Xtreme Websites (“Xtreme”) and Partners offer a variety of local marketing products (“Products”, “Platform”) that each include different features. If you, employees of your company, location managers (“You”) subscribe to, or purchase a Product which is part of our Online Reputation Suite, in addition to the Online Reputation Suite Terms (the “Master Agreement”), the associated terms apply to Your access and use of such Products.
- Relationships with Publishers
a) Publishers Included. Xtreme may add new publishers (“Publishers”) to your subscription to Listing Builder from time to time. If a Publisher that is included in your subscription to Listing Builder is dropped from Xtreme’s publisher network, or if that Publisher no longer accepts listings from clients that are not small businesses, then such Publisher will no longer be included in your subscription.
b) Location Data. Publishers that are included in a subscription may incorporate your location data within their databases and may make the location data available to their respective data clients both during and after the term of the Master Agreement. Notwithstanding anything herein to the contrary, certain features of Listing Builder (for example, synchronization and directory publication) may not apply to data aggregators, submission Publishers, or navigational Publishers.
c) Publishers’ Terms. You may be required by certain Publishers to agree to such Publishers’ terms and conditions or other policies regarding use of such Publisher Sites. In such event, if you wish to have your content published on such Publisher’s site, you hereby agree to comply with all such terms. Upon any actual or alleged failure to comply with such terms, in addition to our other rights and remedies, Xtreme will have the right to immediately suspend access to that Publisher or suspend provision of the applicable Product subscription(s) until such failure is cured by you and/or, if directed by the Publisher, to terminate the applicable Product subscription(s).
d) Locations. If you are subscribed to a Listing Builder package which allows international locations, then the locations you purchased a subscription for may be located in any country unless prohibited by law. If you are subscribed to a Listing Builder package which only allows locations in the United States, then the locations you purchased a subscription for may only be located in the United States of America.
- Emails, Marketing and Third-Party Content
a) Platform Usage. To the extent that Xtreme provides you with access to a Platform that: (1) provides you with the ability to monitor your customers’ reviews, from participating Publishers, by location; and (2) allows you to send review requests to your customers through our platform, you hereby agree that you shall use the Product and/or Beta only in accordance with these Product Terms and the Master Agreement. Access to any such Product and/or Beta is intended for your exclusive use. You may use such Product and/or Beta only in connection with your own customers concerning locations that are owned and operated by you. You may not use any such Product and/or Beta in any way that could potentially harm Xtreme and/or any third party, or to derive revenue or commercial gain from the use of the Product(s) and/or Beta(s) that offer such functionality.
b) Marketing Laws. You represent and warrant that all third party content, including but not limited to customer information and customer lists that you provide to Xtreme and any communications you send arising out of or in connection with your use of the Platform, is accurate and up to date and will be in compliance with all laws, rules or regulations including but not limited to 15 U.S.C. §§ 7701-7713 (the CAN-SPAM Act), 47 U.S.C. 227 (the Telephone Consumer Protection Act), Canada’s An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, SC 2010, c 23 (CASL), Data Protection Directive 95/46/EC, Privacy and Electronic Communications Directive 2002/58/EC and all national laws implementing such Directives and any and all relevant data privacy laws, rules, regulations, codes of practice and best practices (as may be amended, re-enacted or replaced from time to time) (collectively, “Marketing Laws”).
c) Marketing Laws Compliance. You further acknowledge that you are responsible for your own compliance with all applicable Marketing Laws in connection with your use of the Platform, and you represent and warrant that you comply with all such Marketing Laws. Accordingly, you represent, warrant and covenant that: (i) the customer lists were not created or shared with Xtreme in a manner that violates applicable Marketing Laws; (ii) each recipient has been given clear and conspicuous notice that his or her e-mail address and/or other contact information can be shared; and (iii) each recipient has given any required consent to receiving commercial e-mail and other forms of communication, including, but not limited to text messages; and (iv) you will be considered the sender of any communications under applicable Marketing Laws.
d) Text Messages. You will provide Xtreme with information and updates to customer information or opt-out requests promptly after receiving applicable requests under the Marketing Laws; You will ensure that any customer lists have been run against the most relevant suppression file operated by the relevant preference service and you will not provide Xtreme with any email addresses and/or other contact information, including, but not limited to phone numbers, that have previously opted out of receiving commercial messages from you; and you agree that Xtreme reserves the right to cap the number of emails and other forms of communication, including, but not limited to text messages, that may be sent using through or in connection with any Product(s) at its sole discretion.
e) User Content. You acknowledge and agree that the advice, opinions, offers, statements, or other information or other user content (e.g. in reviews) are those of their respective authors, and said authors are solely responsible for such reviews and that you are solely responsible for any data and/or content you submit through any Product(s).
- Access to Content
a) Access Consent. Some features may require Xtreme to access, on your behalf, Publisher accounts and, as applicable, to post content to and/or retrieve content from such accounts. By using a feature that requires Xtreme to access such accounts, you give Xtreme your consent and authorization to access such accounts and, as applicable, to post content to and retrieve content from such accounts.
b) Photos and Videos. Xtreme may offer features that allow you to link to and share public photos and videos posted on various social media sites (e.g. Instagram). For any photo or video collected via this feature that you display or link to, you hereby represent and warrant to Xtreme that you have the full legal right, power, and authority to share, display or link to such photo or video. You further represent and warrant that you will not use this feature in a manner that would be: (i) unlawful, or (ii) infringe, violate, or otherwise interfere with any intellectual property right, privacy right, or publicity rights of another party. Xtreme reserves the right to withdraw your access to this feature at any time and for any reason. You represent and warrant that you have obtained or procured any and all necessary rights and permissions to grant Xtreme the right to publish, transmit, display, use and host third-party content transmitted by you or on your behalf to Xtreme, in both a personally identifiable form and in a de-identified or aggregate form, to provide the Product and/or Beta to you.
OTHER PLATFORM RELATED TERMS
- European Customers
a) Data Controller. You agree that you shall be regarded as the data controller of the personal data of your customers which may be provided to Xtreme in connection with the review services. When providing the review services, Xtreme will act as a data processor in accordance with the applicable Marketing Laws. This entails that Xtreme must only act on instructions from the data controller in regards to the personal data about the end customers with the exclusive aim of performing the data controller’s obligations on its behalf. Xtreme will not communicate this personal data to any third parties, without the relevant data controller’s consent.
b) Personal Information. Xtreme shall take appropriate technical and organizational measures necessary to protect the personal information and to comply with the obligations of a data processor under applicable Marketing Laws. At your request, Xtreme shall, in line with and to the extent provided for in the Marketing Laws, supply you with sufficient information to confirm that the appropriate technical and organizational security measures have been made. Upon termination of the Master Agreement or these Product Terms, Xtreme shall on your written request return all personal data and copies thereof, or shall destroy all such personal data and copies thereof. Xtreme is authorized to keep the personal data duly blocked for the purposes of complying with applicable laws, providing the services hereby agreed, or in any case for as long as any responsibility may be derived for them from the Master Agreement or these Product Terms. You agree that Xtreme may use sub-processors in the provision of any part of the services.
- Beta Products
a) Beta Access. You understand and acknowledge that Xtreme may, at its option, provide certain products, features and services that are in development by Xtreme and/or not yet made generally available to the public (each a “Beta Product” or a “Beta Service” or a “Beta,” collectively “Beta Products,” or “Beta Services” or “Betas”). Betas are made available on an “AS IS” and “AS AVAILABLE” basis for the sole purpose of evaluating the Beta and providing Xtreme with feedback on the marketability, quality and usability of the Beta.
b) Beta Development. Xtreme may discontinue any Beta at any time in Xtreme’s sole discretion and may never make them generally available. Any feedback that you provide (on your behalf or on behalf of your Clients who have been given access to any Beta) in connection with your use of a Beta may be used, modified and/or incorporated by Xtreme in its sole discretion, including in its Products and documentation and you grant to Xtreme a perpetual, irrevocable, worldwide, non-exclusive, royalty free, sublicensable license to Xtreme to use any and all feedback, comments, and/or suggestions in Xtreme’s sole discretion with no obligation to you.
- Health Information
a) Xtreme’s Products do not involve the transmission or storage of Protected Health Information or Electronic Protected Health Information (collectively “PHI”) as defined by the Health Insurance Portability and Accountability Act (“HIPAA”).
b) You agree that in no event will Xtreme be deemed a Business Associate as defined by HIPAA and you will take all necessary steps to ensure that Xtreme is not deemed to be a Business Associate to you or to any of your agents, representatives, clients or end customer(s).
c) You further agree and covenant that (i) neither you nor any third party acting on your behalf will transmit or make available any PHI to Xtreme or its affiliates or representatives, (ii) if you become aware of any PHI in Xtreme’s possession or transmitted through or received from Xtreme’s platform due to your actions or omissions or any actions or omissions of your employees, agents, representatives, clients or end customers, you will immediately notify Xtreme in writing, and you agree that Xtreme may immediately and in its sole discretion remove all such PHI from its systems, and (iii) you will immediately inform Xtreme in writing in the event of, and will provide any information reasonably requested by Xtreme related to: (A) any event that would require a breach notification under 45 CFR 164.400-414, or any similar state breach notification rule, to any client referred to you by Xtreme (provided that you will not be required to provide such notification if and to the extent that, in the reasonable determination of its counsel, to do so would be a breach of the HIPAA Rules); (B) any claim, suit or governmental investigation or inquiry related to your obligations as a Business Associate and/or under HIPAA, and (C) any other event that could be reasonably expected to affect your abilities to carry out the obligations of a Business Associate, as set forth in HIPAA.
- Master Agreement Terms
If you and Xtreme have entered into a written Master Agreement with different terms that explicitly apply to any of the above Product(s) and/or features, then such terms will continue to apply to use of the applicable Product and/or feature. A violation of the Product Terms will be considered a material breach of the Master Agreement.
Xtreme cannot and does not: (i) guarantee the accuracy, usefulness, or completeness of any third-party content (e.g. reviews) or analytic content provided to you by Xtreme via the Platform; or (ii) endorse, adopt, or accept responsibility for the reliability or accuracy of any third-party content. Under no circumstances will Xtreme be responsible for any loss or damages resulting from your use of the Platform including but not limited to any loss or damages resulting from any information or other content made available in a review, or any analytics or any reliance thereupon.
Xtreme continues to innovate and update our Products and features and as such, these Product Terms may change from time to time. You should check back frequently to ensure that you understand all applicable policies and terms in these Product Terms and any changes hereto. In the event that Xtreme makes a material change or changes to these Product Terms that adversely impacts your rights under your Master Agreement, Xtreme will provide notice via contact’s client area.
(Last Updated December 4, 2017)