (“Third Party Software”) and is subject to the terms imposed by third party licensors. We do not make any warranty with respect to Third Party Software. For further information about Third Party Software, please visit here. You agree that your use of the Platform is subject to the applicable Third Party Software referred to therein, as updated from time to time.
B. EX.CO may hire other third parties to perform certain business-related functions such as processing payments on its behalf. EX.CO’s payment processing partner may request that the Customer will provide certain personal data (e.g., a valid government issued ID, your legal name, address, and date of birth) for the purpose of making payment through its financial institutions and complying with any federal and state laws and regulations. They may also communicate directly with the Customer regarding any issues with a payment. Any information provided to such third party will be confidential and only be used for the intended purpose.
15. Grant of License
A. When you create, publish, post, upload or contribute Customer Content to our Platform, such Customer Content belongs to you, and you agree to grant EX.CO a revocable, non-exclusive, worldwide, transferable, royalty-free, sub-licensable license to:
B. use, copy, store, publish, display, broadcast, make publicly available, exploit, link, distribute, reproduce, download, translate, abridge, amend, modify and adapt, create derivative works of and otherwise use the Customer Content, and to allow EX.CO to sub-license others to do so, solely for the purpose of providing the Platform to the Customer; including to identify and credit you as the creator of such Customer Content and use any information that you have provided during your registration to our Platform (for example your name, photograph and other information) in connection with the publication, distribution, advertising or promotion of the Customer Content, and to allow others to do so for any purpose. However, this does not require or obligate us to provide such credit, if any, to you, and we reserve the right to omit such credit or attribution at any time and in our sole discretion.
C. If you choose to make your Customer Content publicly available on our Platform, you hereby grant any person (including non-registered Users of our Platform) a non-exclusive, perpetual license to view, use or interact with your Customer Content (for example by voting, ranking or submitting commentary), and to allow others to share and embed your Customer Content
D. Notwithstanding the foregoing, nothing herein shall restrict EX.CO, during and after the termination of your EX.CO Account or your use of the Platform, to use aggregated and/or de-identified data derived from your Customer Content and any residual backup copies of your Content made in the ordinary course of EX.CO’s business, for its internal business purposes, including without limitation product improvement and marketing purposes. This shall not affect or derogate from your ownership rights over the Customer Content, as provided in these Terms.
E. This license also extends to any trusted third parties we work with to the extent necessary to provide the Platform to you.
16. Customer Representations
A. When you create, upload or contribute Customer Content to our Platform, you represent to us that:
i. Any information Customer provides EX.CO (including contact information, payment information or any reports that were or ought to be provided by Customer to EX.CO) will at all times be complete and accurate, and will be maintained up-to- date at all times.
ii. The Customer Content does not violate these Terms or contain any Objectionable Content.
iii. The Customer will not embed or promote the Embedded Items in association with any material or content (including any content displayed, made available on or linked from the Asset) which is, or which may be reasonably considered by EX.CO (at its sole discretion) as Objectionable Content.
iv. The Customer owns and operates the Asset, or is otherwise properly licensed to embed the Embedded Items and the Tag on the Asset, and the Customer is solely responsible to adopt any necessary measures to limit or restrict access to the Embedded Items, as required by applicable law and/or industry best practices, including with respect to the protection of minors or children;
v. The Customer shall not, directly or indirectly, infringe upon the rights of any third party, including proprietary, privacy or publicity rights, or any applicable laws or regulations;
vi. You have obtained all rights (including intellectual property rights) and approvals, necessary to grant EX.CO and other Users the licenses provided herein in connection with the Customer Content, and that your use of the Customer Content doesn’t conflict with any permits or licenses you may have granted to others.
vii. You are solely responsible for the Customer Content, and assume all risks associated with it, including any person’s reliance on its accuracy or claims that might stem from such Customer Content, as well as any liability, cost, expense or loss to EX.CO or to any third party resulting from such Customer Content.
viii. You agree to indemnify and hold EX.CO or anyone on its behalf (including its and its subsidiaries’ shareholders, directors, officers, employees, service providers, partners and agents) harmless from any liability, cost, damage and expense (including reasonable legal fees) caused or resulting from the Customer Content including any claim concerning violation or infringement of any proprietary rights, including without limitation, with respect to your use of the Getty Content in breach of these Terms.
ix. the Customer will not
a. Remove, alter, disable or circumvent any Tag or otherwise interfere with EX.CO’s ability to monitor User interaction in accordance with these Terms;
b. Engage in any action or practice that disparages or devalues EX.CO, the Embedded Items, the Platform, or the reliability, reputation or goodwill of any of the foregoing, or engage in any action or practice that might impede the performance reliability or quality of the Platform.
c. Place Embedded Items on Assets that utilize “zombie cookies” and/or “super-cookies”, and/or otherwise circumvent the User’s privacy collection preferences.
B. You understand that although we exercise reasonable efforts to preserve the materials stored on the Platform, you are solely responsible for creating back-ups of your Customer Content, and we shall not be responsible or liable in any way for the failure to preserve your Customer Content.
C. Without derogating from Customer’s representations and warranties under these Terms, Customer agrees that EX.CO, or anyone delegated on its behalf shall have the right, but not the obligation, to monitor Customer’s compliance with the Terms, in any form of technology chosen by EX.CO in its sole discretion. Customer shall have no claim or demand against EX.CO with respect to such monitoring.
D. EX.CO is not responsible for any Objectionable Content or information made available on or linked from any Asset or from the Embedded Items.
E. Customer confirms that it is aware that the some of the content made available through the Website or Platform may be user generated content (“UGC“) and that the sole responsibility for UGC lies with its various respective creators and/or uploaders. EX.CO does not warrant and cannot guarantee that the UGC will not be infringing in any way. It is hereby clarified that in case of infringement or other content issues that may arise with the UGC, Customer’s sole remedy with respect to such content shall be to submit a written complaint to EX.CO, which will review such complaint and, if applicable, remove such UGC in accordance with our Terms. EX.CO does not monitor, pre-screen or approve UGC (including any translations) made available on the Website, and EX.CO cannot guarantee its quality, accuracy or fitness for any purpose.
17. Getty Content
A. We may (but are not obligated to) allow you access to images, graphics, stills, designs, text, audios, videos and other material which was licensed to EX.CO by Getty Images (“Getty Content”), in connection with the creation of Embedded Items. Customer agree to abide by any additional terms or restrictions applicable to the use of Getty Content, as may be conveyed to you from time to time, including the Getty Images Premium Access Standard Terms and Conditions, as available here (as may be amended from time to time). You are fully responsible and assume any and all liability in connection with your use and embedding of Getty Content.
B. You agree that your use of Getty Content may give rise to third party rights (such as publicity or privacy rights), and that EX.CO does not provide any clearances and/or release(s) that may be required as a result of your use of Getty Content, including from any representative guild, union, professional organization, or other authorized representative, and you acknowledge that you shall be solely responsible for obtaining any and all necessary licenses, releases or waivers permitting you to use the name, likeness or other attribute of any individual or entity appearing in the Getty Content. You acknowledge that nothing herein shall be construed as granting ownership or copyright in the Getty Content to you. EX.CO reserves the right, at any time and in its sole discretion, to restrict or block your access to or use of Getty Content, and to remove any Getty Content, including from EX.CO Content which was embedded on third party websites, social networking platforms or applications.
C. When you incorporate Getty Content in an Embedded Item that you create, you will:
i. Include the following credit line adjacent to the Getty Content: “Contributor or Partner/Getty Images”, to the extent technically possible;
ii. Not use Getty Content in connection with Embedded Items which are designed to induce or involve the sale, license or other distribution of “on demand” products (including postcards, mugs, t-shirts, calendars, posters, electronic greeting cards, wallpaper or ringtones for mobile telephones and other items);
iii. Not use any Getty Content that contain NBA or WNBA images;
iv. If the Getty Content features a model or property in connection with a subject that would be unflattering or controversial to a reasonable person, you must accompany such use with a statement that indicates that: (i) the Getty Content is being used for illustrative purposes only; and (ii) any person depicted in the Getty Content, if any, is a model;
v. Not download, extract, republish, retransmit, reproduce or make any other use of Getty Content as a stand-alone file (meaning, separate of the Customer Content to which it is incorporated, such as for a screensaver), or make any derivate use of the Getty Content, except to the extent strictly enabled through the embedded and standard functionality of the Platform, or make Getty Content accessible in any other physical or electronic medium (such as fine art prints);
vi. Use the Getty Content and/or any underlying technology other than in compliance with all applicable federal, state, and local laws; and
vii. Cease use of Getty Content, and delete or remove any Getty Content from your Embedded Items and/or servers, upon notice from EX.CO.
19. EX.CO Analytics
A. EX.CO may provide Customer (in certain Subscription Plans according to the Order Form) access to its proprietary EX.CO Analytics platform that will allow the Customer to manage and view Embedded Items’ analytics and metrics (such as unique views, clicks, end- user engagements, etc.) (“EX.CO Analytics“). Notwithstanding the foregoing, you acknowledge that any information included in the EX.CO Analytics is subject to performance and traffic quality. Such information is not guaranteed to be accurate and is subject to adjustments and modifications resulting from, among other things, a final accounting, deductions, traffic performance or bad referrals, all as determined by EX.CO’s sole and absolute discretion. In no event and for no reason shall EX.CO be liable for any unavailability or inaccuracy, temporary or otherwise, of EX.CO Analytics.
20. Data Protection
A. EX.CO and Customer shall comply with the EX.CO Data Protection Addendum (“DPA”), which governs the Processing of Personal Data (as both terms are defined in the DPA), on Customer’s behalf, where such Personal Data is subject to the General Data Protection Regulation 2016/679 (the “GDPR”).
B. No Sensitive Data. Customer shall not submit to the Platform any data that is protected under a special legislation and requires a unique treatment, including, without limitations, (i) categories of data enumerated in Article 9(1) of the GDPR, or any similar legislation or regulation in other jurisdiction; (ii) any protected health information subject to the Health Insurance Portability and Accountability Act, as amended and supplemented, or any similar legislation in other jurisdiction; and (iii) credit, debit or other payment card data subject to PCI DSS or any other credit card schemes.
C. Customer shall provide its end users with a notice and obtain their consent, as required by applicable laws and regulations in connection with the collection, use and disclosure of Data through the use or access to the Embedded Items and storing and accessing of cookies or other information on the end users’ devices, including with respect to the use of any technological methods for the purpose of collecting such Data (including, without limitation, the Tag and/or any cookies), and including with respect to displaying interest-based or targeted content.
E. EX.CO may enable its partners (including its Customers) to use a data management platform that will enable them to manage their audience information and Data, pursuant to the terms of an Insertion Order or any other form of agreement entered between Customer and EX.CO. You acknowledge that you are solely responsible and assume all liability in connection with your use of any audience information and Data (whether through the data management platform or otherwise), including with respect to compliance with any applicable data protection laws or regulations.
G. Anonymous Information. Notwithstanding any other provision of these Terms, we may collect, use and publish Anonymous Information (defined below) relating to your use of the Platform, and disclose it for the purpose of providing, improving and publicizing our products and services, including the Platform, and for other business purposes. “Anonymous Information” means information which does not enable identification of an individual, such as aggregated and analytics information. EX.CO owns all Anonymous Information collected or obtained by EX.CO.
21. Customer Branded Content
A. In the event that EX.CO and the Customer have entered into a separate and valid Insertion Order or any other form of agreement, pursuant to which: (a) EX.CO shall create Embedded Items, whether on Customer’s behalf, or whether promoting a other third party product, brand or sponsor (“Branded Item”); and/or (b) Customer may create Embedded Items promoting a third party product, brand or sponsor (collectively, “Branded Content”) – then in addition to the terms contained therein, the Customer represents that it is solely responsible to provide any notice or disclosure with respect to the display or promotion of the Branded Content, as required under applicable laws, including with respect to notifying the users with regards to the commercial nature of the Branded Content.
A. In the event that EX.CO provides reports to the Customer, under an Insertion Order or any other form of agreement entered between Customer and EX.CO (“Reports”), such Reports shall be solely based on EX.CO’s tracking systems and will be considered as final and non-appealable proof for the purpose of computing the fees due and payable to any party pursuant to the terms of the Insertion Order or applicable agreement. Customer acknowledges that no other measurements or statistics of any kind will be accepted by EX.CO or have any effect on the fee due under that Insertion Order or applicable agreement.
B. Notwithstanding the foregoing, Customer acknowledges that any information included in EX.CO Analytics and in the Reports is subject to Customer’s traffic quality, performance and compliance with the terms and conditions of these Terms and are thereby subject to adjustments or modifications by EX.CO at all times. The information included in EX.CO Analytics and the Reports is not guaranteed to be accurate and is subject to adjustments resulting from, among other things, a final accounting, deductions, traffic performance or bad referrals, all as determined by EX.CO’s sole and absolute discretion. In no event and for no reason shall EX.CO be liable for any unavailability or inaccuracy, temporary or otherwise, of EX.CO Analytics and/or of the Reports.
A. During the Subscription Term, and for a period of three (3) years thereafter, each party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. During such period, each party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, to prevent the disclosure of the Disclosing Party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section.
B. Upon termination or expiration of the subscription, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s discretion) all materials containing Confidential Information.
24. Term and Termination
A. These Terms are in full force and effect, commencing upon the Effective Date, until the end of the Subscription Plan, either paid or unpaid, unless terminated otherwise in accordance with these Terms.
B. EX.CO may terminate or suspend the licenses provided herein at any time and cease providing you access to our Platform in its sole discretion (“Termination for Convenience“) or if: (i) you violate these Terms; (ii) infringe or accused of infringing the intellectual property or other rights of others; (iii) violate any terms, restrictions or limitations specified in any additional agreement(s) you may enter into with EX.CO or that may apply to your specific use of the Platform; or (iv) otherwise create risk or possible legal exposure for us(“Termination for Cause“).
C. Termination for Cause will be without any compensation or liability of EX.CO and shall not relieve Customer of any obligations arising or accruing prior to such termination or limit any liability which Customer otherwise may have to EX.CO, including without limitation any indemnification obligations contained herein.
D. Termination for Convenience will be subject to a refund that will be calculated based on a prorated basis per the portion of the remaining Subscription Term and the Subscription Fees.
E. Customer may terminate its Subscription to the Platform by cancelling the Subscription or deleting the EX.CO Account. Such termination shall not derogate from Customer’s obligation to pay applicable Subscription Fees until the end of the then current Subscription Term without any refund for pre-paid Subscription Fees.
A. If anyone brings a claim against us related to Customer’s use of Platform, Customer will indemnify and hold us (including our and our subsidiaries’ shareholders, directors, officers, employees, partners and agents) harmless from and against all damages, losses, costs and expenses of any kind (including reasonable legal fees and costs) related to such claim.
B. Customer shall indemnify and hold EX.CO (including its and its subsidiaries’ shareholders, directors, officers, employees, partners, advertisers and agents) harmless from and against all damages, losses, costs and expenses of any kind (including reasonable legal fees and costs, collectively “Losses“) resulting from, arising out of, or related to any claim against EX.CO related to: (i) the Asset or any content made available thereto; (ii) the Customer’s actions or omissions (including any claim concerning violation or infringement of any Proprietary Rights); (iii) Customer’s breach or alleged breach of any of Customer’s representations, warranties or agreements set forth herein (including with respect to any Customer Content uploaded by Customer); or (iv) the embedment of the Embedded Items on the Asset.
C. Subject to the UGC Disclaimer and the Third Party Disclaimer, EX.CO shall defend Customer from and against any and all Losses resulting from, arising out of or related to third party claims alleging that Customer’s authorized use of the Platform (in accordance with the terms herein) infringes or constitutes misappropriation of any third party’s copyright, trademark or registered US patent (“IP Claims”), and EX.CO will indemnify Customer and hold Customer harmless against any Losses finally awarded on such IP Claim by a court of competent jurisdiction or agreed to via settlement we agreed upon, including reasonable attorneys’ fees.
D. EX.CO’s indemnity obligations under this Section shall not apply if: (i) the Platform (or any portion thereof) was modified by Customer or any third party, but solely to the extent the IP Claim would have been avoided by not doing such modification; (ii) if the Platform is used in combination with any other service, device, software or products, including, without limitation, Third Party Software , but solely to the extent that such IP Claim would have been avoided without such combination; and/or (ii) any IP Claim arising or related to, the Customer Content or to any events giving rise to Customer’s indemnity obligations under this Section. Without derogating from the foregoing defense and indemnification obligation, if EX.CO believes that the Platform, or any part thereof, may so infringe, then EX.CO may in its sole discretion: (i) obtain (at no additional cost to you) the right to continue to use the Platform; (ii) replace or modify the allegedly infringing part of the Platform so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if EX.CO determines that the foregoing remedies are not reasonably available, then EX.CO may require that use of the (allegedly) infringing Platform (or part thereof) shall cease and in such an event, Customer shall receive a prorated refund of any Subscription Fees paid for the unused portion of the Subscription Term. THIS SECTION STATES EX.CO’S SOLE AND ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY EX.CO AND/OR ITS SERVICE AND UNDERLYING TECHNOLOGY.
E. The parties agree that in claiming any indemnification hereunder, the party claiming indemnification (the “Indemnified Party”) shall (i) promptly notify the other party (the “Indemnifying Party”) in writing of the claim; (ii) grant the Indemnifying Party sole control over the defense (except that the Indemnified Party may, at its own expense, assist in the defense); and (iii) provide the Indemnifying Party, at the Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense of the claim. In no event shall the Indemnifying Party enter into any settlement or agree to any disposition of the indemnified claim(s), without the prior written consent of the Indemnified Party.
26. Limitations on Liabilities
A. To the maximum extent permitted by law, EX.CO (including its and its subsidiaries’ shareholders, directors, officers, employees, and agents) shall not be liable for any personal injury, indirect, incidental, special, exemplary, consequential or punitive damages, or any loss of profits or revenues (regardless of whether we were advised of the possibility of such damages), whether incurred directly or indirectly, or any loss of data, use, good-will, or other intangible losses.
B. In no event shall EX.CO’s (including its and its subsidiaries’ shareholders, directors, officers, employees, and agents) aggregate liability for all claims relating to the Platform exceed the fees paid to EX.CO by Customer for the use of the Platform in the six (6) month period preceding the events giving rise to the liability. Applicable laws may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, our liability will be limited to the fullest extent permitted by applicable laws.
27. Warranty Disclaimer
A. The Platform and all included content (including any EX.CO Content and/or the Embedded Items) are provided on an “AS IS” and “AS AVAILABLE” basis without warranty of any kind. We specifically disclaim any and all warranties, express or implied, and conditions of merchantability, title, fitness for a particular purpose, and non-infringement. We do not guarantee that the Platform (including the Embedded Items) and all included content will always be complete, accurate, safe, secure, bug-free or error-free, or that the Platform and all included content will always function without disruptions, delays or imperfections. We may change, limit, suspend or discontinue the Platform (or any part thereof, including the EX.CO Content, products and/or services) at any time, including the availability of any feature or database, without notice or liability.
B. We do not control or direct Users’ actions on our Platform and are not responsible for the content or information Users transmit or publish on or through our Platform.
C. Although we reserve the right to do so, we do not regularly monitor, pre-screen or approve Customer Content. EX.CO accepts no responsibility with regards to any Customer Content. Note that any content items on the Platform that include polls, voting, etc. are not intended to be of a scientific sample or research, and should not be relied upon as such. Before you act on information that you’ve found on our Platform, you should confirm any facts that are important to your decision
D. To the fullest extent permitted by law, we disclaim any responsibility or liability for the accuracy, reliability, availability, completeness, operability of the Platform or to any content (including EX.CO Content or Customer Content) included in the Platform.
E. You expressly acknowledge and agree that the use of the Platform is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and efforts is solely with you.
A. These Terms and your use of the Platform shall be governed by the laws of the State of New York, without respect to its conflict of laws principles. You and EX.CO agree to submit to the personal jurisdiction of competent courts located in New York County, New York, U.S.A, for any actions not subject to the Arbitration section below.
Arbitration & class action waiver
B. For any dispute, claim or controversy arising out of or in relation to these Terms or to the breach, termination, enforcement, interpretation or validity thereof, or to your access or use of the Platform (together “Dispute”), you agree to first contact us and attempt to resolve the Dispute with us informally. If EX.CO has not been able to resolve the Dispute with you informally, you and we agree to resolve any Dispute by binding individual arbitration. Any provision of applicable laws notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. The arbitration shall be conducted in New York County, New York, U.S.A. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and EX.CO submit to the arbitrator, unless the arbitrator determines that a hearing is necessary.
C. Nothing in this section shall prevent either party from seeking injunctive or other equitable relief from the courts to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights and for matters related to data security or unauthorized access to the Platform. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims.
D. You agree that, by entering into these Terms, you and EX.CO are each waiving the right to a trial by jury or to participate as a class representative or class member on any class claim you may have against us including any right to class arbitration or any consolidation of individual arbitrations. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person, if we are a party to the proceeding.
A. We may revise these Terms, from time to time, in our sole discretion and the most current version will always be posted on our Website (as reflected in the “Last Revised” heading). We encourage you to review these Terms regularly for any changes. By continuing to access or use the Platform after any revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new Terms, please stop accessing or using the Platform.
B. Customer agrees that EX.CO may use the Customer’s name and logo for advertising and publicity purposes and may refer to the existence of their relationship on the Website and in press releases, advertising, or marketing materials distributed to prospective partners, and for that purpose Customer hereby grants EX.CO an irrevocable, perpetual, worldwide license to use Customer’s name, logo, label or any other trademarks or symbols associated with the Customer
C. We reserve the right to determine the form and means of providing notifications to you, and you agree to receive legal notices electronically if we so choose.
Third Party Beneficiaries
E. EX.CO’s subcontractors and third party service providers are intended third party beneficiaries of these Terms and upon your acceptance of these Terms EX.CO’s subcontractors and third party service providers will have the right to enforce these Terms as related to the licenses granted herein against you as third party beneficiaries thereof.
Severability and Entire Agreement
G. EX.CO shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
H. These Terms are personal to you, and are not assignable, transferable or sub-licensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
I. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
J. Either party’s failure to enforce any part of these Terms shall not constitute a waiver of such party’s right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instance does not mean that either party waives compliance in the future. In order for any waiver of compliance to be binding, a party must provide the other party with written notice of such waiver through one of its authorized representatives.
K. You agree to comply with the export laws and regulations of the United States, Israel and any other country with jurisdiction over the Platform, and that you shall not export or re-export, directly or indirectly, the Platform or any technical information disclosed hereunder to any destination prohibited or restricted by applicable export control regulations.
L. The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation.
M. We value hearing from our users and welcome your feedback. You may contact us anytime at the following email address: firstname.lastname@example.org.