Client shall provide Provider with the following information prior to start of the Subscription Period: (i) applicable location name(s), (ii) location website(s), (iii) the names of three of Client’s competitors, and (iv) e-mail addresses of all Users (together the “Setup Information”). If Client does not provide the Setup Information in due time this does neither affect the start of the Subscription Period nor the obligation of Client to pay the agreed fees.
Client acknowledges that with regard to reviews and other content submitted by users on third party sites (“External Content”), Provider only aggregates, analyzes and provides, but does not create or generate such External Content underlying the Services, and that information furnished by Provider based on External Content represents the opinions of others and may contain inaccuracies, libelous material, profanity, and pornography. Provider may block certain comments using specific keywords, and Client will have the ability to control the blocking of key words.
Client is obliged to keep the access data and passwords secret and not to make them accessible to unauthorized third parties or persons that are not defined as Users. In addition, the Client shall ensure that the Users entitled under the Agreement also comply with this obligation. If the Client becomes aware of the misuse of access data or a password, the Client will immediately stop the misuse and inform Provider. In case of misuse, Provider is entitled to block access to the Services, if necessary, after prior warning. Client is liable to Provider for any misuse for which Client is responsible.
Client understands and acknowledges that the Services and the information provided in connection therewith are for Client´s internal review, analysis, and research only, and Client agrees, represents, and warrants to not redistribute such information, in whole or in part, to others, and agrees not to publish or make publicly available (except for publishing or making available on Client´s own website through the Provider´s Marketing Widget), broadcast, or sell any materials received hereunder.
Client undertakes not to infringe on any copyrights, other rights or proprietary interests of any third party by which data or other information accessible via the Services was generated.
If Client makes use of Provider´s Services to collect reviews from Client´s customers, the Parties agree that such reviews shall be provided independently and uninfluenced. Client shall not solicit reviews from customers by use of means which might reasonably be expected to impair or unduly influence the judgment of the reviewer and therefore the accuracy or veracity of the review. Practices that are deemed likely to so impair or influence a review include, without limitation:
- Compensation payable to the reviewer which is dependent on the content of the review or which constitutes an immoderate incentive;
- Exerting pressure on guests to alter or withdraw a review, including through unjustified threat of legal action;
- Offering incentives for positive reviews, or for changing negative reviews;
- Soliciting or knowingly publishing reviews created by people other than guests, or by insiders or other parties affiliated with Client; and
- Soliciting reviews only from guests already identified as satisfied or otherwise likely to post a positive review.
Client undertakes that its or any User´s access to and use of the Services in accordance with the Specific and these General Terms will comply with all applicable laws, rules and regulations, including but not limited to those that relate to data protection and electronic communications. Client further warrants that it or any User has all necessary permissions and consents – if necessary – to allow Provider to receive and process Client Content (in particular guest data provided by Client to Provider) and to send communications (e.g. via email or SMS) to individuals on Client’s or any User´s behalf. Client is responsible for ensuring that Client and any User meet all information, notice and consent obligations for processing personal information and sending communications to individuals in the jurisdictions where they reside. Client is solely responsible for determining whether the Services are suitable for Client or any User to use in light of any laws and regulations that govern Client or any User, its industry, or its relationship with its customers, including but not limited to consumer protection, privacy, advertising, intellectual property or other laws. Client may not use the Services for any unlawful or discriminatory activities.
The Client undertakes, upon request, to provide Provider with copies of documents or acknowledged digital information evidencing compliance with applicable legal requirements, e.g. – where required – consent of the guest i) to be contacted through the used channel, in particular email or direct messaging, for the purpose of Survey Mails or Live Messaging, and ii) to processing of its personal information by the Client and Provider for the purpose of Survey or Messaging. Provider may suspend Survey and Messaging applications temporarily or permanently at any time without prior notice if i) it considers that the Client’s undertakings regarding – where required by law – consent collection from or information of the consumer by the Client or any User are not sufficient to guarantee compliance with applicable laws; or ii) if there occur complaints from guests or other third parties questioning the lawfulness of the emails or messages received through Survey or Messaging application or the underlying data processing processes.
Client undertakes to indemnify, defend, and hold harmless Provider and its employees and agents from and against any and all claims, suits, actions, costs, damages, expenses (including, but not limited to, reasonable legal costs) and losses incurred by any of such parties arising out of or related to or occurring in connection with (i) Client’s or any User´s breach of any of its obligations arising out of or in connection with the Agreement, including Client’s publication, making publicly available, transmission, delivery, or other use of any information or material contained in the Services or provided or furnished to Client or any User pursuant to the Agreement, (ii) Client’s or any User´s access to and use of the Services; (iii) any Client Content (as defined below); and (iv) Client’s or any User´s violation or infringement of any rights of any third party (including intellectual property rights or privacy rights).
Upon written request from Provider, Client shall promptly defend or settle such claim, suit, or action at Client’s sole expense through counsel reasonably acceptable to Provider; provided, however, Client may not settle or compromise any claim without the prior written consent of Provider, which consent shall not be unreasonably withheld.
In the event Client elects not to defend any claim hereunder, Provider may settle or defend such claim, and shall be entitled to recover from Client the amount of any final settlement or judgment, as well as all costs and fees incurred by Provider in connection with such settlement or defense, including reasonable attorney’s fees and expenses.
The foregoing notwithstanding, nothing herein shall prevent Provider, in its sole discretion, from defending or settling any such claim, suit or action at its own expense and through its own counsel.