Reviews Product Terms
ReachLocal Australia Pty Limited (trading as LocaliQ)
Marketing Services Terms & Conditions
Reviews Product Terms
Last Modified: 14 August 2024
IMPORTANT: THESE ARE THE PRODUCT TERMS (THESE “REVIEWS TERMS”) PERTAINING TO ReachLocal Australia Pty Limited (trading as LocaliQ) REVIEWS SERVICE (THE “SERVICE”). THESE REVIEWS TERMS ARE REFERRED TO IN THE LOCALIQ MARKETING SERVICES TERMS AND CONDITIONS (THE “MARKETING SERVICES TERMS”) AND ARE INCORPORATED THEREIN.
PLEASE READ THIS CAREFULLY. YOUR EXECUTION OF AN ORDER FORM FOR MARKETING SERVICES WHICH INCLUDES THIS SERVICE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE REVIEWS TERMS.
IN THE EVENT OF A CONFLICT BETWEEN THESE REVIEWS TERMS AND THE MARKETING SERVICES TERMS AND/OR ORDER FORM, THE REVIEWS TERMS WILL CONTROL.
WE RESERVE THE RIGHT TO MAKE CHANGES TO THESE REVIEWS TERMS AT ANY TIME. WE WILL PROVIDE NOTIFICATION OF CHANGES IN THESE TERMS BY UPDATING THE LAST MODIFIED DATE SET FORTH ABOVE. ALL SUCH CHANGES WILL BE BINDING UPON YOU ONCE POSTED, UNLESS SUCH CHANGES ARE MATERIAL IN WHICH CASE SUCH CHANGES WILL NOT TAKE EFFECT UNTIL THE NEXT TIME YOU SIGN AN ORDER FORM WHICH INCLUDES THIS SERVIC
Terms not defined herein will have the meaning set forth in the Marketing Services Terms.
1. Description.
The Service provides a Platform for you to collect reviews from customers via email or SMS, customise your review responses with the assistance of AI and monitor multiple review sites (“Service Partners”) from a single dashboard. The platform also allows you to automatically reply to reviews based on rules you define.
The review site(s) (“Service Partners”) that can be managed through the platform are subject to connection of Client’s review site account(s) to the platform using Client’s credentials. The Service Partners that are available through the service may change from time to time at LocaliQ’s sole discretion.
1.1 Provision of Services.
LocaliQ will provide its subscription service through the a Service Providers Customer Experience & Reputation Marketing platform (the “Subscription Service”), and any professional services in relation to the implementation of the Subscription Service (the “Professional Services”; the Subscription Services and Professional Services may hereinafter be generally referred to as the “Services”) in accordance with these Terms and any terms and conditions provided for in a customer agreement, reseller agreement or order form for the Subscription Service (all such documents maybe be referred to as an “Order Form”) or a statement of work for the delivery of Professional Services (“Statement of Work”). Client understands, acknowledges and agrees that onboarding and implementation of the Services may take up to 2-3 hours over a 4 week period of time. Client’s reasonable and timely participation in the onboarding process is a vital component of delivering the Services and any delays in this process caused by Client will not affect the duration of any agreement and will not provide a basis for non-payment or termination.
1.2 Third Party Sites.
To the extent that Client requests or otherwise cause the Subscription Service to be integrated with, or make use of data from, other websites or services (e.g., Facebook, Google+ and Twitter) (“Third Party Sites”), Client agrees that LocaliQ and Service Providers do not have control over the terms of use, privacy policies, operation, intellectual property rights, performance, service levels or content of any Third Party Sites; and LocaliQ disclaims all responsibility and liability for any use of Third Party Sites. The Services incorporate or make the use of certain third party software (“Third Party Software”), which is licensed subject to the terms and conditions of the third party licensing such Third Party Software. Nothing in these Terms limits Client’s rights under, or grants Client rights that supersede, the terms and conditions of any applicable license for such Third Party Software. Such Third Party Software includes but is not limited to the following software and services and by use of the Services, Client agrees to be bound by the terms of said Third Party Software: Google https://policies.google.com/terms?hl=en-US, Facebook https://www.facebook.com/legal/terms, Twitter https://www.twitter.com/tos, Youtube https://www.youtube.com/t/terms, Twilio https://www.twilio.com/legal/tos, LinkedIn https://www.linkedin.com/legal/user-agreement.
Using Third Parties For Reviews.
Client understands that in order for its customers, end users or others to leave a review about its product or services on Google, Facebook, Twitter and similar third party sites, it may be required to have an active, registered account on the relevant third party platform.
1.3 Subscription Service Content.
During Client’s use of the Subscription Service, Client may receive data generated by the Subscription Service. Client may display such generated data on Client’s website but may not modify the data or otherwise use it for any other purposes, including without limitation analytics purposes, without LocaliQ’s prior express written approval. For purposes of clarification, data generated by the Subscription Service may include data and content that is owned or licensed by a third party, and Client’s use of such third party data and content is limited further by such third party’s applicable license terms and web site terms of use. LocaliQ hereby disclaims responsibility and/or liability in full for Client’s use of any such third party data and content under these Terms.
1.4 Obligations With Respect to Third Party Sites.
When using the Services, Client agrees to adhere to the Terms of Service of all major review sites. This includes but not limited to Google, Facebook, Yelp, and other review sites.
Review gating: Client’s use of the LocaliQ or Service Provider’s platform cannot implement any form of review gating. Review gating is a process where companies send a message to customers asking if their experience was positive or negative. Those who had a positive experience are directed to leave an online review. Those who had a negative experience are typically sent to a form to leave comments that are not made public.
When soliciting reviews using the LocaliQ platform, Client must provide all recipients the same options to provide feedback, regardless of their sentiment. This applies to review requests sent via standard review templates, custom email templates, and surveys.
Sites prohibiting solicitation of reviews: Client’s use of the LocaliQ platform will fully comply with sites such as Yelp that prohibit review solicitation, and Client will not misuse the LovcaliQ platform to bypass review sites’ policies.
Failure to comply with 3rd Party Review site policies: If Client attempts to circumvent the Terms of Service of 3rd party review sites, LocaliQ will notify Client and allow Client 30 days to take corrective action. Should Client fail to comply within the 30-day notice period, Client’s account will be suspended from LocaliQ and the Service Provider.
1.5 TCPA and 10DLC Compliance.
- TCPA: To the extent required by law and as applicable to the parties, the parties shall comply with the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). Client will be solely responsible for complying with any messaging consent obligations under the TCPA and TSR in the course of accessing and using the LocaliQ Services. Client is responsible for obtaining explicit consent(s) from any and all third parties (including Client’s customers) to send and receive SMS and/or emails using the LocaliQ Services. LocaliQ shall have the same obligation to obtain third party consent for all parties from which it is directly obtaining their phone number(s).
- 10DLC: You understand that if you are using certain SMS-related Services, you are responsible for complying with A2P 10DLC, including but not limited to registration and obtaining customer opt in. LocaliQ reserves the right to pass carrier 10DLC fees on to you which you agree LocaliQ may collect from you using your authorized payment method. Client authorizes LocaliQ to act as its legal representative in the 10DLC registration process when such representation is necessary to provide or enhance the Services.
You understand and agree that in order to use any texting or text-based products or features in or through the Services, you must maintain your A2P 10DLC registration by paying the one time registration fee and ongoing text (or, “campaign”) fees for the duration of your use of any such Services. If you are entering into an online or self-serve contract for a small business, the registration fee and ongoing text fees may be combined in one line item on your contract shown as “Carrier Texting Fees”.
Each party is liable for, and shall indemnify, defend and hold harmless the other party from and against any and all damages, liabilities, judgments, fees, fines, costs and expenses (including reasonable attorneys’ fees) incurred by the non-breaching party arising from any claims, demands or legal actions made against it resulting from Client’s breach of this Section 1.5.
1.6 Account Protection.
In the event that Client become aware that the security of Client’s login information has been compromised or breached, Client must immediately deactivate such account or change the account’s login credentials. Additionally, Client shall promptly deactivate the account or change the login credentials for any individual (e.g., former employee) that no longer is authorized by Client to access the Subscription Service.
1.7 Fair Use.
LocaliQ’s and the Service Provider’s priority to its customers is to keep the Services available and running at optimal speed, which requires each customer to use the Services fairly and reasonably so as to not affect the access or use by other customers. The Services include broad access to a variety of resources such as bandwidth, API requests, and storage which are not unlimited (unless expressly stated as such in a Customer Agreement, Order Form or other agreement) or the overuse of which would affect the stability of the LocaliQ platform, including but not limited to the Services, which is why we have this fair use clause (“Fair Use Policy” or “FUP”). Fair use will be considered the processing of 3 times the average number of requests or processed transactions per Location (as that term is defined in a Customer Agreement, Order Form or other written agreement) for other LocaliQ customers in the same or similar industry. If LocaliQ determines Client’s use of the Services is in violation of its Fair Use Policy, in its sole reasonable discretion, it may take unilateral action regarding Client’s use of the Services including, but not limited to, limiting the frequency of access to the Services or limiting the number of processed requests through the Services in order to bring usage in line with this FUP. LocaliQ also reserves the right to invoice Client for use of the Services in violation of the FUP. Client understands, acknowledge and agree that LocaliQ will have no liability to Client or any of Client’s users for enforcing this FUP and enforcement will not affect Client’s obligations under these terms which includes the payment of fees for the Services.
1.8 Client’s Restrictions on Use of Services.
Client agrees not to do any of the following while using the Site, Services or LocaliQ Content:
Access, post, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, vulgar or offensive; (v) constitutes child pornography or child erotica; (vi) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any other person; or (viii) promotes illegal or harmful activities or substances (including, but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances).
Use, display, mirror, frame or utilize framing techniques to enclose the Site or Services, or any individual element or materials within the Site or Services, LocaliQ’s name, any LocaliQ trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without LocaliQ’s express written consent;
Access, tamper with, or use non-public areas of the Site or Services, LocaliQ’s computer systems, or the technical delivery systems of LocaliQ’s providers;
Attempt to probe, scan, or test the vulnerability of any LocvaliQ system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by LocaliQ or any of LocaliQ’s providers or any other third party (including another user) to protect the Site, Services or LocaliQ Content;
Attempt to access or search the Site, Services or LocaliQ Content or download LocaliQ Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by LocaliQ or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera);
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use or access the Services for the purpose of, or resulting in, the posting, publication, distribution or transmission of defamatory material or content;
Send any emails or text communications for purposes of marketing or promoting non-federally legalized products or services or if such communications are barred by relevant industry associations. For example, Client will not send text messages through the Services if Client is in the cannabis industry, the firearms business or any other illegal or association-prohibited industry;
Use any meta tags or other hidden text or metadata utilizing an LocaliQ trademark, logo URL or product name without LocaliQ’s express written consent;
Use the Site, Services or LocaliQ Content for the purpose of bringing an intellectual property infringement claim against LocaliQ or for the purpose of creating a product or service competitive with the Services;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or LocaliQ Content to send altered, deceptive or false source- identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or LocaliQ Content;
Interfere with, or attempt to interfere with, the access of any user, host or network connected to the Site or Services, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
Impersonate or misrepresent Client’s affiliation with any person or entity;
Violate any applicable law or regulation;
LocaliQ will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Site and Services security issues, to the fullest extent of the law. LocaliQ may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. Client acknowledges that LocaliQ has no obligation to monitor Client’s access to or use of the Site, Services or LocaliQ Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Services, to ensure Client’s compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. LocaliQ reserves the right, at any time and without prior notice, to remove or disable access to any LocaliQ Content and any User Content, that LocaliQ, in its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site or Services.
2. Fees.
You agree to pay the amounts set forth on the Order Form and/or the sign-up page. Your “billing period” will be specified by LocaliQ at the time of registration for the Service, though LocaliQ reserves the right to change the term of future billing periods at any time. If you signed up for the Service as part of a promotion, please refer to the terms of such promotion to determine the pricing and details of such promotion.
3. Term.
The Service shall continue through the completion of the initial number of Cycles set forth on the Order Form (the “Initial Term” which will be 12 cycles, unless stipulated on the insertion order). Thereafter, the Service will automatically renew cycle upon cycle (each a “Renewal Term”), unless you provide notice of cancellation as set forth below. In the event of a promotion, the duration of the promotional term will be considered the “Initial Term” and the period remaining in the 12 Cycle term after the promotional term will be considered a “Renewal Term.” Each “Cycle” of the Service consists of 30 days.
4. Limitations.
You acknowledge and agree that (i) all content submitted for the Service will be subject to the Service Partners’ character limits, quality standards and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Service Partner at any time in its sole discretion, or modified at any time to comply with such policies, (ii) LocaliQ does not guarantee that any Reviews content will be displayed on any Service Partner’s site, and (iii) the appearance and/or location of any Reviews content placement may change at any time, and (iv) the posting or updating of your content on Service Partners’ sites may be delayed for reasons beyond LocaliQ’s control. NEITHER LOCALIQ NOR ITS LICENSORS WILL HAVE ANY LIABILITY FOR THE AVAILABILITY OF OR ANY CHANGE IN THE SERVICE PARTNER SITES, FOR ANY DECISION BY A SERVICE PARTNER TO REJECT OR MODIFY ANY CONTENT SUBMITTED BY YOU, OR FOR ANY OTHER DECISION, CHANGE OR OTHER ACTION DESCRIBED IN CLAUSES (i), (ii) OR (iii) OF THE PRECEDING SENTENCE, WHETHER OR NOT SUCH ACTION IS TAKEN BY THE SERVICE PARTNER IN ACCORDANCE WITH ITS APPLICABLE TERMS, CONDITIONS OR OTHER POLICIES.
5. Use of the Service.
License.
LocaliQ hereby grants you a limited, non-exclusive, non-transferable right and license to access and use the Service solely in connection with your legitimate business needs. This license will terminate upon the cancellation or termination of your subscription, in which case you will immediately cease any further use of the Service.
Ownership.
All intellectual property rights in and to the Service are and will inure to LocaliQ and/or its various third party licensors and partners. Nothing herein will be construed as granting, by implication, estoppel, or otherwise, any license or right to use any LocaliQ trademark displayed on the LocaliQ service without LocaliQ’s prior written consent. The appearance of any third-party trademarks does not in any way imply any connection, license, approval or other such relationship of any kind with such third party.
Usage Restrictions.
Your use of the Service is limited solely to those rights granted in Section 5(a). You will not copy, prepare derivative works, decompile or reverse engineer the Service. You will not remove any trademark, copyright, or other proprietary right notices which appear on the Service. In addition, you will not use the Service for any unlawful or fraudulent purpose including, but not limited to: (i) impersonating any person or entity, (ii) harvesting or collecting any personal information in violation of applicable law or (iii) promoting any product, service or business that is unethical, obscene or in violation of any applicable law or regulation. You acknowledge and agree that (A) all content submitted for the Service will be subject to the Service Partners’ character limits, quality standards and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Service Partner at any time in its sole discretion, or modified at any time to comply with such policies, (B) LocaliQ does not guarantee that any Reviews content will be displayed on any Service Partner site, and (C) the appearance and/or location of any Reviews content placement may change at any time.
License to Your Content.
You hereby grant to LocaliQ and its licensors in connection with the Service a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of LocaliQ or its licensors’ business), perpetual, irrevocable right and license to use, copy, publish, distribute, syndicate, reformat and update (for example, to improve accuracy and/or standardise formats) any and all listing content and other content that is provided by or on behalf of you in connection with your use of the Service. LocaliQ may sublicense this right to any Service Partners and other online partners. This license will survive any termination or expiration of this Agreement.
Removal.
Because of the interconnected nature of Service Partner sites with other web sites and services, your content posted to such sites may be difficult to remove. For example, your content that is removed from a Service Partner site may persist on other web sites (including end-user web pages) or may be cached in search engine indexes. Accordingly, although LocaliQ will use commercially reasonable efforts to remove your content from Service Partner sites when requested by you, LocaliQ cannot guarantee such removal.
Platform Providers.
LocaliQ may use one or more third party providers in order to offer the Services described hereunder, including as a source of record for your business listing information. Each such third party provider expressly disclaims any express and implied warranties and excludes all liabilities to the fullest extent permitted under applicable law. In addition to coverage under Section 14 of the Marketing Services Terms, each such third party will also be deemed to be an intended third party beneficiary of these Product Terms. Further, Service Partners may make your business information available to their data customers.
6. Review Monitoring.
To the extent included in your Reviews Service, review monitoring services (“Review Monitoring Services”) collects reviews with respect to your locations from the Service Partner sites (“Reviews”) and allows you to access and respond to your Reviews on through the Service. By ordering the Review Service, you (a) authorise us to use your content and location data to search the Service Partner sites and to find and manage your content and location data on the Service Partner sites, using any tools available; (b) acknowledge that publicly available content (including user content) is gathered by the Review Monitoring Service from various websites and is stored and used to provide the Review Monitoring Service and agree that you are requesting us as your agent to aggregate and present you the Reviews, including any content and location data associated therewith and any customer and/or user information included therein, including any personally identifiable information of such parties; and (c) our possession and use of the Reviews on your behalf to deliver the Services will not violate any agreement or applicable laws, rules and regulations. The Review Service is provided solely on an as-is basis and may not capture all reviews provided on the Service Partner sites. You further acknowledge and agree that you will not use the Review Services to violate any policies and laws, including those related to (i) unsolicited emails, spamming, privacy, obscenity, or defamation, copyright and trademark infringement, child protective email address registry laws or the advertisement of regulated products or services, including those subject to the Health Insurance Portability and Accountability Act and regulations thereunder, (ii) advertising, sales or promotional efforts or practices, redemption, refunds and provision of your products or services, (iii) false, unfair and deceptive practices, coupons, gift cards/certificates, defective products or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards, or (iv) lotteries, sweepstakes, contests and promotions or laws that govern the collection of donations and charitable giving.
7. Special Terms – Facebook.
If content is placed on your existing Facebook business page as part of the Service, you hereby agree to, and agree to comply with (and to ensure that all content that you provide to LocaliQ with respect to such Facebook listing complies with) Facebook’s then-current “Statement of Rights and Responsibilities” (currently located at https://www.facebook.com/legal/terms) and any other applicable terms and conditions and policies of Facebook (collectively, the “Facebook Terms”). Any actual or alleged failure of you, or of any of your content, to comply with the Facebook Terms will constitute a material breach of this Agreement, and LocaliQ will have the right to immediately suspend provision of the Facebook listing until such failure is cured by you and/or, if directed by Facebook, to terminate the provision of the Facebook listing to you. In addition to your indemnity obligations set forth in the Marketing Terms, you will defend, indemnify and hold harmless LocaliQ and its licensors from and against any and all claims, actions, losses, liability, damages, fines, costs, and expenses (including reasonable attorneys’ fees and expenses) arising from or related to any asserted breach of the Facebook Terms by you and/or the content of any of your Facebook pages.
8. PROPRIETARY RIGHTS
8.1 Ownership; License; Retained Rights.
LocaliQ and Service Partner owns all right, title, and interest in and to the Subscription Service, including, without limitation, all modifications, improvements, enhancements, integrations, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein (“Rights”), and any and all Rights developed as part of the delivery and receipt of the Professional Services. LocaliQ and related Service Partners grant the Client a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Subscription Service, and any deliverables developed pursuant to the delivery of Professional Services hereunder in relation to Client’s use of the Service, for the term of the applicable Order Form or Statement of Work. All rights not expressly granted to Client hereunder are reserved by LocaliQ.
8.2 Restrictions.
Unless otherwise permitted in writing by LocaliQ, Client may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Subscription Service; (ii) use, evaluate or view the Subscription Service for the purpose of designing or creating a product or service competitive to LocaliQ’s and Service Partners products or services; and/or (iii) resell or use the Subscription Service in a service bureau.
8.3 Data Collection, Ownership, and Use – Additional.
8.3.1 Client Data.
During the term of this Agreement or any Order Form or Statement of Work, Client grants LocaliQ and Service Providers a limited, non-exclusive, royalty-free, revocable, world-wide license to use and disclose, as necessary to provide the Subscription Service and Professional Services, all information submitted by Client and Client’s end users in connection with Client’s use of the Subscription Service (e.g., Personal Data, submitted content, product information included in feeds, transaction detail information such as unit prices and cart values, and survey data) (“Client Data”). Client owns all Client Data. Nothing contained herein shall be construed as granting LocaliQ ownership in any Client Data. Client hereby give LocaliQ and Service Providers a non-revocable, worldwide, royalty right to use aggregated or anonymized Client Data for internal evaluation purposes only; LocaliQ and Service Providers will never market or sell Client Data to any third party.
Client understands, acknowledges and agrees that LocaliQ and Service Providers may only be able to access its Client Data through managed services (or, “Managed Services”) in order to provide the Services. In order for LocaliQ to perform the Managed Services, Client agrees to provide LocaliQ and Service Providers with login credentials to its CRM. Furthermore, the Managed Services process involves a member of the LovcaliQ team logging into the CRM, downloading a report that will include Client Data and then uploading said Client Data to the LocaliQ platform. If being utilized, the Managed Services will be performed weekly as a default although Client can request that the timing be adjusted to as short a time as 48 hours upon reasonable request. All personnel are subject to in-depth, annual privacy and data security training and assessments.
8.3.2 LocaliQ Data.
All data generated, stored or collected by LocaliQ and third party technologies which is not Client Data is owned by LocaliQ and its Service Providers (“LocaliQ Data”). LocaliQ Data includes, but is not limited to, all review data posted to a LocaliQ microsite. Client shall have a limited, perpetual license to use such LocaliQ Data generated by the Subscription Service, subject to Section 3.3.3 of these Terms.
8.3.3 Third Party Data.
Data generated by the Subscription Service may include data and content that is owned or licensed by a third party, and Client’s use of such third party data and content is limited by such third party’s applicable license terms and web site terms of use. LocaliQ and third party service providers, hereby disclaims responsibility and/or liability in full for Client’s use of any such third party data and content under this Terms. Such third party data and content will be promptly destroyed, and Client shall otherwise no longer have access to such third party data and content, upon termination of these Terms or termination of the applicable Order Form or Statement of Work.
8.4 Privacy Policy; Personal Data; Security.
The collection, use and storage of Personal Data (as defined in the DPA) through the website is governed by LocaliQ’s privacy policy located at Privacy Policy, (Privacy Policy for Our Marketing Agency in Australia (localiq.au)
During the term of this Agreement, LocaliQ and Service Partners shall maintain a security program materially in accordance with industry standards that is designed to: (i) ensure the security of Client Data; (ii) protect against threats or hazards to the security or integrity of Client Data; and (iii) prevent unauthorized access to Client Data. If either party believes that there has been a security breach involving Client Data, such party must promptly notify the other party, unless legally prohibited from doing so. Additionally, each party will reasonably assist the other party in mitigating any potential damage arising from any such security breach. As soon as reasonably practicable after any such security breach, LocaliQ with any 3rd party providers shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with Client.
9. WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY
9.1 LocaliQ Warranty.
LocaliQ represents and warrants that (i) it has all right, title, and interest necessary to provide the Subscription Service and Professional Services to Client under the terms set forth in these Terms and each Order Form or Statement of Work; (ii) the Subscription Service will perform materially in accordance with the terms of this Agreement; (iii) the functionality of the Subscription Service will not be materially decreased during the term of this Agreement; (iv) LocaliQ shall use industry standard virus protection designed to prevent any viruses, time bombs or other disabling code from the Subscription Service; and (v) it shall comply with all laws applicable to it in its provision of the Subscription Service. Additionally, LocaliQ shall perform the Professional Services in a professional and workmanlike manner in accordance with applicable industry standards.
9.2 Client’s Warranty.
Client represents and warrant that (i) Client have any and all consents and authorizations as may be necessary for the Client to receive the Subscription Service and/or Professional Services; (ii) each of the sites where the Subscription Service is deployed contains a privacy policy that discloses the usage of third-party technology and the data collection and usage resulting from the Subscription Service (it being understood that this clause will not be deemed to require those privacy policies to expressly identify LocaliQ or any Subscription Service, unless otherwise required by law, rule or regulation) and complies with all applicable privacy laws, rules and regulations; (iii) Client’s websites upon which the Subscription Service is deployed do not contain any material which is defamatory, promotes illegal activity, or contains hate speech; and (iv) Client have legally obtained necessary ownership or license rights to any Client Data, including Personal Data, and that Client have any waivers and/or opt-in agreements in place with authorized users and Client customers that are required by applicable law in relation to the communications to be sent to such users and customers by LocaliQ and the Subscription Service under this Terms.
9.3 Warranty Disclaimer.
EXCEPT AS SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING. LOCALIQ DOES NOT WARRANT, OR OTHERWISE PROMISE, THAT THE USE OF ITS SERVICES WILL INCREASE CLIENT’S RANKING POSITIONS ON GOOGLE OR ANY OTHER SEARCH ENGINE.
9.4 Limitations of Liability.
EXCEPT AS SET FORTH BELOW, THE LIMITATIONS OF LIABILITY IN SECTIONS 4.4.1 AND 4.4.2 WILL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ALSO APPLY REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH DAMAGES ARE SOUGHT. IN NO EVENT WILL THE LIMITATIONS APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE TERMS. BOTH PARTIES SHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHER PARTY IS RESPONSIBLE. HOWEVER, IN NO EVENT WILL THE LIMITATIONS APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.4.1 No Special Damages.
EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, OF ANY PARTY, INCLUDING THIRD PARTIES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE FOREGOING.
9.4.2 Liability Cap.
EXCEPT FOR CLAIMS ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, INDEMNITY OBLIGATIONS OF THESE TERMS WITH RESPECT TO CLIENT’S OBLIGATION TO PAY UNDISPUTED FEES UNDER THESE TERMS, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THIS Terms EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY EITHER PARTY UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. If Client is located in Australia, pursuant to section 64A of the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (“CCA”)), if and to the extent that Client have acquired the Service as a ‘consumer’ (as defined in section 3 of the Australian Consumer Law), LocaliQ’s and Service Partners liability to Client under each of sections 60, 61 and 62 of the Australian Consumer Law is limited to either supplying the Services again or payment of the cost of having the Services supplied again. Nothing in these Terms excludes, restricts or modifies or purports to exclude, restrict or modify any guarantee that applies pursuant to the Australian Consumer Law or any other provision of the CCA which cannot be lawfully excluded, restricted or modified.
9.5 Client’s Indemnity.
Client shall indemnify, defend, and hold harmless LocaliQ, its Service Providers, officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement Terms, from a third party’s claim that arises out of a third party’s claim that Client’s website on which the Subscription Service is provided or any application Client develop infringes any intellectual property rights.
9.6 LocaliQ Indemnity.
LocaliQ and related Service Partners have no obligation to indemnify Client for a claim of infringement to the extent it arises from: (i) infringing matter supplied or developed solely by Client; (ii) unauthorized modifications or uses of the Subscription Service; or (iii) Client’s acts or omissions not in accordance with the terms of this Agreement. If Client’s use of the Subscription Service is enjoined or is likely to be enjoined due to a third party claim of infringement for which LocaliQ is required to indemnify Client under these Terms then LocaliQ may, at its sole cost and expense and within its sole discretion, do one of the following: (x) procure for Client the right to continue using the Subscription Service; (y) replace or modify the enjoined Subscription Service to make it non-infringing but functionally equivalent; or (z) terminate the enjoined Subscription Service and return any fees paid for enjoined Subscription Service not yet rendered
10. Miscellaneous
10.1 Export.
Client may not export or re-export any software included within the Subscription Service, either directly or indirectly, without receiving LocaliQ’s written consent and any required license from the applicable governmental agency.
11. Free Trials
LocaliQ will from time to time make certain Services available for free use for a period of time. This Section 11, the “Free Trial Terms,” will apply to your use of designated Services which may be offered to you as a part of a specific program or initiative to provide the Services free of charge (a “Free Trial”). The designated Services will be set forth on a specific page, notification, or pop-up on our website or by email (“Free Trial Offer”). By choosing to take advantage of the Free Trial you expressly are agreeing to be bound by these Free Trial Terms. Any and all Free Trials of designated Services shall be only for your internal, non-commercial use. Your Free Trial of a Service may or may not include all of the features included in a Service, at LocaliQ’s sole discretion. Your Free Trial will start on the date that you either accept these Free Trial Terms or the date on which you are provided access to the designated Services, whichever is earlier (“Free Trial Start Date”). The Free Trial shall be for 30 days unless otherwise stated in the Free Trial Offer and your usage of the Services may be limited by the Free Trial Offer. LocaliQ is entitled to terminate your access to the Services at the end of the Free Trial Period without notice and without liability unless you have entered into an agreement with LocaliQ for paid usage of the Service prior to the end of the Free Trial. If you are in breach of these Free Trial Terms, in its sole discretion, LocaliQ may terminate your access to the Services immediately, without notice and without liability. In the event of any conflict between these Free Trial Terms and the general Terms & Conditions (as set forth in Sections 1 -8 above), these Free Trial Terms shall control.
Appendix A: Additional Terms for Clients
A1. SMS Services Requirements.
Client understands and accepts that in order to use SMS-based Services, it will be required to register a mobile phone number on its behalf. In order to obtain a registered number, LocaliQ will require a copy of the Client’s business registration and a utility bill or equivalent that is in the name of the business.
Last updated on August 14, 2024