Dynamic Yield Terms of Service

Dynamic Yield Ltd. (“Dynamic Yield”) offers several products and services, including (i) a website at www.dynamicyield.com, (ii) a web analytics service which analyzes the usage methods of your website by your users, (iii) a real time customization of your webpages’ layouts according to your users’ preferences and activities, and (iv) other products and services as may be provided by Dynamic Yield from time to time, in its discretion (Collectively referred hereinafter as the “Services”).

These Terms of Service (the “Terms”) set forth the legally binding terms for the provision and use of any of the Services by you or any other user of the Services (“You” or “Customer”).

1. General

These Terms should be read together with, and hereby incorporate by reference, Dynamic Yield’s Privacy Policy (as may be amended from time to time – “Privacy Policy“), any subscription forms, service level agreement or any other agreement that may be entered between You and Dynamic Yield, each of which is made a part ofthese Terms and together they constitute the entire agreement between you and Dynamic Yield.Your use of Dynamic Yield’s website and/or any of the Services is subject to your acceptance and compliance with these Terms, the Privacy Policy, subscription forms, service level agreement or any other applicable agreement between You and Dynamic Yield.

1.1. Acceptance of These Terms

By using Dynamic Yield’s website and/or any of the Services, or by registration to the Services, submitting the subscription forms or completing the subscription process to the Services, You acknowledge that you have read these Terms (and the Privacy Policy, subscription forms and the service level agreement, as applicable) and you agree to be bound thereby and to comply therewith. If You do not agree to any of the provisions as set forth in these Terms (or in the Privacy Policy, subscription forms or service level agreement, as applicable), please refrain from any use of Dynamic Yield’s website and/or any of the Services. Your right to use the website or any of the Services is expressly conditioned upon your assent to all of these Terms, and the exclusion of all other terms.

1.2. Modifications of These Terms

Dynamic Yield reserves the right to change or modify these Terms from time to time. Posting the modified Terms on Dynamic Yield’s website will give effect to the revised terms. Your continued use of Dynamic Yield’s website and/or any of the Services following such modification indicates Your acceptance of any revised terms. If You do not agree to the revised terms, please cease immediately any usage of Dynamic Yield’s website and/or the Services.

1.3 Eligibility to Use the Services

By using the Services, You represent that: (a) You are at least 18 years old (whether acting on Your own behalf or as an authorized employee or representative on behalf of a corporation or an organization); (b) You have all requisite authority and power to enter into these Terms and/or to use the Services (if You intend to use the Services as an authorized employee or representative of a corporation or an organization, You also represent and warrant that You are duly authorized to act on behalf of such corporation or organization); (c) Your use of the Services does not violate any applicable law or regulation; (d) Your use of the Services is in full compliance with these Terms; and (e) all information You submit in the Dynamic Yield’s website, during the registration process and/or otherwise provided by You to Dynamic Yield in order to use the Services, is accurate and truthful, and You will maintain the accuracy of such information at all times. If Dynamic Yield is informed or has any reason to believe that you are not eligible to use the Services or  You become ineligible, Dynamic Yield reserves the right to suspend permanently or terminate the Services (or any part thereof) without notice.

2. Services

2.1. Provision of Services

Dynamic Yield shall provide You with the Services subject to the payment of all agreed charges, fees and other amounts due under these Terms, the subscription forms, the service level agreement (“SLA“) and/or any other agreement between You and Dynamic Yield (as applicable) (collectively – “Charges“), when due.

Dynamic Yield shall choose, in its sole discretion, the equipment, tools, system, software and hardware to be used in order to provide You with the Services. The Services shall be provided through Dynamic Yield’s servers and/or third party’s external servers or cloud services used by Dynamic Yield, as determined by Dynamic Yield, in its sole discretion.

Subject to the payment of the Charges, certain support services may be provided to You, according to the terms and provisions of the applicable SLA, as amended from time to time.

2.2. Requirements for the use of the Services

In order to use the Service on Your website, Your website has to comply with all applicable privacy laws, rules and regulations; and to contain:

(i)     a privacy policy that  discloses the usage of third-party technology and notifies  the users  that such third parties may collect and use certain Non Personally Identifiable Information with respect to such use of Your website by its users;

(ii)    conspicuous hyperlink to an opt-out web site that provides the users of Your website  the ability to opt out of any interest-based advertising;

(iii)  to the extent required by applicable law, rule or regulation, a mechanism to obtain, Your website users’ prior and informed consent to the usage of third-party technologies (reasonable evidence of such consent to be maintained to the extent so required).

2.3. Fees; Terms of Payment

Charges and terms of payment for the Services shall be as stated in the applicable subscription forms, the SLA, or any other agreement between You and Dynamic Yield (as applicable).

Unless otherwise agreed between You and Dynamic Yield, Charges may be paid by wire transfer, standing order or credit card. If financial details were provided by You upon subscription to the Services, Dynamic Yield shall apply any Charges against Your credit card or bank account (in case of standing order), as applicable, according to such financial details.

For the avoidance of doubt, You shall not be entitled to any refund in the event of unused Services.

2.4. Taxes

The Charges are exclusive of any and all levies and/or taxes, and You shall be responsible for the payment in full of any tax or other payment payable in respect thereof, including, without limitation, any withholding tax, sales tax and/or value added tax, if any.

2.5 Changes in the Services

Notwithstanding anything to the contrary, Dynamic Yield reserves the right to suspend, discontinue, delete, modify, or remove any Service offered from time to time, without prior notice, without reason or liability, and/or to offer certain services only in various versions or in selected times, based on Dynamic Yield’s sole discretion. In addition, Dynamic Yield may charge You, in the future, for Services which are currently available for free, upon prior written notice.

3. Subscription to Services; User Account

3.1. Customer Information

The subscription process, in which You register to the Services and submit subscription forms, may require You to provide information regarding, but not limited to, Your full name, Your email address, the name and number of the corporation or organization on behalf of which you are acting, and the domain of its website. Once You register to the Services, You represent and warrant that all subscription information You submit is accurate and truthful and that You agree to update and maintain the accuracy of such information at all times. Dynamic Yield reserves the right to suspend permanently or terminate the Services if subscription information submitted seems or proves to be false, inaccurate or incomplete.

The subscription process also requires You to create username and password. Dynamic Yield will, in accordance with its Privacy Policy, keep such username and password confidential. However, You are responsible for protecting and maintaining the confidentiality of Your username and password and for logging out of Your account at the end of each session. You are solely responsible for any and all activities that occur under your account. You will notify Dynamic Yield immediately upon learning of any unauthorized use of Your account or any other breach of security.

In the course of the subscription process You may also be required to provide financial information such as credit card or bank account information. This process as well as the clearing process shall be made through a secured website of a reputable third party service provider of Dynamic Yield. Any such financial information shall be used only to bill You for the Services you purchased and/or used. Dynamic Yield shall treat such information in accordance with its Privacy Policy and as set forth below.

3.2. Analytics Code; Collection and analyzing the Information of the Customer’s users; Customization of Customer’s webpages’ layouts

Following the subscription process, Dynamic Yield will provide you with a software analytics code (the “Analytics Code“). Such Analytics Code is required to be installed by You at Your website in order to enable Dynamic Yield to provide You with the Services. Your installation and use of the Analytics Code shall be made solely as necessary for You to use the Service on Your website and in accordance with the terms and conditions set forth in these Terms (and particularly the limited license terms set forth in Section 5 below).

Through such Analytics Code, Dynamic Yield may collect information of Your users (as further described in the Privacy Policy) in order to analyze Your users’ usage of Your website, to understand how Your users use Your website, to analyze retention and usage statistics of Your website, to produce reports to be stored in Your account for Your view and download and to customize Your webpages’ layouts according to Your users’ preference and web activities.

By installing the Analytics Codeat Your website, You hereby grant Dynamic Yield with a non-exclusive license to: (i) collect information of Your users as aforesaid; (ii) to analyze such information and Your users’ usage of Your website; (iii) to generate, based on such information, usage statistics and to produce reports to be stored in Your account for Your view and download; (iv) to customize Your webpages’ layouts according to Your users’ preference and web activities; all in accordance with these Terms and the Privacy Policy.

You represent and warrant that You have the full power, authority and all rights necessary to grant Dynamic Yield the aforesaid licenses, and You undertake to indemnify, defend and hold harmless Dynamic Yield, its affiliates and each of their shareholders, directors, officers, employees and representatives, from and against any costs, damages, losses, liabilities, and expenses (including without limitation reasonable attorneys’ fees) relating to or arising out of any claim of any of Your users that the collection and/or use of such user’s information by Dynamic Yield in connection with the Services infringing such user’s rights.

4. Proprietary Rights

Dynamic Yield owns and retains the entire title and interest in and to its technology (including, without limitation, the Analytics Code), website and any of the Services (and/or or any part thereof), including any and all intellectual property rights related and associated therewith (including, without limitation, any and all modifications thereof). Dynamic Yield’s website, the Services and the Analytics Code contain technology, data, ideas, know-how, trademarks, trade secrets, inventions, copyrights and other proprietary information of Dynamic Yield and its licensors. You are not granted with any right in the intellectual property associated or related to Dynamic Yield’s website, Analytics Code and/or any of the Services and nothing should be inferred as granting You with such rights. You shall not disclose to any third party any information of Dynamic Yield without Dynamic Yield’s express prior written consent.

Without derogating from the generality of the above, it is hereby clarified that all content, information and work products generated through, produced by or otherwise related to or associated with Dynamic Yield’s website and/or any of the Services, including without limitation, any reports, notes, records, charts, statistics, conclusions, analyses, lists, recommendations and any other documents or work products (in any media whatsoever), shall be the sole property of Dynamic Yield and You shall not have any right in connection therewith (except for the limited right to remotely access, view and download the reports generated by Dynamic Yield and stored in Your account, and to use such reports for Your internal and non-commercial purpose only, as described in Section 5.1 below).

5. Right of Use & Unauthorized Use

5.1. Limited License, Permitted Use

Subject to Your full compliance with these Terms and the full payment of the Charges, Dynamic Yield grants You, during the term of your engagement with the Company, with a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to: (i) access and use Dynamic Yield’s website and the Services strictly in accordance with these Terms, the Privacy Policy, the subscription forms, the SLA(as applicable) or any other agreement between You and Dynamic Yield, solely for internal purposes; (ii) to install the Analytics Code provided to You by Dynamic Yield in your website and use it solely as necessary for You to use the Services on Your website (iii) to remotely access, view and download the reports generated by Dynamic Yield and stored in Your account, and to use such reports for Your internal purpose only. Except as expressly provided herein, no license and/or right with respect to the Services and/or Dynamic Yield’s intellectual property, whether express or implied, is granted to You.

This license does not include any right to perform collection, aggregation, copying, duplication, display or derivative use of Dynamic Yield’s Analytics Code, website and/or the Services nor any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose. You are not allowed to use software, scripts or automated agents and bots in a manner intended to mine data from the Services, generate multiple accounts or automatically post multiple messages.

You will not (and You will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of Dynamic Yield’s technology (including, without limitation, the Analytics Code), website and/or any of the Services; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of Dynamic Yield’s technology (including, without limitation, the Analytics Code) and/or website; (iii) rent, lease, sell, assign or otherwise transfer rights in or to Dynamic Yield’s technology (including, without limitation, the Analytics Code), website and/or any of the Services; (iv) remove any proprietary notices or labels on Dynamic Yield’s technology (including, without limitation, the Analytics Code) and/or website or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of Dynamic Yield’s technology (including, without limitation, the Analytics Code), website and/or any of the Services; or (vi) use data labeled as belonging to Dynamic Yield and/or a third party in the Service for purposes other than viewing and downloading the reports stored in Your account. You will comply with all applicable laws and regulations in Your use of and access to Dynamic Yield’s website and/or any of the Services.

5.2 Restrictions on abuse and Offensive or Illegal Use

Dynamic Yield strictly prohibits the use of Dynamic Yield’s technology (including, without limitation, the Analytics Code), website and any of the Services or any of its functionalities for offensive, abusive, illegal or harming purposes. Dynamic Yield reserves the right to take action against customers who make any such restricted use, at Dynamic Yield’s sole discretion, including, but not limited to, suspending any or all use by such customers of Dynamic Yield’s website and/or any of the Services, in any way or manner, and/or terminating the engagement with such customers.

6. Disclaimer of Warranties; Limitation of Liability

6.1. General Disclaimer

DYNAMIC YIELD DOES NOT WARRANT THAT THE WEBSITE, THE ANALYTICS CODE AND/OR ANY OF THE SERVICES WILL OPERATE WITHOUT INTERRUPTION, BUGS OR ERROR FREE. DYNAMIC YIELD’S WEBSITE, ANALYTICS CODE AND/OR ANY OF THE SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND.

ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHERWISE, AS WELL AS ANY WARRANTIES REGARDING SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF DYNAMIC YIELD’S WEBSITE, ANALYTICS CODE AND/OR ANY OF THE SERVICES, ARE ALL EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.

Dynamic Yield also disclaims, to the fullest extent permitted by law, any warranties for other services or goods received through or advertised on Dynamic Yield’s website and/or any of the Services, or accessed through any links on Dynamic Yield’s website and/or any of the Services. To the fullest extent permitted by law, Dynamic Yield disclaims any warranties, responsibility or liability for any viruses or other harmful components in connection with Dynamic Yield’s website, analytics code and/or any of the Services and/or in connection with your website, your servers and/or any other of your property.

In addition, Dynamic Yield will not be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, but not limited to, internet failure, network or computer equipment failures, telecommunication equipment failure, other equipment failure, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or loss of or fluctuations in heat, light or air conditioning.

6.2 Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL DYNAMIC YIELD BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF DYNAMIC YIELD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF YOUR USE OF DYNAMIC YIELD’S WEBSITE, ANALYTICS CODE AND/OR ANY OF THE SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF RELIANCE ON OR USE OF ANY INFORMATION, STATISTIC, CONNCLUSION, OR ADVICE RECEIVED THROUGH DYNAMIC YIELD’S WEBSITE AND ANY OF THE SERVICES. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

IN ANY EVENT DYNAMIC YIELD LIABILITY SHALL NOT EXCEED THE AMOUNT YOU HAVE ACTUALLY PAID TO DYNAMIC YIELD WITHIN THE 12 MONTHS PERIOD PRECEDING TO THE RELEVANT EVENT.

6.3. Disclaimer of Advertisement or Sponsored Content

The Services may contain authorized or unauthorized advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that the material submitted by them on Dynamic Yield’s website and/or the Services is accurate and complies with applicable laws. Dynamic Yield is not responsible for the illegality or for any error, inaccuracy or problem in the advertiser’s or sponsor’s materials. Dynamic Yield does not endorse or promote or represent any of the products or services offered and will not be liable for these products or services. The placement of the advertisement or sponsored content, the selection of the advertisement or sponsored content and the tagging of such advertisement or sponsored content, may be done in an automated manner and in no case Dynamic Yield will be responsible or liable for the selection, placement or tagging of an advertisement or sponsored content.

6.4. Disclaimer of Third Parties Content, Sites and Services

Any content displayed as links on Dynamic Yield’s website or through the Services are developed by people/entities over which Dynamic Yield exercises no control. Dynamic Yield cannot and does not screen any sites linked from Dynamic Yield’s website or the Services, and such third parties’ websites are not investigated, monitored or checked for accuracy or completeness by Dynamic Yield. Dynamic Yield is not responsible for any information, content or opinions expressed in such websites. Inclusion of any linked website on Dynamic Yield’s website or through the Services does not imply approval or endorsement of the linked website by Dynamic Yield. If You decide to access these third-party websites via Dynamic Yield’s website or the Services, You acknowledge that these Terms (including the privacy policy herein) shall no longer in effect, andyou agree to comply with all the terms of use and/or policies for such websites at Your own risk and responsibility.

6.5. Indemnification

You agree to indemnify and hold harmless Dynamic Yield and its subsidiaries, affiliates, officers, directors and employees, from and against any and all liability, losses, claims, damages and expenses, including but not limited to reasonable attorney’s fees and costs of litigation, related to (i) Your breach of any of these Terms (including the Privacy Policy, subscription forms and/or the service level agreement, if applicable); and/or (ii) Your use of the Dynamic Yield’s website and/or Services; or (iii) Your violation of any rights of a third party (including, without limitation, of Your users); and/or (vi) any claim by a third party (including, without limitation, by Your users).

7. Termination

These Terms shall be in force while You use Dynamic Yield’s website, network or servers and/or any of the Services. Subject to the payment of all Charges due to Dynamic Yield, You may cease using the Services at any time, at Your sole discretion.

Without derogating from the above, Dynamic Yield reserves the right to suspend any or all access or use of Dynamic Yield’s Analytics Code, website and/or any of the Services, or terminate the engagement with You, with or without the Your consent, at any time and for any reason whatsoever (including, for violating these Terms and/or the Privacy Policy, subscription forms or the service level agreement, if applicable).

Termination of the engagement and/or suspension of any or all access or use of Dynamic Yield’s website or Services, are without prejudice to all other remedies available to Dynamic Yield by law or under these Terms.

Upon termination of Your engagement with Dynamic Yield, for any reason, Your rights to use Dynamic Yield’s website, the Analytics Code and/or any of the Services will cease immediately, and You shall not have any access to Your account including without limitation to the reports stored in Your account By Dynamic Yield.

Upon termination of Your engagement with Dynamic Yield for any reason (whether by You or by Dynamic Yield), You shall not be entitled to any refund of any Charges paid by You in advance.

8. Miscellaneous

8.1. Governing Law and Jurisdiction

These Terms shall be governed by and construed in accordance with the laws of the State of Israel (without regard to conflict of law principles).

Any claim You may have in connection with these Terms must first be submitted to Dynamic Yield in the form of a complaint (to: complaints@dynamicyield.com), to enable the parties to resolve the claim in a friendly and effective manner. If the parties fail to resolve the claim in this manner in a reasonable timetable, or if any other claim or dispute in connection with these Terms arises, it shall be brought before a competent court in the applicable jurisdiction. Notwithstanding the foregoing, Dynamic Yield may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.

8.2. Entire Agreement

These Terms (together with the Privacy Policy, purchase order/ subscription forms or the service level agreement, if applicable) constitute the entire legal agreement between You and Dynamic Yield and govern Your use of the Dynamic Yield’s website and/or any of Services and replace any prior agreement of understanding between You and Dynamic Yield in relation to the Services. Any waiver of any provision of these Terms will be effective only if in writing and signed by the waiving party.

8.3. Assignment

Dynamic Yield is allowed, at its sole discretion, to assign these Terms (including the Privacy Policy, the subscription forms, the service level agreement and/or any other agreement between You and Dynamic Yield) or any rights thereunder, including any information or data collected or gathered by Dynamic Yield through the website and/or in connection with the Services, to any third party, without giving any prior notice. In any event of assignment as aforesaid, these Terms (including the Privacy Policy and any other applicable agreement) shall apply to any successor or assignee, mutatis mutandis.

8.4. Feedback

Dynamic Yield may, from time to time, ask you to provide information regarding your experience while using the Services, for the purpose of measuring and improving the quality of the Services and the user’s experience. This feedback is very important to us, but you are not obligated to provide any information. However, any and all information that you voluntarily choose to provide us in feedback forms, and any survey that you may participate in, shall be used solely and anonymously for the purpose of reviewing the feedback and improving our Services.

8.5 Copyright & Trademark Notice

Copyrights © Dynamic Yield Ltd. 2015. All Rights Reserved. The trademarks, logos and service marks displayed on Dynamic Yield’s website and/or any of the Services are Dynamic Yield’s property or the property of other third parties. You are not permitted to use these trademarks, logos and service marks without prior written consent from Dynamic Yield or such third party.