Yodelpop Terms of Service
1. DEFINITIONS
* “Account” means the online account created by or on behalf of Customer to access the Services.
* "Ad(s)" means Customer’s advertisements, in any form, including without limitation display, video, email, or TV.
* “Applicable Law(s)” means any applicable federal, state, and foreign laws or regulations or any industry self-regulatory rules or guidelines that relate to a party’s rights and obligations under this Agreement .
* “Authorized Users” mean Customer’s employees, contractors, or marketing agency employees who are authorized by Customer to access the Account and use the Services on Customer’s behalf, and have agreed to comply with the terms of this Agreement.
* “Customer Content” means Ads, background images, trademarks, logos, company names, fonts, hex codes, images, graphics, text, audio, video files, product feeds, and any other content that is provided by Customer or obtained or created by Yodelpop on Customer’s behalf for use with the Services.
* “Customer CRM Data” means any clear (i.e., plain text, unhashed) email addresses, names, titles, contact history, order history, or other CRM data about End Users that is provided by Customer, obtained through third party integrations with the Services, or obtained by Yodelpop on Customer’s behalf in connection with the Services. Customer CRM Data does not include Service Data or Performance Reports.
* “Customer Sites” mean all websites, and mobile and tablet applications owned or controlled by Customer through which the Services are integrated and Service Data or Customer CRM Data, as applicable, is collected.
* “Documentation” means Yodelpop’s reference documents, support service guidelines, policies, and technical material relating to the Services that are made available to Customer (whether by email, links to websites, screen or click-through display, Account dashboards, or any other method)
* “End Users” mean any natural persons accessing, using, or otherwise interacting with Customer Sites or Customer Content, or associated with Customer CRM Data.
* "European Territories" mean the European Economic Area, United Kingdom and Switzerland.
* “Fees” are defined in Section 4.1.
* “Network” means a group of companies that Yodelpop has partnered with to provide the Services.
* "Yodelpop Materials” means Yodelpop’s Technology, Documentation, websites, dashboards, visual interfaces, graphics, design, templates, compilation, computer code, any data (including contact data) provided by Yodelpop, Performance Reports, and all other elements of the Services, including any enhancements and modifications thereto and derivative works thereof.
* “Order Form” means any form, invoice, paper or digital record within Customer’s Account dashboard that sets forth the Services selected by Customer, Term, Fees, credits and other details, and incorporates this Agreement by reference.
* “Package” means the combinations of Services offered by Yodelpop under this Agreement.
* “Performance Reports” means all reporting, insights, analytics and other information made available by Yodelpop to Customer through the Services that relate to Customer's Ads, campaigns and use of the Services, as reported on an aggregated basis.
* “Personal Data” is defined by the Applicable Law of each End User’s residence.
* “Sensitive Personal Information” means Personal Data that reveals (i) an End User’s social security, driver's license, state identification card, or passport number; (ii) an End User’s account log-In, financial account, debit card, or credit card number in combination with any required security or access code, password, or credentials allowing access to an account; (iii) an End User’s precise geolocation; (iv) an End User’s racial or ethnic origin, religious or philosophical beliefs, union membership, citizenship or citizenship status; (v) the contents of an End User’s mail, email or text messages; (vi) an End User’s genetic data; (vii) tbiometric information for the purpose of uniquely identifying an End User; (viii) an End User’s health; (ix) an End User’s sex life or sexual orientation; or (x) any data similar to the above protected under Applicable Law.
* “Service Addendum(a)” means the supplemental terms and conditions, incorporated by reference into this Agreement, which govern the use of specific Services.
* “Service Data” means data that is collected by Yodelpop from End Users using Technology on Customer Sites, including any data obtained from third-parties while providing the Services. Service Data does not include Customer CRM Data. “Services” means the Yodelpop advertising, marketing, sales, analytics, web development, APIs, integrations and other service offerings made available to Customer under this Agreement.
* “Technology” means the Yodelpop proprietary technology used to provide the Services, including pixels, script, code, tags, application programming interfaces (“APIs”), dashboards and/or software development kits (“SDKs”).
* “Term” has the meaning set forth in Customer’s Order Form.
2. YODELPOP SERVICES
2.1 Access and Use. Subject to Customer’s payment of all applicable Fees and compliance with this Agreement, Yodelpop hereby grants Customer during the Term a personal, non-exclusive, non-transferable, non-sublicensable, revocable (as provided herein) right to access and use the Yodelpop Materials and Services set forth in the Order Form.
2.2 Technical Requirements. Prior to commencing the Services, Customer will be required to comply with data collection notice requirements communicated by Yodelpop to Customer, such as implementing Technology on Customer Sites
2.3 Use Restrictions. Except as permitted through the Services (or otherwise by Yodelpop in writing), Customer shall not, and shall not permit a third party, to:
1. use the Services or Yodelpop Materials for any purpose other than for Customer’s own internal business purpose;
2. license, sell, transfer, assign, distribute, host, rent, lease, or otherwise commercially exploit the Services or Yodelpop Materials;
3. modify, prepare derivative works of, disassemble, decompile or reverse engineer any part of the Services or Yodelpop Materials, use unauthorized APIs, create more Accounts than necessary, or attempt to gain access in any way to data outside the scope of the Services;
4. remove any proprietary notices from the Services or Yodelpop Materials;
5. deliver or introduce any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Services or Yodelpop Materials; or
6. use the Services or Yodelpop Materials in any manner or for any purpose that infringes, misappropriates, or other otherwise violates any other party’s rights, this Agreement, or Applicable Law.
2.4 Beta Versions and Trials. Yodelpop may make new features and/or functionality related to the Services available to Customer as a beta, pilot, test or similar description (each, a “Beta Version”), or offer a new or existing Customer a trial of the Services for a limited evaluation period (each, a “Trial”). Customer’s use of Beta Versions and Trials are governed by this Agreement, except that they are provided by Yodelpop “AS-IS” and excluded from Yodelpop’s warranties in Section 7.2 and indemnities in Section 8.2. Yodelpop may discontinue or terminate Beta Versions or Trials at any time in its sole discretion and may choose not to make Beta Versions generally available.
3. CUSTOMER RESPONSIBILITIES
3.1 General. Customer is responsible for its use, and Authorized Users’ use, of the Services and Yodelpop Materials and all activity occurring within the Account and shall comply at all times with this Agreement, including the Documentation.
3.2 Accounts.
1. Account Set-Up. Customer is responsible for ensuring that all information used to set-up and maintain an Account is up-to-date, complete and accurate during the Term, including without limitation contact information, billing and payment information, campaign budgets and selections relating to the Services.
2. Passwords and Log-Ins. Account passwords and log-in details may only be used by and for Customer, and may not be shared with any other person or entity, other than Authorized Users. Customer will secure all Account passwords and log-in details and promptly notify Yodelpop of any breach or suspected breach, misuse or unauthorized access to the Account.
3.3 Customer Content. Customer is responsible for all Customer Content posted or published on or through the Services and on Customer Sites. During the Term, Customer grants Yodelpop a non-exclusive, worldwide, royalty-free license to use, modify, display, distribute, reproduce, store and publish Customer Content on and in connection with Yodelpop’s provision of Services to Customer. Customer shall provide Yodelpop with Customer Content in the form and manner specified by Yodelpop or authorize Yodelpop to retrieve it directly from Customer Sites or through third party integrations.
3.4 Use of Trademarks. During the Term, Customer grants Yodelpop a limited right to use Customer’s trademarks, logos, and names, in the form and manner approved by Customer, on Yodelpop’s websites, sales presentations, and other marketing materials, solely to identify Customer as a customer of Yodelpop.
4. PAYMENT TERMS
4.1 Fees. Customer shall pay the following fees (“Fees”):
1. Fees for Packages. Fees for Packages will be set forth in Customer’s Order Form.
2. Promotions; Credits. Yodelpop may offer Customer certain promotions, discounts, general credits, ad or media credits or other special offers that will be reflected in Customer’s Order Form . There will be no refunds or credits for partial terms, downgrades, or unused credits or features.
3. Overage Fees. If Customer exceeds any usage limits specified in the Order Form, Insertion Order, Account or Documentation, Yodelpop reserves the right to upgrade Customer to the next tier Package or pricing corresponding with Customer’s usage or eligibility for the remainder of the Term, or bill Customer for the Fees associated with the overage, in each case using the billing information associated with the Account.
4. Changes in Fees. Yodelpop reserves the right to change its Fees and to institute new charges at the end of the Initial Term or any Renewal Term. Customer’s use of the Services following any such notification constitutes its acceptance of new or increased Fees.
4.2 Payment Terms. Unless otherwise agreed by the parties in writing, payment terms will be specified in the Order Form or Insertion Order and billed as follows:
1. Integrations and Memberships. All Integrations (excluding any “Free” Integrations or promotions) are billed and paid in advance and are non-refundable. Integrations will automatically renew for successive Terms of the same duration (e.g., a 12-month Membership or Integration will automatically renew for another 12-months, a monthly Integration will renew for another month), and Customer will be charged the applicable Fees on each anniversary of purchase, unless canceled or downgraded in accordance with Section 10.2 or 10.3. Customer agrees to keep valid payment method information (for example, credit card or PayPal account information) on file in the Account always, and Yodelpop will pre-charge Customer as described in the Order Form. Customer authorizes Yodelpop to charge such amounts using the valid payment details provided by Customer. Customer understands that all funds transferred to Yodelpop become the property of Yodelpop upon transfer to compensate Yodelpop for costs involved in delivering the Integration, including creating and maintaining, and providing access to the Integration. If Customer suspends use of the Integration, cancels the Account, or terminates this Agreement, it may request reimbursement in the amount of the prepaid funds not attributed to Integration activity within 180 days after Integration activity is paused, the Account is canceled or this Agreement is terminated; provided that any such reimbursement is at Yodelpop’s sole discretion.
2. Other services: All payment and billing terms are described in the Order Form.
4.3 Taxes. Fees are quoted exclusive of any Taxes (defined below). Customer is responsible for all sales, use, value added, withholding, and any other similar taxes imposed by federal, state, local, or foreign governmental entities on the transactions contemplated by this Agreement (“Taxes”), excluding taxes based solely upon Yodelpop’s net income, even if Yodelpop did not collect and remit such Taxes on Customer’s behalf. If Yodelpop is assessed fines, penalties or payments for non-payment of Taxes, then Yodelpop will be entitled to full reimbursement of such amounts by Customer.
4.4 Non-Payment; Late Payment.
1. Suspension or Termination. Yodelpop may suspend or terminate Customer and its Authorized Users’ access to the Services for failure to pay any Fees within the time frame specified in the Order Form . Termination or suspension will not relieve Customer of its obligation to pay Fees pursuant to this Agreement.
1. Interest. Without limiting Yodelpop’s remedies, Yodelpop may charge interest on overdue Fees from the due date up to the date of actual payment at a monthly rate of 1.5% or the highest rate permitted by Applicable Law, whichever is less. Customer will reimburse Yodelpop for expenses and recovery costs incurred in collecting any past due Fees, including reasonable attorneys’ fees and costs of collection.
1. Set-Off. Yodelpop may set off any liability owed to Customer against any liability for which Yodelpop reasonably determines Customer is liable to Yodelpop, related to Services under this Agreement.
2. Credit Risk. If Customer develops credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, declaration of insolvency or bankruptcy) or Yodelpop otherwise designates Customer as a credit risk, Yodelpop reserves the right to modify Customer’s payment terms.
4.5 Billing Disputes. Any claims or disputes relating to Fees under this Agreement must be sent to Yodelpop in writing withinthirty (30) days of the billing date or will be waived by Customer.
5. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
5.1 Yodelpop Property.
1. General. Yodelpop owns or controls all right, title and interest in and to the Services, Service Data, Performance Reports, and Yodelpop Materials, including all intellectual property rights contained therein. Customer’s right to use the Services and Yodelpop Materials are strictly limited to those rights expressly granted in this Agreement and all other rights are reserved to Yodelpop. Customer is permitted to use Performance Reports for its own internal business purposes, including after expiration or termination of this Agreement.
5.2 Customer Property. Customer owns or controls all rights in and to Customer Content and Customer CRM Data (including any reporting provided by Yodelpop that contains Customer CRM Data in a personally identifiable manner). Yodelpop will not use Customer Content or Customer CRM Data for any purpose other than to: (a) provide Services to Customer as provided in this Agreement and (b) use, publish, display and distribute de-identified, aggregated, non-personally identifiable information derived from such content and data for purposes of improving Yodelpop’s Services, benchmarking and reporting.
5.3 Feedback. The parties agree that any comments, ideas, suggestions or feedback provided by Customer or Authorized Users to Yodelpop with regard to the Services may be used by Yodelpop to develop and improve the Services, Yodelpop Materials, new products and/or new services without compensation, notice or obligation to such Customer or Authorized User.
5.4 Third-Party Trademarks. Any third-party trademarks, product or company names referenced in the Services or Yodelpop Materials are the property of their respective owners and may not be used without the prior written permission of the owner.
5.5 Third-Party Integrations. Customer may choose to use features within the Services that involve integrations with third-party platforms. Use of third-party platforms may be subject to Customer's agreement with the relevant provider and/or additional terms and may enable data exchange between the Services and applicable third-party platforms. Yodelpop does not control and has no liability for third-party platforms, including their security, functionality, operation, availability, or interoperability or how the third-party platform uses data received from the Services. "Third-party platform" means any platform, add-on, service or product provided by any third-party that Customer elects to integrate or enable for use with the Services.
6. DATA PRIVACY OBLIGATIONS
6.1 General Obligations With Respect to End User Privacy. Customer is responsible for all obligations, consents, notices and/or permissions with respect to End Users related to the use of the Services and Yodelpop Technology on any Customer Sites, and which may be required under any Applicable Laws, including, without limitation, the General Data Protection Regulation (EU) 2016/679 (GDPR), U.S. state privacy and data protections acts such as the California Consumer Privacy Act of 2018 and the California Privacy Rights Act of 2020 (CPRA), and the Children’s Online Privacy Protection Act (COPPA).
6.2 Consent, Privacy Notice and Notice of Collection Obligations for Customers. Customer Sites must include the following:
1. Consent Mechanism. Where the Customer Sites attract End Users from European Territories, Customer must deploy a consent and transparency mechanism (“Consent Mechanism”) on Customer Sites to obtain End User consent to Yodelpop (and its Network) placing cookies or similar tracking technologies on End Users' browsers. The foregoing obligations shall also apply where the Customer Sites attract visitors from other jurisdictions that require Consent Mechanisms with respect to the placement of or access to cookies or similar tracking technologies on visitors’ devices and/or specific data transfer mechanisms under Applicable Law.
2. Privacy Notice.
An online privacy notice that:
1. Discloses the categories of data collected by Yodelpop, and the purposes for which data is collected and used by Yodelpop. Yodelpop’s Service Privacy Notice (https://www.yodelpop.com/privacy-policy) identifies this information and Customer may provide a link to Yodelpop’s privacy notice in Customer’s privacy notice; and
2. Includes instructions on how End Users can control the collection of data and opt-out from receiving marketing
3. Includes instructions on how End Users how they may opt-out from receiving marketing
6.3 Children. Customer is expressly prohibited from:
1. Placing Technology (e.g., Yodelpop pixel) on any Customer Sites that are directed (in whole or in part) to children under the age of sixteen (16);
2. Permitting Yodelpop to collect information from a device or browser in the possession of any child under the age of sixteen (16); and
3. Knowingly sending Yodelpop any information derived from a device or browser in the possession of any child under the age of sixteen (16).
6.4 Sensitive Personal Information. Customer is expressly prohibited from:
1. Providing Yodelpop with or permitting Yodelpop to collect any Sensitive Personal Information; and
2. Configuring the Yodelpop Technology to collect Sensitive Personal Information.
6.5 Suspension of Services. In addition to all other rights and remedies under this Agreement, Yodelpop reserves the right to suspend the Services for Customer’s failure to comply with this Section 6, unless and until such failure is remediated.
7. REPRESENTATIONS AND WARRANTIES
7.1 By Customer. Customer represents and warrants to Yodelpop that: (a) it has the right to enter into this Agreement, grant all rights granted and perform its obligations under this Agreement; (b) Customer Content and Customer Sites do not include and do not give access via hyperlinks to any property containing materials that are: obscene, infringe or misappropriate third party rights, or contrary to this Agreement (including the Documentation) or Applicable Law; (c) Customer Content, Customer Sites, and Customer’s use of the Services will comply at all times with this Agreement, the Documentation and Applicable Law; (d) its collection, transfer, use and disclosure of all data under this Agreement will not violate the rights of any third-party (including any End Users), Applicable Law or any statements in Customer’s online privacy notice; and (e) Customer will not attempt to identify or re-identify any data Yodelpop provides to Customer in an anonymous or aggregated fashion.
7.2 By Yodelpop. Yodelpop represents that: (a) it has the right to enter this Agreement, grant all rights granted and perform its obligations under this Agreement; and (b) the Services will be provided substantially in accordance with the Documentation. For any breach of this Section 7.2, Yodelpop’s sole liability and Customer’s sole remedy will be re-performance of the Services by Yodelpop or to exercise its termination rights under Section 10.3.
8. INDEMNIFICATION
8.1 Customer Indemnification. Customer will defend, indemnify, and hold harmless Yodelpop and its officers, directors, employees and subsidiaries from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) from any claim or demand by a third-party arising out of: (a) Customer’s use of the Services and Yodelpop Materials; (b) Customer’s breach of this Agreement; (c) Customer’s infringement, misappropriation or violation of Applicable Law or any third party rights (including intellectual property, property, privacy or publicity rights); and/or (d) Customer Content, Customer Sites, Customer CRM Data, or any other data provided by Customer in connection with the Services.
8.2 Yodelpop Indemnification. Yodelpop will defend, indemnify, and hold harmless Customer and its officers, directors, employees, and subsidiaries from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) from any claim or demand by a third-party that the Services or Yodelpop Materials, used in accordance with this Agreement, violates, infringes, and/or misappropriate any copyright, trade secret, U.S. patent or trademark rights. Yodelpop will not have any liability under this Section 8.2 arising from: (a) unauthorized use or modifications made to the Services or Yodelpop Materials; or (b) the combination of the Services or Yodelpop Materials with any third-party software, process, or service not provided by Yodelpop. If Yodelpop reasonably believes that the Services or Yodelpop Materials could become subject to a third party claim of infringement, Yodelpop may in its sole discretion: (i) modify the Services or Yodelpop Materials so that it no longer infringes or misappropriates; (ii) obtain a license for Customer’s continued use of the affected Services or Yodelpop Materials in accordance with this Agreement, or (iii) terminate the affected Services or this Agreement upon 30 days’ prior written notice and provide a refund of any pre-paid fees applicable to any period following the effective date of termination. Yodelpop’s indemnification obligations in this Section 8.2 will be Yodelpop’s sole liability and Customer’s sole remedy for any claims that the Services or Yodelpop Materials violate, infringe, or misappropriate any third-party intellectual property rights.
8.3 Indemnification Process. The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability or pay any amount (not covered by the indemnifying party) requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed; and (b) the indemnified party may join in the defense with its own counsel at its own expense.
9. LIMITATIONS ON LIABILITY
9.1 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, Yodelpop EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND ABOUT THE SERVICES AND Yodelpop MATERIALS WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM AND: (A) Yodelpop EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NON- INFRINGEMENT; (B) Yodelpop DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED; AND (C) Yodelpop MAKES NO PROMISES REGARDING THE RESULTS CUSTOMER WILL OBTAIN THROUGH THE USE OF THE SERVICES.
9.2 Yodelpop WILL HAVE NO LIABILITY TO CUSTOMER IN CONNECTION WITH (A) CUSTOMER’S FAILURE TO PROVIDE NOTICES TO, OR OBTAIN CONSENTS FROM, ITS END USERS REGARDING ITS DATA COLLECTION AND PRIVACY NOTICE PRACTICES OR THE SERVICES DESCRIBED HEREIN WHICH ARE REQUIRED BY APPLICABLE LAW; (B) CUSTOMER’S COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT; OR (C) DATA SECURITY OR DATA USE IF Yodelpop ACTS IN ACCORDANCE WITH CUSTOMER’S INSTRUCTIONS.
9.3 Disclaimer of Damages. Yodelpop WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS (WHETHER DIRECT OR INDIRECT) OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF Yodelpop IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.4 Cap on Liability. UNDER NO CIRCUMSTANCES WILL Yodelpop’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO Yodelpop UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.5 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO CUSTOMER, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. TERM AND TERMINATION
10.1 Term and Renewal. This Agreement will remain in full force and effect while Customer uses the Services. The “Initial Term” of each Package will be set forth in Customer’s Order Form and, unless terminated in accordance with this Agreement, will automatically renew for additional, successive terms of the same duration (each a “Renewal Term” and together with the “Initial Term”, the “Term”). The renewal pricing set forth in Customer’s Order Form will apply, subject to any adjustment as specified in Section 5.1. If renewal pricing is not included in Customer’s Order Form, then Yodelpop’s standard pricing available on the date of renewal will apply.
10.2 Termination and Downgrades. Customer may terminate (cancel) or downgrade a Package by providing Yodelpop written notice to info@Yodelpop.com as follows:
1. Packages for Terms of 6-months or more. At least thirty (30) days’ prior to the end of the then-current Term.
2. Packages for Month-to-Month Terms. At least seventy-two (72) hours prior to the end of the then-current month Term.
All terminations (cancellations) and downgrades will take effect at the end of the then-current Term. Customer will not be entitled to a refund of pre-paid Fees.
10.3 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Services: (a) immediately, if the other party fails to cure a material breach within 30 days’ of receiving written notice from the non-breaching party, or (b) immediately, to the extent permissible under Applicable Law, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated by Customer prior to the end of the Term.
10.4 Suspension for Prohibited Acts. Yodelpop may suspend Customer and its Authorized Users’ access to any or all Services, in whole or in part, without notice, if: (a) Yodelpop receives a claim, complaint, or notice that Customer Content or Customer Sites violate, infringe or misappropriate any third-party rights (e.g., a DMCA notice); or (b) Customer or its Authorized Users use the Services or Yodelpop Materials in violation of Applicable Law.
10.5 Yodelpop’s Changes to the Services. Yodelpop reserves the right to modify the Services or discontinue temporarily or permanently, some or all of the Services, with respect to any or all Customers, at any time without notice. Customer agrees that Yodelpop will not be liable to Customer for any modification, or discontinuance of the Services, although if Customer has selected a paid Package or other prepaid Services, and Yodelpop discontinues the Services, Yodelpop may, in its sole discretion, provide Customer with a credit, refund, discount or other form of consideration.
10.6 Post-Termination Obligations. Upon termination of this Agreement for any reason:
1. Yodelpop will immediately cease providing the Services to Customer and its Authorized Users.
2. Customer will:
1. within thirty (30) days, pay to Yodelpop any Fees that have accrued prior to the effective date of termination;
2. immediately remove the Technology (e.g. Yodelpop pixel) from Customer Sites, and in no event later than thirty (30) days from the date of termination. Yodelpop will not be liable for any damages (or any benefit to Yodelpop) resulting from Customer’s failure to remove the Technology; and
3. immediately disable any integrations with third party services that facilitate transfer of Customer CRM Data to the Services.
Following termination of this Agreement, Yodelpop reserves the right to permanently delete all Customer CRM Data stored on the Yodelpop Services without further notice to Customer.
10.7 Survival. The following Sections will survive expiration or termination of this Agreement: Sections 1, 4 -13 (as applicable).
11. CONFIDENTIALITY
Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that: (a) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (b) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (c) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (d) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (i) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (ii) not disclose the Disclosing Party’s Confidential Information to a third-party unless the third-party must access the Confidential Information to perform in accordance with this Agreement and the third-party has agreed to confidentiality terms no less protective than those set forth in this Section 11; and (iii) maintain the confidentiality of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by Applicable Law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by Applicable Law) of such requirement to the Disclosing Party before such disclosure and reasonably assist the Disclosing Party, at Disclosing Party’s cost, in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 11 will survive for three (3) years after the expiration or termination of this Agreement. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act. Yodelpop may disclose the name of Customer and existence of this Agreement as required by Applicable Law, court or regulatory order, audit or investigation.
12. RESOLVING DISPUTES
PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.
12.1 Please contact Yodelpop first! Yodelpop wants to address Customer's concerns without resorting to formal legal proceedings. Before filing a claim, Customer agrees to try to resolve the dispute informally by contacting Yodelpop first through info@Yodelpop.com, or via Customer’s designated Account Manager.
12.2 Venue for disputes. Customer and Yodelpop agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or state courts located in San Francisco County, California, subject to the mandatory arbitration provisions below. Customer and Yodelpop consent to venue and personal jurisdiction in such courts. Notwithstanding the above, Customer and Yodelpop agree that Customer alternatively may attend any arbitration proceedings telephonically or videographically, in which case Yodelpop will do so as well.
U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:
12.3 Arbitration.
1. Agreement to Arbitrate. Customer and Yodelpop agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
2. Arbitration Procedures. The American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States in accordance with the venue specified in Section 12.2.
3. Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. Yodelpop will pay all arbitration fees for Customer on a pre-pay plan where Customer’s claim is for less than $50,000. Yodelpop will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that Customer's claim is frivolous.
4. Exceptions to Agreement to Arbitrate. Either party may assert claims, if they qualify, in small claims court in Milwaukee, WI, provided that Yodelpop agrees that Customer may choose to appear by video, and if Customer so chooses, then Yodelpop shall appear by video as well. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, non-payment of Fees, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If this Agreement to arbitrate is found not to apply to Customer or Customer's claim, Customer agrees to the exclusive jurisdiction of and venue in the state and federal courts located in Milwaukee County, Wisconsin to resolve Customer's claim.
5. Opt Out of Agreement to Arbitrate. Customer can decline this agreement to arbitrate by sending an email within thirty (30) days of entering into this Agreement to: info@Yodelpop.com clearly stating that Customer wishes to opt out of arbitration with Yodelpop and include Customer's name, and the name and email address associated with the Account.
12.4 Class Action Waiver. Both parties agree to resolve any disputes, claims, or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), the Yodelpop Materials, or the Services provided by Yodelpop, will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
12.5 Controlling Law. This Agreement is governed by the law of the State of Wisconsin without regard to conflicts of law principles.
13. MISCELLANEOUS
13.1 Assignment. Customer may not assign this Agreement without the prior written consent of Yodelpop; provided, however, Customer may assign this Agreement with prior written notice to Yodelpop to an acquirer of all or substantially all of its assets or stock. Any other attempt to transfer or assign is void. Yodelpop may assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
13.2 Export Control Laws. The Services and Yodelpop Materials may be subject to United States export control laws, including the U.S. Export Administration Act or other import or export regulations in other countries. If applicable, Customer must comply with such regulations and is responsible for obtaining any related licenses.
13.3 Amendments. Yodelpop reserves the right to revise this Agreement and Services, and Customer’s rights and obligations are at all times subject to this Agreement then posted at https://www.Yodelpop.com. Customer is responsible for checking for updates online, and continued use of the Services after an update constitutes acceptance of this Agreement.
13.4 Independent Parties. Yodelpop is an independent contractor and not an agent of Customer in the performance of this Agreement.
13.5 Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
13.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the Services and will supersede all prior agreements between the parties (including any non-disclosure agreement executed prior to this Agreement), whether written or oral. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
13.7 Force Majeure. Yodelpop will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond Yodelpop’s reasonable control.
13.8 Severability. If any portion of this Agreement is held invalid or unenforceable, such invalidity or enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect, and the invalid or unenforceable portion will be given effect to the greatest extent possible.
13.9 Waiver. The failure of a party to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement, or waiver of any provision of this Agreement, constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
13.10 Third-Party Website Disclaimer. Links to third-party websites from the Services do not imply endorsement by Yodelpop of any products, services or information presented therein, nor does Yodelpop warrant or otherwise guarantee the accuracy of the information contained on them.
13.11 Order of Precedence. In the event of a conflict or inconsistency between any of the terms of the following documents, the following order of precedence shall control: (a) Order Form; (b) relevant Services Addendum; and (c) these Terms of Service.
13.12 Notice. Except as otherwise provided in this Agreement, all notices to Yodelpop must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested):
Yodelpop, Inc.
2651 N Downer Ave, Ste. 8
Milwaukee, WI 53211
U.S.A.
Attn: Legal Department
With an email copy to: info@Yodelpop.com
Notices to Customer will be sent to the email address on file and/or posted through the Services and are deemed effective when sent or posted.
