TERMS & CONDITIONS
Yakk (www.yakk.com.au), including all of its related applications, dashboards or platforms (individually and collectively, the “Website”), is owned and operated by Astute Marketing Solutions Pty Ltd. (“Yakk”, “we” or “us”). By using or accessing the Website or Yakk's Service(s), by signing or clicking to accept any Subscription Forms referencing these Terms, or by clicking to accept these Terms, or by using any of Yakk's services, you agree to all the terms and conditions of this Terms of Service Agreement (“Terms”, “Terms of Service” or “Agreement”).
If you are using a Yakk's Service on behalf of a company or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.
This Agreement includes any Subscription Forms (as defined below), as well as any policies or exhibits linked to or referenced herein.
1. OVERVIEW OF YAKK.
Yakk provides a suite of products that allows subscribers to help generate more reviews on various sites, including Google. Yakk uses several methods of helping a business collect reviews such as the Yakk Review Widget. Based on these selections, variations of these services are presented to Visitors. The Service-Specific Terms and the applicable Documentation provide additional details about each Yakk Service. Yakk also provides Social Media Management, including but not limited to, running advertisements on all social media platforms such as Facebook, Google, Instagram, Linkedin plus any others that may exist. Other services include the running and set up of Google Ads and other Search Engine Marketing advertisements such as Youtube Ads.
Furthermore, Yakk also conducts the setup and maintenance of sales funnels, landing pages and websites for clients.
Additional services may include various other services such as copywriting, conversion optimisation, podcasting services, coaching, mentoring, sales training, plus more.
2.1 “Add-On” means integrations, applications, and other add-ons that are used with the Service.
2.2 “Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
2.3 “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Visitors; and (ii) learnings, logs, and data regarding use of the Service.
2.4 “Authorized Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf.
2.5 “Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
2.6 “Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the Service. This Content becomes public on the Customer Properties, so Customer should only provide Content that it wishes others to see.
2.7 “Customer Apps” means the applications (such as for mobile device platforms or OTT devices) expressly identified in the applicable Order Form.
2.8 “Customer Data” means: (i) Content; (ii) Submitted Data; (iii) Visitor Data; and (iv) any other Customer Data specified in the Service-Specific Terms.
2.9 “Customer Property or Properties” means: (i) Customer Sites; (ii) Customer Apps; or (iii) other types of platforms or properties specified in the applicable Subscription Form.
2.10 “Customer Sites” means the web domains expressly identified in the applicable Subscription Form.
2.11 “Documentation” means the end user technical documentation created by Yakk and provided with the Service.
2.12 “Service” means the specific proprietary software-as-a-service product(s) of Yakk specified in Customer’s Subscription Form, including any related Yakk Code and Documentation, and excluding any Third-Party Products. Service will also mean other services Yakk conducts as outlined in section 1.
2.13 “Yakk Technology” means the Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
2.14 “Subscription Form” means any Yakk ordering/sales documentation or online sign-up or subscription flow that references this Agreement.
2.15 “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected or regulated health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.
2.16 “Scope of Use” means the usage limits or other scope of use descriptions for the Service included in the applicable Order Form (including descriptions of packages and features) or Documentation. These include any numerical limits on Visitors or Authorized Users, descriptions of product feature levels, and names or numerical limits for Customer Properties.
2.17 “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the Service, including Third-Party Content.
2.18 “Subscription Term” means the initial term for the subscription to the applicable Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).
2.19 “Third-Party Content” means content, data or other materials that Customer provides to the Service from its third-party data providers, including through Add-Ons used by Customer.
2.20 “Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by Yakk.
2.21 “Virus” means a virus, Trojan horse, or worm that is designed to harm, disrupt or interfere with computers, software or hardware and detectable using commercially reasonable procedures.
2.22 “Visitor” means any end user of a Customer Property.
2.23 “Visitor Data” means the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the Service, including any data specified in the Service-Specific Terms.
Other terms are defined in other Sections of this Agreement or in the relevant Service-Specific Terms, policies, or Exhibits.
3. ACCOUNT REGISTRATION AND USE.
4. USE RIGHTS.
4.1 Use of Yakk Services. Subject to all the terms and conditions of this Agreement, Yakk grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Yakk Service(s) designated on Customer’s Subscription Form solely for Customer’s internal business purposes, but only in accordance with this Agreement (including without limitation any applicable Service-Specific Terms), the Documentation, and all applicable Scope of Use descriptions. Where specified in the Service-Specific Terms, the Service may require installation of Yakk code on Customer Properties. In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant Yakk Code on the specified Customer Properties and, in the case of Customer Apps, to distribute the installed Yakk Code with Customer Apps.
4.2 Use by Others. Customer may permit its Authorised Users to use the Service, provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customer will be responsible and liable for all Authorised Users’ use and access and their compliance with the terms and conditions of this Agreement. Use by all Authorised Users in aggregate will count towards applicable Scope of Use restrictions.
4.3 General Restrictions. Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the Service to a third party (except Authorised Users); (ii) incorporate the Service (or any portion of it) with, or use it with or to provide, any site, product, or service, other than on Customer Properties owned-and-operated by Customer and as specifically permitted above; (iii) publicly disseminate information regarding the performance of the Service (which is deemed Yakk's Confidential Information); (iv) modify or create a derivative work of the Service or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Yakk's Service (including Yakk's Code), except to the extent expressly permitted by applicable law and then only with advance notice to Yakk; (vi) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Service, or configure the Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (vii) distribute any portion of the Service other than the Yakk's Code installed in Customer Properties as specifically permitted above; (viii) access the Service for the purpose of building a competitive product or service or copying its features or user interface; (ix) use the Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Yakk's prior written consent; or (x) remove or obscure any proprietary or other notices contained in the Service, including in any reports or output obtained from the Service.
4.4 Beta Releases and Free Access Subscriptions. Yakk may provide Customer with a Service or Yakk's Code for free or on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage Services, Yakk's Code, integrations, or features (“Beta Releases”), which are optional for Customer to use. This Section will apply to any Free Access Subscriptions or Beta Releases (even if Beta Releases are provided for a fee or counts towards Customer’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. Yakk may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH YAKK WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. Yakk makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. Yakk may terminate Customer’s right to use any Free Access Subscriptions or Beta Releases at any time for any reason or no reason in Yakk's sole discretion, without liability.
5. CUSTOMER DATA.
5.1 Rights in Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data, all Customer Properties, and all content contained within them (excluding any Yakk Technology). Customer hereby grants Yakk a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Service and related services to Customer and as set out in Section 5.2 (Aggregate/Anonymous Data). For Content, this includes the right to publicly display and perform Content and the Customer Properties (including derivative works and modifications) as directed by Customer through the Service.
5.2 Aggregate/Anonymous Data. Customer agrees that Yakk will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Yakk Technology, which Yakk may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Yakk products and services and to create and distribute reports and other materials). For clarity, Yakk will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Customer is not responsible for Yakk's use of Aggregate/Anonymous Data.
5.3 Storage. Yakk does not provide an archiving service. During the Subscription Term, Customer acknowledges that Yakk may delete Content no longer in active use. Yakk expressly disclaims all other obligations with respect to storage. Additional storage terms may be specified in the applicable Service-Specific Terms.
5.4 Data Export. Yakk provides the ability for Customer to export data at any time in the Service as described in the Documentation.
6. CUSTOMER OBLIGATIONS.
Yakk makes available web-based support through its website (currently available at www.yakk.com.au). Additional support services may be available to Customer upon payment of applicable fees (if any), as specified in Customer’s Subscription Form. Any support services are subject to this Agreement and Yakk's applicable support policies. Yakk may also provide onboarding, deployment and other services under this Agreement. The scope, pricing, and other terms for these additional services will be specified in an Subscription Form, Subscription Form exhibit, or other document referencing this Agreement. Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the Service, subject to the restrictions in Section 4 (Use Rights) above applicable to the Yakk Service itself. Yakk's ability to deliver services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services. For the avoidance of doubt, Customer retains ownership of any Confidential Information it provides to Yakk. Google may make changes/updates which may alter what our system intends on doing. We will, however, alter our system with these changes/updates to the best of our ability. Any changes that we may not be able to alter to, may cause slight differences in the packages which are out of our control and we offer no refunds if these changes do not meet your requirements. If a customer wishes to write a Google Review, they will require a Google account to do so. If they have not logged in to their Google account on their device before, it will ask them to sign in. If they do not have a Google account, they will be required to sign up in order to complete the Google Review. Yakk does not in any way manipulate any reviews and it is the businesses decision on how the star rating system is configured. Yakk does not stop any consumer writing a review directly on Google, we encourage all feedback, good or bad. Yakk does not endorse any discrimination between positive and negative reviews and it is at the businesses discretion to whom they send review requests to.
The minimum period for the supply of all services is three months and Yakk undertakes to guarantee the charges stated during this period. At the end of this period, this agreement shall continue and the client shall give a minimum of 30 days written notice of a wish to discontinue use of the service. Either party can terminate this agreement with notice. Visit our cancellation terms at www.yakk.com.au/cancellations. First month’s payment is taken upfront, all following payments are to be made every month on the date on which the client signed up to Yakk's services.
Yakk makes no warranty that the Social Media Campaign, Google Ads or any other service provided will generate any increase in sales, business activity, profits or any other form of improvement for your business or any other purpose. The results specified on this website are results of our and most consumers that undergo a marketing campaign see little to no results. The client should be aware of this and understands this risk. Yakk does not in anyway guarantee results or increase in sales in any way.
There are no refunds available on services provided by Yakk.
No liability whatsoever (except as provided by law) will be accepted by Yakk for any damages or losses arising from or as a consequence of the provision of the Services or any other act or default on the part of Yakk or of any servant, agent or contractor of Yakk in relation to this agreement and the Services unless the same occurs because of the negligence of Yakk, its servants, agents or contractors in which case liability is limited to resupplying the Services again or a refund of the fees paid by you in the previous 1 month as elected by Yakk.
Quotes and pricing terms are negotiated between Client and Yakk and may be unique to the Client. Therefore, and except as otherwise provided by law, Client hereby agrees to keep the pricing arrangement confidential for a period of no less than three (3) years from the date of the signed quote. Client will not use this Confidential Information in furtherance of its business, or the business of anyone else, whether or not in competition with Prospecting Solutions
This Agreement shall be governed by the laws of Australia.
8. FEES AND PAYMENT.
Customer agrees to pay all fees in the currency and payment period specified in the applicable Subscription Form. Yakk's fees are exclusive of all taxes, and Customer must pay any applicable sales, GST, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Yakk. Customer will make tax payments to Yakk to the extent amounts are appropriately included in Yakk’s invoices or Subscription Forms. Yakk sends invoices electronically, and invoices for the Yakk's Service in advance as set out in the Subscription Form, and for overages or additional CPM, if applicable in the relevant Subscription Form, monthly in arrears. If Customer requires a Purchase Order number referenced on Yakk's invoice, Customer must promptly provide the Purchase Order number. If Customer does not promptly provide the Purchase Order number, Customer agrees to pay the invoice without a referenced Purchase Order Number. Customers will have the option to pay by credit card. If Customer is paying by credit card, it authorizes Yakk's to charge and fees other amounts automatically to Customer’s credit card without invoice. Payments are non-refundable and non-creditable and payment obligations non-cancellable. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law. Yakk reserves the right to increase any fee's or payments at any time without notice. These changes to pricing will not happen more than 3 times a year. If a price increase is implemented, the new rate of service will be automatically charged for all future renewals.
9. TERM AND TERMINATION.
9.1 Term. This Agreement is effective until all Subscription Terms for the Yakk Service(s) have expired or are terminated as expressly permitted in this Agreement.
9.2 Subscription Term and Renewals. By executing a Subscription Form for purchase of a Yakk Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.4 (Termination for Cause) or a Service-Specific Term. If no subscription start date is specified on the applicable Subscription Form, the subscription starts when Customer first obtains access to the Yakk Service. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Subscription Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. (iii) The Customer signs up to a No Lock-in Contract, where the minimum initial commitment period is three (3) months and is required to give at least sixty (30) days notice of non-renewal. A payment of one months is required and upon receiving this payment, the service can be cancelled immediately. Pricing for any Subscription Term renewal, new Subscription Form, or Subscription Form changes will be at Yakk's then-applicable rates.
9.3 Suspension of Service. Yakk may suspend Customer’s access to the Service(s) if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its Scope of Use limits. Yakk may also suspend Customer’s access to the Service(s), remove Customer Data or disable Third-Party Products if it determines that: (a) Customer has breached Sections 4 (Use Rights) or 6 (Customer Obligations); or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Service. Yakk will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 9.3. However, unless this Agreement has been terminated, Yakk will cooperate with Customer to promptly restore access to the Service once it verifies that Customer has resolved the condition requiring suspension.
9.4 Termination for Cause. Either party may terminate this Agreement, including any related Subscription Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter). Yakk may also terminate this Agreement or any related Subscription Forms immediately if Customer breaches Sections 4 (Use Rights) or 6 (Customer Obligations), or for repeated violations of this Agreement.
9.5 Effect of Termination. Upon any expiration or termination of this Agreement or an Subscription Form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable Yakk's Service(s) (including any related Yakk Technology); (b) stop distributing any Yakk's Code installed on its Customer Properties; and (c) delete (or, at Yakk's request, return) any and all copies of the Yakk's Code, any Yakk documentation, passwords or access codes, and any other Yakk Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable Yakk Service will cease and Yakk may delete the Customer Data at any time after 30 days from the date of termination. If Yakk terminates this Agreement for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
9.6 Survival. The following Sections survive any expiration or termination of this Agreement: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Free Access Subscriptions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 11 (Yakk Technology); 12 (Indemnification); 13.2 (Disclaimers); 14 (Limitations of Liability); 15 (Third-Party Products and Integrations); and 16 (General).
10. CONFIDENTIAL INFORMATION.
10.1 Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and (ii) only use the other party’s Confidential Information to fulfil its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for Yakk, includes the subcontractors referenced in Section 16.5), provided that the party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than this Section.
10.2 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
10.3 Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
11. YAKK'S TECHNOLOGY.
11.1 Ownership and Updates. This is a subscription agreement for access to and use of the Service. Customer acknowledges that it is obtaining only a limited right to use the Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer under this Agreement. Customer agrees that Yakk (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all Yakk Technology (which is deemed Yakk's Confidential Information) and reserves any licenses not specifically granted in this Agreement. Other than the Yakk's Code, the Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any Yakk Service and that Yakk at its option may make updates, bug fixes, modifications or improvements to the Service from time-to-time.
11.2 Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Yakk (collectively, “Feedback”), Customer hereby grants Yakk a worldwide, perpetual, non-revocable, sub-licensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Yakk will not identify Customer as the source of the Feedback. Nothing in this Agreement limits Yakk's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Customer agrees to defend and indemnify Yakk from and against any third-party claims and liabilities to the extent resulting from: Customer Data; Customer Properties (including services or products provided through the Customer Properties); or a breach or alleged breach of Section 6 (Customer Obligations). Customer must not settle any claim without Yakk's prior written consent if the settlement would require Yakk to admit fault, pay amounts that Customer must pay under this Agreement, or take or refrain from taking any action. Yakk may participate in a claim through counsel of its own choosing at its own expense and Customer and Yakk will reasonably cooperate on the defense.
ALL YAKK TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER YAKK NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. YAKK MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT YAKK'S TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT YAKK'S TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. YAKK DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. YAKK WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-YAKK SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON YAKK'S TECHNOLOGY OR YAKK RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW. YAKK DOES NOT IN ANY WAY GUARANTEE RESULTS OR INCREASE IN SALES/REVENUE FOR ANY OF YAKK'S SERVICES. RESULTS DISPLAYED ARE YAKK'S RESULTS AND ARE CONSIDERED ABOVE AVERAGE AND THE CUSTOMER SHOULD BE AWARE THAT MOST BUSINESSES THAT UNDERGO 'MARKETING' DO NOT GET RESULTS.
14. LIMITATIONS OF LIABILITY.
14.1 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL YAKK OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES. YAKK AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO YAKK FOR THE APPLICABLE YAKK SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, YAKK’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY DOLLARS ($50).
14.2 Exceptions. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14.3 Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY YAKK TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
15. THIRD-PARTY PRODUCTS AND INTEGRATIONS.
If Customer uses Third-Party Products in connection with the Services, those products may make Third-Party Content available to Customer and may access Customer’s instance of the Service, including Customer Data. Yakk does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Yakk as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Services, including their modification, deletion, disclosure, or collection of Customer Data. Yakk is not responsible in any way for Customer Data once it is transmitted, copied, or removed from the Services by Customer or under Customer’s direction. Customer may use Yakk's Add-on Platform to enable non-Yakk Add-Ons for use with the Services.
16.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Yakk may assign this Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be void.
16.2 Notices. Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices) to Yakk, in English, at the following address, email@example.com, and include “Attn. Legal Department” in the subject line. Yakk may send notices to the email addresses on Customer’s account or, at Yakk's option, to Customer’s last-known postal address. Yakk may also provide operational notices regarding the Service or other business-related notices through conspicuous posting of the notice on Yakk's website or the Service. Each party consents to receiving electronic notices. Yakk is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.
16.3 Publicity. Unless otherwise specified in the applicable Order Form, Yakk may use Customer’s name, logo, and marks (including marks on Customer Properties) to identify Customer as a Yakk customer on Yakk's website and other marketing materials.
16.4 Subcontractors. Yakk may use subcontractors and permit them to exercise the rights granted to Yakk in order to provide the Service and related services under this Agreement. These subcontractors may include, for example, Yakk's hosted service and CDN providers. However, subject to all terms and conditions of this Agreement, Yakk will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the Services if and as required under this Agreement.
16.5 Subpoenas. Nothing in this Agreement prevents Yakk from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Yakk will use commercially reasonable efforts to notify Customer where permitted to do so.
16.6 Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
16.7 Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
16.9 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
16.10 No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Customer acknowledges that each Subscription Form only permits use by and for the legal entity or entities identified in the Subscription Form(s) as the Customer, and not any Customer Affiliates.
16.11 Entire Agreement. This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Yakk Technology or any other subject matter covered by this Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.
16.12 Governing Law, Jurisdiction and Region-Specific Terms. Governing law, jurisdiction, and other region-specific terms are set out below:
Australia and New Zealand. For customers located in Australia and New Zealand, the following terms apply:
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of Australia.
Additional tax-related section (Australia and New Zealand):
A. Interpretation. References to an entity in this tax-related section (including Yakk, the Customer, or the Payee, defined below), include references to the representative member of a GST group to which the entity belongs. All words and phrases that are not otherwise defined in this Agreement have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“the GST Act”).
B. Reverse charge. Under Division 83 of the GST Act, Customer agrees to pay the GST on all taxable supplies made by Yakk to Customer under or in connection with this Agreement.
C. Warranty and Indemnity. Customer represents and warrants that it is registered for GST. Customer will indemnify, defend, and hold harmless Yakk from and against any and all third-party claims, costs, damages, liabilities (including without limitation any tax impost, penalty, or interest charge), and expenses (including reasonable attorneys’ fees and costs) arising from a breach of this representation and warranty.
D. Termination of reverse charge arrangement. The reverse charge arrangement in Section B will cease to apply where either party gives notice in writing to the other party terminating the arrangement. The notice must specify the date of termination, which must be not less than 14 days after the notice is given.
E. GST recovery. This Section E applies where Section B does not apply or a reverse charge arrangement has been terminated. Where Yakk makes a taxable supply to Customer under or in connection with this Agreement, Customer must pay to Yakk an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressed to include GST). The additional amount must be paid by Customer at the date when any consideration for the taxable supply is first paid or provided.
F. Reimbursements, etc. Subject to an express provision in this agreement to the contrary, any payment, reimbursement, or indemnity required to be made to a party (the “Payee”) under this agreement which is calculated by reference to an amount paid or payable by the Payee to a third party (the “Outgoing”) will be calculated by reference to that Outgoing inclusive of GST, less the amount of any input tax credit which the Payee is entitled to claim on that Outgoing.
Information on our Cancellation Terms