Terms and Conditions

YUSP Service – v1.0

26.06.2015

How to use

This GRAVITY Terms of YUSP Service (the "Agreement") constitutes a legal, binding agreement between Gravity Research & Development Zrt. ("GRAVITY") and you with respect to the Service defined below.

By accepting this Agreement with the clicking the ”I accept” box indicating your acceptance, or by using the Service, you agree to this Agreement and all of its terms and conditions.

The acceptance means at the same time your declaration that you have the authority to bind the legal entity and its affiliates to this Agreement on behalf you are acting. In this case the terms „you” or „your” shall refer to this legal entity and its affiliates.

You are not allowed to use or access the Service for purpose of monitoring the availability, performance or functionality of the Service, or for any other benchmarking or competitive purpose.

1. PARTIES

This Agreement is concluded between you and the organization on whose behalf you accept the terms (“you”, or “Customer”) and GRAVITY (“GRAVITY”).

2. MEMBER ACCOUNT, PASSWORD, AND SECURITY

To register for the Service, you will be required to register and create an online account that will be used to manage your use of the Service hereunder ("Account"). All information required during the Account set-up process must be provided, and be complete and accurate in all respects. You must keep your Account and password confidential. You are solely responsible for any and all activity initialized through your Account. You agree to immediately notify GRAVITY of any unauthorized use of your Account. From time to time, GRAVITY's personnel will log in to the Service under your Account and access and use Client Data (defined below) and other information in your Account in order to provide, maintain, support or improve Service.

One Account shall make you able to maintain one Website of yours. In case you want to use the Service relating more Websites, you may need to register and create more Accounts.

Each of your Accounts shall be deemed to be separate subscriptions, but will be invoiced together with your other Accounts.

3. YUSP

YUSP is a cloud based recommendation service intended for use in online web shops and content sites. To use YUSP you must install the Gravity Javascript widget or Gravity Magento plugin in your Website to capture and collect product/content data and user preference and behavioral data (clickstream data) and feed them to YUSP. With Gravity Javasrcipt plugin, YUSP creates product/content catalog (Item Catalog) by automatically collecting product/content data when visitors of your Website visit the relevant product/content page first. Subject to the availability of YUSP Service, the Item Catalog is updated daily. With Gravity Magento Plugin, the Item Catalog can be fed into YUSP all at once. Subject to the availability of YUSP Service, YUSP processes and analyzes the data feeds from your Website using the proprietary technology of Gravity, and responds to recommendation request with intelligent product/content recommendations customized to your Website. YUSP Service comes with YUSP Dash, a dashboard web service, where you can monitor the performance of YUSP on your Website. You can find a more comprehensive description of YUSP and its features at www.yusp.com.

Unless otherwise agreed in writing, you may use YUSP solely in connection with, and for the purposes of your Website. You may represent and allow access to the displays generated with YUSP on your Website only, except by separate arrangements made with GRAVITY.

You may choose during the creation of your Account one type of subscription to YUSP, which includes certain number of monthly recommendation calls. In case you use more recommendation calls with your subscription on your Account, you will be extra charged according to the actual price list for the recommendation call above your monthly subscription limit. You may vary your subscription to a higher level of type of YUSP at any time, which will be available from the first day of the following month in which you made your modification.

YUSP is a constantly developing service. Therefore, we may amend the features of YUSP by removing, modifying or adding existing and new features without giving you a notice. We will, however, endeavor to inform you of material changes in YUSP by posting a notice at www.yusp.com. If you are not willing to accept any significant changes in YUSP, then you can at any time cease to use YUSP, and/or terminate this Agreement by emailing us a written notice of termination, as explained below.

GRAVITY and YUSP is protected by copyright, trademark, trade secrets and other intellectual property rights of GRAVITY Research & Development Zrt. YUSP shall hereinafter referred to as Service.

Service will commence on the date that GRAVITY electronically confirms your order of the Service pursuant to this Agreement ("Delivery Date").

4. THE WEBSITE

You are solely responsible for your Website and your conduct and any data, text, links, information, image and/or any other material (“Content”) that you choose to display through YUSP on your Website.

You may not use the Services for any illegal or unauthorized purpose. You agree to comply with all local laws regarding your Website, in particular the laws and regulations regarding data privacy and handling of personal data. You are responsible, where required, for informing your users of our activities and obtaining your users’ consent to us for storing and handling the data collected on your Website in accordance with this Agreement and, where applicable, for sending marketing messages to your Website users.

We may, but have no obligation to, suspend or terminate your use of the Services if we determine in our sole discretion that the Content or your Website is unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates this Agreement.

5. SERVICE AND SUPPORT

GRAVITY will, at its sole discretion, (i) provide technical documentation for the Services software (with code examples as available), (ii) offer technical support on an as-available basis through internet as defined in its website, and (iii) provide updates and news regarding new features, versions, and technology updates. The level of support may vary depending on the level of the subscribed Service.

6. FEES

Using the Service is subject to the fees set out in GRAVITY’s price list current at the time, available at www.yusp.com. GRAVITY may change the price list from time to time.

The Service Fees are non-refundable even in case of termination of the Agreement by you according to Clause 3 of this Agreement.

7. PAYMENT TERMS

Sales tax, use tax, VAT, and any other applicable taxes that are mandatory in the country or region that your company is registered, or doing business in, or that is otherwise required to you by any authorities wherever, are your sole responsibility, and you hereby acknowledge and agree that the Service Fees are exclusive of all such taxes.

GRAVITY will issue its invoice to you electronically. By accepting this Agreement you declare that you are capable to accept e-invoices. The payment shall be made via the payment system of Braintree, https://www.braintreepayments.com.

GRAVITY reserves the right to suspend or terminate at its sole discretion your access to the Service in the event of your failure to make any payment to GRAVITY within thirty (30) days after such payment is due. You will reimburse GRAVITY for all expenses incurred in connection within the collection of amounts payable. GRAVITY may charge interest on all late payments in the amount of 15% per year. You agree and acknowledge that GRAVITY will not be responsible for any damages resulting from such suspension or termination of your access to the Service. Unless otherwise stated, all fees are quoted in the currency specified in the applicable Price List. You are responsible for paying all fees associated with using the Service.

8. RIGHTS OF USAGE, GRANTED LICENSE

The Service and all components and documentation thereof, including, without limitation, the YUSP tracking code, the structure and any part of it, GRAVITY's Confidential Information, GRAVITY APIs, any other GRAVITY information and materials, and all worldwide intellectual property rights in the foregoing, are the exclusive property of GRAVITY, its licensors and/or its suppliers. GRAVITY, its licensors and/or its suppliers reserve all rights not expressly granted to you in this Agreement. As between GRAVITY and you, all data collected and analyzed by the Service for your Account (“Client Data”) and all worldwide intellectual property rights in Client Data, are your exclusive property. GRAVITY may use Client Data to modify and improve the Service, GRAVITY business, GRAVITY technology or provide additional services. However, GRAVITY will not use any particular data that is identifiable to you.

Provided you are not in breach of this Agreement, GRAVITY grants you a limited, worldwide, non-exclusive, non-transferable and revocable license to install and use the Service software within your Website(s), and to access recommendations and other services from the YUSP.

You or any of your employees, officers, directors or authorized contractors, (each a "User") shall not (i) use the Service or any portion thereof to provide services to any third party or for the benefit of any third party (whether by means of a service bureau, by "mirroring" or "framing" any part of the Service, or otherwise), or make the Service available to anyone other than Users; (ii) copy, modify, create a derivative work of or gain unauthorized access to the Service, including, without limitation, for the purpose of developing a similar or competitive product or service; (iii) remove, obscure or alter any proprietary notices or labels on the Service or any component thereof; (iv) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (v) disclose the results of any performance, functional or other evaluation or benchmarking of the Service, provided, however, you may distribute the Client Data; (vi) use the Service to upload, store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (vii) use the Service to collect, upload, store or transmit infringing, libelous or otherwise unlawful or tortuous material, or to collect, upload, store or transmit data in violation of third-party privacy rights or applicable privacy and data security laws, rules or regulations; or (viii) attempt to gain unauthorized access to the Service or related systems or networks.

You shall (a) be responsible for each User's compliance with this Agreement, (b) be solely responsible for the integrity and legality of Client Data and of the means by which you acquired Client Data, and (c) use the Service only in accordance with the applicable documentation and applicable laws and government regulations. You hereby acknowledge and consent to GRAVITY's use of our own products to collect and analyze data regarding your and Users' access and use of the Service, to improve the Service and GRAVITY technology, and to optimize your access to and use of the Service.

Nothing in these Terms constitutes the transfer of an ownership right in the Intellectual Property of either Party. “Intellectual Property” means all ideas, concepts, designs, inventions, creative works, discoveries, patents, products, specifications, computer software programs, databases, original works of art and authorship, formulas, processes, compositions of matter, improvements, drawings, notes, documents, information, mask works, trade secrets and materials made, as well as any improvements thereto, trademarks and trade names, and related sales, business, and marketing plans.

9. INFORMATION THAT WE COLLECT

During the use of the Service, our servers (which may be hosted by a third party service provider) collect information automatically from your Website. The Service generates random cookies for identifying your users, and GRAVITY shall not become aware of any personal data of the user of your Website, therefore GRAVITY may not be deemed as data controller or data processor with respect of the personal data of your users. In any event, if GRAVITY ever receives personal data, we will treat all such data in accordance with our privacy policy. You will not use the YUSP to associate your users’ personally identifiable information with their preferences information without the explicit permission of your users.

We may use the information collected and created through YUSP for our own business purposes provided, however that such information is made anonymous in a manner that the information is not identifiable to any person or to your Website.

By using the Service, you give us the consent to store, process and transfer your information on your Website outside of your country of residence.

YUSP should not be confused with other website functions or cookies, as it is technically separate service and is not involved with the Website’s core functionality, e.g. orders, payments, deliveries. However, we use and send two different kinds of cookies to the browser of your Website visitors, with the following functions: (i) visit in store and (ii) visit history (cart restore and product browsing information). Your visitors can prevent the use of cookies, but then all features of YUSP, or your Website cannot be used.

10. CONFIDENTIALITY

You and/or GRAVITY may have access to information that is confidential and proprietary to the other party ("Confidential Information"). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. GRAVITY's Confidential Information shall include, but not be limited to, the Service, formulas, methods, know-how, processes, designs, new products, developmental work, marketing requirements, marketing plans, licensee names, prospective licensee names, the terms and pricing under this Agreement, and the results of any comparative or other benchmarking tests with respect to the Service, in each case regardless of whether such information is identified as confidential.

Confidential Information includes all information received from third parties that the disclosing party is obligated to treat as confidential and oral information that is identified by the disclosing party as confidential.

This obligation of confidentiality does not apply to (i) any information that is or becomes a part of the public domain through no act or no omission by the receiving party, (ii) was in the receiving party's lawful possession prior to the disclosure without any restriction on disclosure, or (iii) is independently developed by the receiving party without use of or reference to such Confidential Information.

If the receiving party is required to disclose such Confidential Information to any court or government authority, then the receiving party hereby agrees to provide the disclosing party with sufficient written notice prior to the receiving party's disclosure.

The present obligation of confidentiality shall survive any termination of this Agreement. Each party agrees not to (a) make Confidential Information available in any form to any third party except to such party's employees, contractors, agents or service providers who are required to have access to that information in order to allow such party to exercise its rights or perform obligations under this Agreement, or (b) to use the Confidential Information for any purpose other than in the performance of this Agreement. Each party agrees not to disclose the results of any performance tests of the Service to any third party. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by such party's employees or agents in breach of this Agreement. Upon request of the disclosing party, the receiving party will destroy the disclosing party's Confidential Information, other than archival back-up copy.

11. LIMITED WARRANTY

GRAVITY makes no warranty that YUSP will meet your requirements, or that the Service will be uninterrupted, timely, secure or error-free, nor does GRAVITY make any warranty as to the results that may be obtained from the Service or as to the accuracy or reliability of any information obtained through YUSP. GRAVITY warrants that in the event that the Service is not available or that there are errors in its operation GRAVITY will use every reasonable effort to remedy the event. This is your sole remedy in the event of interruption or errors in the Service.

THERE ARE NO OTHER WARRANTIES THAN WHAT IS EXPRESSLY STATED IN THIS SECTION AND GRAVITY DOES NOT MAKE ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT) REGARDING THE USE OR THE RESULTS OF THE USE OF YUSP, TO THE GREATEST EXTENT PERMITTED BY LAW.

12. LIABILITY LIMITATION

TO THE GREATEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL GRAVITY, ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOST PROFITS AND ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, OR THE INABILITY TO USE YUSP, THE MATERIALS OR SOFTWARE AVAILABLE THROUGH WWW.YUSP.COM and WWW.GRAVITYRD:COM EVEN IF THERE IS NEGLIGENCE OR EVEN IF GRAVITY OR ITS AUTHORIZED REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE GREATEST EXTENT PERMITTED BY LAW, GRAVITY’S TOTAL AGGREGATE LIABILITY IS LIMITED TO THE AVERAGE AMOUNT OF MONTHLY FEES PAID BY YOU TO GRAVITY.

13. INDEMNITY

You agree to indemnify and hold GRAVITY its affiliates, officers, directors, employees, suppliers or partners harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.

14. TERM AND TERMINATION

This Agreement and the Service will commence upon the Delivery Date with an initial period of 30 days and after the initial period it will remain effective for an indefinite period of time. You may terminate this Agreement for any reason or for no reason by notifying GRAVITY in writing via email with at least thirty (30) day notice. GRAVITY may terminate your use of the YUSP at any time.

GRAVITY may terminate this Agreement effective immediately upon written notice to you, if you or any User breaches any other provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from GRAVITY.

You may terminate this Agreement effective immediately upon written notice, if GRAVITY breaches any provision of this Agreement, and does not cure the breach within thirty (30) days after receiving written notice from you.

Upon termination by you for GRAVITY's breach, you shall pay GRAVITY for the actual Service Fees, and any other fees related to the Service incurred by you prior to the date of the breach. Upon termination by GRAVITY for breach by you will pay GRAVITY for the total Service Fees, professional services fees, if applicable, and any fees purchased by you under all applicable order documentation during the then current Term. Upon termination of this Agreement for any reason, (i) all rights granted herein will immediately cease to exist, and you must promptly discontinue all further use of YUSP and GRAVITY will terminate all access to the Service by you or any User, and (ii) you must destroy all tangible copies of the documentation related to the Service and erase all electronic versions thereof, and remove all GRAVITY tracking code from the Websites. Upon request, you will certify to GRAVITY in writing that you have fully complied with the requirement in the foregoing sentence. Upon termination of this Agreement and the Service, GRAVITY will delete all of your then current Account(s), which will delete all profiles within your Account(s).

15. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES

GRAVITY reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service, or any policy governing the Service, at any time, by posting the new agreement to the websites of GRAVITY at www.yusp.com or www.gravityrd.com. You are responsible for regularly reviewing the agreement. Your continued use of the Service following GRAVITY's posting of the change(s) will constitute your acceptance of such change(s).

If GRAVITY decides to terminate the Service, your sole remedy will be to discontinue use of the Service.

If you do not agree with the terms of the Agreement you should immediately discontinue using YUSP.

16. CLIENT REFERENCE

You hereby grant GRAVITY the right to use your trade name and your corporate logo in connection with GRAVITY's promotional materials and website to identify you as a client of GRAVITY.

17. MISCELLANEOUS; APPLICABLE LAW AND VENUE

1. This Agreement, including all order documents, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals representations written or oral, concerning its subject matter.

2. GRAVITY shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control, including without limitation, any force majeure event, problems with Internet access, or problems that result from your or third party actions or inactions or that result from your or third party equipment, software or technology (other than third party equipment within our direct control).

3. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, consistent with the original intent of the parties, and the other provisions of this Agreement will remain in force.

4. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

5. The parties are independent contractors. No person performing any of the work or services described herein on behalf of one of the parties will be considered an officer, agent, servant or employee of the other. Each party will be responsible for the acts or omissions of its own officers, agents, employees, and subcontractors. Nothing herein will be construed as creating a partnership or joint venture between the parties.

6. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of Hungary and the parties agree to submit to the exclusive jurisdiction of the Hungarian courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.