Terms of Use

PLEASE READ THESE TERMS OF USE CAREFULLY.  THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, AS WELL AS EXCLUSIONS AND LIMITATIONS ON YOUR LIABILITY.

Welcome to www.getevocative.com and www.myevocative.com, owned and operated by Nextopia Software Corporation.  Evocative is a social commerce platform that increases profit through the use of User Generated Content (“UGC”).  By using our website and services, you are agreeing to comply with and be bound by the following Terms of Use.  You may be subject to additional terms when using particular services, which are incorporated by reference into these Terms of Use.  Please review the following terms carefully before accessing our website or using our services, including any social media services accessible through our website or via a social media application programming interface (“API”).  If you do not agree to these Terms of Use, you must not use our website or services.

The term “Nextopia”, “we”, or “our” refers to Nextopia Software Corporation and any of its affiliates that are authorized to use Nextopia’s name or trade-marks.  The term “you” refers to the users of our services or viewers of our website.  “API” refers to application programming interface.  The term “services” includes, without limitation, use of the Evocative API platform.

  1. Description of Services

The API Evocative platform allows users, e.g. brand companies, to identify UGC on social media platforms, such as Instagram, Twitter, Facebook, Snapchat and Pinterest, and to connect to the creators of the UGC in order to obtain permission to use the UCG for the users’ desired purpose.  UGC may include user photos, text, graphics, audio, video location information and comments.  Users of our services may use UGC for marketing, promotional, advertising or other customer engagement purposes, in accordance with these Terms of Use.

  1. Limited License and Permitted Use

By using our website or downloading any software made available through our website, or otherwise affiliated with the services we provide, you agree to comply with these Terms of Use.  Nextopia is not responsible for the accuracy or legality of any UGC.  The inclusion of UGC on your website, on third party websites or otherwise in any other media does not imply Nextopia’s endorsement of the UGC.

We do not claim any ownership of any UGC.  You are responsible for obtaining the necessary rights for the use of any UGC directly from the owner of those rights.  You are solely responsible for any UGC used, submitted, distributed or transmitted by you.  You represent and warrant that you have obtained full legal right, power and authority to use any UGC used by you from the owner of the rights in and to the UGC.  You further represent and warrant that no UGC used, submitted, distributed or transmitted by you infringes, violates or otherwise interferes with any right, including privacy and intellectual property rights, of any third party.

You are granted a non-exclusive, non-transferable, revocable license (a) to access and use our website and services solely in accordance with these Terms of Use; and (b) to print out discrete information from our website solely for internal, personal, non-commercial purposes.

The content, organization, graphics, images, logos, icons, audio clips, design, software, compilations, magnetic translation, digital conversion and other matters related to our website and services are protected under applicable copyrights, trademark, patent and other proprietary (including but not limited to intellectual property) laws and regulations.  The copying, redistribution, use or publication by you of any such materials or any part of our website, except as explicitly permitted under these Terms of Use, is strictly prohibited.  You do not acquire any ownership rights to any material viewed through our websites or accessible through the use of our services or viewed through our website, except as explicitly provided for under these Terms of Use or otherwise agreed to between the relevant parties.  The posting of information or materials on our website does not constitute a waiver by us of any right in such information or materials.  Some of the content on our website may be copyrighted work or otherwise proprietary material of third parties.

  1. Restrictions and Prohibitions on Use

Nextopia owns all legal rights to our website and any information, material or documents contained on our website (collectively referred to as “Materials”).  Your license for access and use of our website and services, and any Materials, is subject to the following restrictions and prohibitions. You may not: (a) copy, print (except for the express limited purpose permitted herein), republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of our website or any Materials retrieved therefrom; (b) use our website or any Materials to develop, including as a component, any information, database, information base, or similar resource, in any media whatsoever, that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (c) create compilations or derivative works of any Materials; (d) use any Materials in any manner that may infringe any copyright, intellectual property right, proprietary right, or property right of use or any third parties; (e) remove, change or obscure any copyright notice or other proprietary notice or Terms of Use contained in our website; (f) remove, decompile, disassemble or reverse engineer any portion of our website or any software associated with our services; (h) use any automatic or manual process to harvest information from our website; (i) use our website for the purpose of gathering information for or transmitting unsolicited commercial messages; or (j) use our website in a manner that violates any applicable law or regulation or interferes with or disrupts Nextopia or the network(s) that support our website and services.

You are entirely responsible for maintaining the confidentiality of your login ID and password used for any activity on this website or associated with our services, and for any and all activity that occurs under your account as a result of you failing to keep this information secure and confidential.  You agree to notify us immediately of any unauthorized use of your account or password, or any other breach of security about which you become aware.  You may be held liable for losses incurred by us or any other use of our website or services due to someone else using your account as a result of your failing to keep your account information secure and confidential.  You may not use anyone else’s password or account at any time without our express permission and consent.  We shall not be liable for any loss or damage arising from your failure to comply with these obligations.

Nextopia is required to comply with Instagram’s API terms, and may be required to comply with other API terms of other social media platforms, including but not limited to Twitter, Facebook, Snapchat, and Pinterest.  You must ensure that your use of our website, software and services does not violate those terms.  We reserve the right to make changes to these Terms of Use at any time, should there be any change in any terms to which Nextopia is bound.

Use of our website, software or services for the purpose of external market research or otherwise in an attempt to have users disclose any information, including by organizations conducted mystery shopping, pretexting and social engineering, is strictly prohibited.

Competitors of Nextopia and anyone who has any intention of, or is currently, developing, either alone or in conjunction with other parties, or offering for purchase or sale, or who has previously developed or offered for purchase or sale, any product, platform or service similar to the Evocative API platform is strictly prohibited from accessing or using the Evocative API platform for any purpose whatsoever, including, without limitation, copying the Evocative API platform software or interface, or any portion thereof, including the Evocative digital dashboard viewable through the use of the Evocative API platform.

  1. Privacy
    You are responsible for obtaining permission to collect, use, disclose and store any personal information associated with any UGC directly from the owner of the rights in and to the UGC.

Any personal information you provide to us will be collected, used and disclosed in accordance with our Privacy Policy.  Information about your use of our website or services may be included in an anonymized fashion in aggregate reports generated for marketing purposes, or for other business purposes.  You agree that through your use and access to our website or services, you consent to the collection, use and disclosure of your information, in accordance with our Privacy Policy, including the transfer of information to countries other than your country of residence for storage, processing and use by Nextopia or its affiliates.

We may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the website, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) our rights or property, or the rights or property of visitors to or users of our website, including other user of our website.  We reserve the right at all times to disclose any information that we deem necessary to comply with any applicable law, regulation, legal process or governmental request.

  1. Fees

Fees and other charges for the use of our services are set out on our website.  The fee structure may change from time to time.  If the fees applicable to your use of our services changes, we will provide you with 30 days’ notice by e-mail or by notice when you log into our website or software platform, after which your continued use of our services will constitute your agreement to the new fees.  Failure to dispute any fees or charges within 30 days of the date the fees or charges are invoiced or otherwise charged to your account constitutes your acceptance of the fees and charges.

You are responsible for all applicable taxes associated with your use of our services, including any applicable taxes associated with our fees or other charges you may incur through the use of our services.

  1. Third Party Content

Third party content may appear on our website or may be accessible via links from our website or through the use of our services.  We are not responsible for and assume no liability for any third party content.  You understand that the information and opinions in the third party content represent solely the thoughts of the author and are neither endorsed by nor do they necessarily reflect our belief.  Please review carefully the third party’s policies and practices to make sure you understand them before you engage in any transaction.  Complaints, claims, concerns, or questions regarding third-party products should be directed to the applicable third party.

  1. Disclaimer

ALL CONTENT AND SERVICES AVAILABLE THROUGH OUR WEBSITE ARE PROVIDED “AS IS” WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED.  IN PARTICULAR, NEXTOPIA MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE OF THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE WEBSITE OR ANY CONTENT.

EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS OF USE, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES REGARDING THE WEBSITE, OUR SERVICES OR ANY CONTENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABLE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE DISCLAIMED TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW BY NEXTOPIA.

  1. Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL NEXTOPIA OR ANY OF ITS SUPPLIERS, AFFILIATES, PARTNERS, ASSOCIATES, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, OR CONTENT OR SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS AND SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER USER OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR OTHER ECONOMIC LOSS, OR FOR ANY DIRECT, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF: THE USE OF THE WEBSITE, SERVICES OR ANY CONTENT; THE RELIANCE ON ANY STATEMENT OR ADVICE FROM ANY CONTENT; THE INABILITY TO GAIN ACCESS TO OR USE THE WEBSITE, SERVICES, OR ANY PART THEREOF, OR TO ANY CONTENT; OR OUT OF ANY BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED.

  1. Indemnification

You agree to defend, indemnify and hold harmless Nextopia, its suppliers, affiliates, partners, associates, employees, agents, successors, assigns, or content or service providers, and each of their respective directors, officers, employees, consultants, agents and suppliers, from any costs or damages of any kind, including reasonable legal fees, arising from any and all claims, suits or demands pertaining to your use of the website, content or services, or arising out of your breach of these Terms of Use or your violation of any rights of any other user or third party.

You acknowledge that any breach of any term or provision of these Terms of Use will result in immediate and irreparable harm and damage to Nextopia, and that, in the event of any such breach, Nextopia shall be entitled to equitable relief by way of temporary or permanent injunction in addition to any and all other relief as a court of competent jurisdiction may deem appropriate, or as otherwise set out in these Terms of Use.

  1. Children Under the Age of 13

Our website and services are not intended for children under the age of 13.  You represent and warrant that you are at least 13 years old or visiting our website under the supervision of a parent or guardian.

  1. Termination

We reserve the right to suspend or terminate your account and your use of our website and services at our sole discretion and without prior notice to you, including for breaches of these Terms of Use for any reason whatsoever.

You may terminate your use of our website and services at any time.  The obligations and liabilities incurred prior to the termination date shall survive the termination of these Terms of Use.

Upon termination of your use of our website or services, for any reason, you remain liable for any fees or charges incurred prior to termination.

  1. Force Majeure

We shall not be liable for unforeseen delays in performing any of our obligations under these Terms of Use, or for delays that were not reasonably within our control, and will be entitled to a reasonable extension of time for the performance of such obligations.

  1. Severability

If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect.  Headings used in these Terms of Use are not to be used to construe or interpret the provisions therein.

  1. Entire Agreement

These Terms of Use, and any provisions incorporated by reference, constitute the entire agreement between you and Nextopia and govern your use of the website and services, superseding any prior agreement, whether oral or written.  You may be subject to additional terms and conditions that apply to certain other services offered by Nextopia or its affiliates.

  1. Waiver

The failure of Nextopia to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision.

  1. Non-Transferable

This agreement is not transferable by you in any way and may not be assigned to any third party without the prior written consent of Nextopia.

  1. No Third Party Rights

No provision of these Terms of Use provides any person or entity not a party to this agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

  1. Governing Law

These Terms of Use and any separate agreements whereby we provide you services shall be governed by and construed in accordance with the laws of the Province of Ontario and the applicable laws of Canada, without regard to conflict of laws provisions.  You hereby consent and submit to the personal jurisdiction of the courts of the Province of Ontario in any action or dispute related to these Terms of Use, the website or our services.

  1. Changes to Terms

We may revise these Terms of Use at any time, without notice to you.  We may, at our sole discretion, notify you of a change to these Terms of Use, for example by announcing the change on our website, by e-mailing you about the change, or by notifying you of the change when you log into our website or our software platform.  Your continued use of our website, platform or services constitutes your consent to the contents of any updated Terms of Use.