Terms and Conditions

THIS YOLA DESIGNERS PROGRAM AGREEMENT (THIS “AGREEMENT”) IS BETWEEN YOLA, INC. (“YOLA”) AND YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE AN EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY). BY CLICKING ON THE “Submit Design” BUTTON OR SENDING A DESIGN TO designers@yola.com, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, AND YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH YOU CLICK THE “Submit Design” BUTTON OR SEND A STYLE DESIGN TO designers@yola.com. FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) CONSTITUTES “DESIGNER” OR “YOU”.   

1. Background. Yola has developed and provides guidelines (the ”Guidelines”) for Designers to develop website styles (the “Styles”) for Yola’s website creation platform and is accepting submission for these styles. Yola reserves the right to accept or reject a Style at Yola’s sole discretion and commits to pay $250 per Style deemed accepted by Yola (“Accepted Style”).   


2. Services. Designer will develop website styles (the “Styles”) for Yola’s website creation platform (the “Services”) pursuant to the Guidelines. By submitting a style, Designer warrants that the Design will not infringe or be derivative of the Intellectual Property Rights of a third party.  
   
   
3. Acceptance and Rejection; Delivery. Designer will deliver the Styles to Yola by submitting them on the “Submit” page by uploading them and clicking “Submit Design”. Upon Yola’s receipt of the Styles, Yola will review and otherwise evaluate the Styles for conformity to the specifications set forth in the Guidelines and other factors to be soley determined by Yola.  Compliance with the Guidelines is a prerequisite of acceptance but does not guarantee acceptance.   Within 10 business days of Yola’s receipt of the Styles, Yola will provide Designer with written notice of acceptance of the Styles (the “Acceptance Notice”) or a statement of the style’s rejection. In the event that Yola provides Designer with a written statement of rejection, Designer can make changes and resubmit the Style at a later date. Yola reserves the right to reject any Styles for any reason, including but not limited to non conformity to the Guidelines, overall aesthetics of the style, or other.
   
   Yola reserves the right to choose whether to implement or not any Accepted Style in the Yola site builder.
   
   
4. Ownership. Upon receipt of Payment for an Accepted Style, the Designer hereby assigns Yola, all Intellectual Property Rights which the Designer has or may in the future have in the Accepted Style. Designer will furnish and disclose to Yola all of the Styles, all related documentation and any other works discovered, prepared or developed by Designer in the course of or resulting from the provision of Services under this Agreement (collectively, the “Work Product”).  Upon written acceptance of the Work Product, all right, title and interest in the Work Product vests in Yola and is deemed to be a work made for hire, and to the extent it may not be considered a work made for hire, Designer assigns to Yola all right, title and interest in and to the Work Product, including any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively, the “Intellectual Property Rights”). If the Work Product includes previously developed items, Designer grants to Yola a worldwide, unrestricted, royalty-free, perpetual, irrevocable license to make, have made, use, market, import, distribute, copy, modify, prepare derivative works, perform, display, disclose, sublicense and otherwise exploit such previously developed items. Designer irrevocably waives all rights under all laws (of the United States and all other countries) now existing or hereafter permitted, with respect to any and all purposes for which the Work Product may be used. At no additional charge, Designer will execute all papers (including assignments) and do all things required in order to evidence, perfect, obtain, protect, defend, convey and enforce the rights of Yola in the Work Product. Designer irrevocably designates and appoints the Yola and its duly authorized officers and agents as Designer’s agent and attorney in fact, to execute documents or take any lawfully permitted action to evidence, perfect, obtain, protect, defend, convey and enforce the rights of Yola in the Work Product that Designer is unable or unwilling to perform. 
   Yola does and will not retain any Intellectual Property Rights, or in any way use or copy any work a Designer has submitted and was deemed to be a Rejected Style.  
   
   
5. Financial Considerations. The total fee for the performance of the Services (including, but not limited to, the development of the Styles) and Designer’s assignment of all right, title and interest in and to the Work Product to Yola is $250 USD per accepted style.  
   
   
6. Confidentiality. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Yola to Designer concerning or related to this Agreement or Yola (whether before, on or after the Effective Date) which Designer knows or should know, given the facts and circumstances surrounding the disclosure of the information by Yola, is confidential information of Yola. Confidential Information includes, but is not limited to, the components of the business plans, Yola’s products and services, inventions, design plans, financial plans, computer programs, know-how, customer information, strategies and other similar information. Designer will, during the term of this Agreement, and thereafter maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted herein. Designer will use the same degree of care in protecting the Confidential Information as Designer uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by Designer solely for the purpose of carrying out Designer’s obligations under this Agreement. In addition, Designer: (i) will not reproduce Confidential Information, in any form, except as required to accomplish Designer’s obligations under this Agreement; and (ii) will only disclose Confidential Information to its employees and consultants who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such employees and consultants have executed a non-disclosure agreement with Designer with terms no less restrictive than the non-disclosure obligations contained in this Section 6. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of Designer; (b) Designer can reasonably demonstrate was in its possession prior to first receiving it from Yola; (c) Designer can demonstrate was developed by Designer independently and without use of or reference to the Confidential Information; or (d) Designer receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.  Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Designer to Yola with respect to Yola and any Yola products and services (collectively, “Feedback”) will constitute Confidential Information. Further, Yola will be free to use, disclose, reproduce, license and otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of all Intellectual Property Rights or otherwise.  
   
   
7. Representations and Warranties; Disclaimer. Each party represents and warrants that: (i) it is validly existing and in good standing under the laws of its state of incorporation; (ii) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (iii) its execution and delivery of this Agreement and its performance of its obligations under this Agreement will not result in its breach of or default under any agreement or arrangement by which it is bound; (iv) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; and (v) this Agreement is valid, binding and enforceable against it in accordance with its terms. Further, Designer represents and warrants that: (a) it will perform the Services in a professional and workmanlike manner; (b) the Styles will conform to the Specifications; and (c) the Work Product (including, but not limited to, the Styles) will not misappropriate or infringe any Intellectual Property Rights of any third party. EXCEPT AS SET FORTH IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. 
   
   
8. Indemnification. Designer, at its sole expense, will defend, indemnify and hold Yola and its directors, officers, employees, contractors, agents, successors and assigns (collectively, “Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) resulting from any claim (including third party claims), suit, action, or proceeding against any Indemnitees, whether successful or not, resulting from or arising in connection with: (i) any breach of this Agreement by Designer (including, but not limited to, any breach of a representation or warranty); or (ii) any negligent act or willful misconduct by Designer or any party acting on its behalf. 
   
   
9. Limitation of Liability. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, BREACHES OF SECTIONS 4, 6 OR 7 (c)  OR THE INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, BREACHES OF SECTIONS 4, 6 OR 7 (c) OR THE INDEMNIFICATION OBLIGATIONS, IN NO EVENT will A PARTY’s TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE aggregate of the amounts paid by YOLA TO DESIGNER UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. 
   
   
10. Additional Terms. Designer’s use of the Designer’s Community Website signifies Designer’s acknowledgment of, and agreement to, the Privacy Policy and the Terms of Service.  If Designer is a resident of any country outside the United States, Designer understands and agrees that Yola will store and process Designer’s personal information on computers located in the United States, and that by providing any information to Yola, Expert consents to the transfer of such information to the United States.  
    11.  Modifications. Yola reserves the right to change or modify any provision of this Agreement, at any time in its sole discretion. Any such changes or modifications will be effective immediately upon posting of revisions on the Yola Site. By continuing to submit the Styles following the posting of such changes or modifications, constitutes Designer’s acceptance thereof.  Therefore, Designer should frequently review this Agreement on the Yola Site in order to understand the terms and conditions applicable to Designer’s use of the Designer’s Guideline. If Designer does not agree to any changes or modifications to this Agreement, Designer’s sole recourse is to stop submitting Styles.    
    
    
11. Electronic Communications. Notwithstanding any terms to the contrary in this Agreement, Yola may choose to electronically deliver all communications with Designer, which may include: (i) email to Expert’s email address indicated in Designer’s communications with Yola or upon registration with the Yola Site; or (ii) posting messages that are displayed to Designers when designer logs in to or access the Yola Site. Yola’s electronic communications to Designer may transmit or convey information about action taken on Designer’s request, portions of Designer’s request that may be incomplete or require additional explanation, any notices with respect to modifications to the Terms of Service, any notices required under applicable law and any other notices. Designer agrees to do business electronically with Yola, and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.  
    
    
12. Promotion. Yola retains the sole right to determine whether or not to promote the Designer as design author of the Styles developed for Yola and reserves the right to modify/change this promotion at any time. Possible promotion channels may include but shall not be limited to Yola newsletters, main website, Style selection dialogues and on sites built by users with that Style.  
    
    
13. General Provisions. This Agreement together with any exhibits attached hereto, are the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in San Francisco County, California, and the parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Designer, by operation of law or otherwise, without the prior written consent of Yola, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Yola may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. Designer will be responsible for the payment of any and all applicable payroll and income taxes relating to the performance of its obligations under this Agreement. Nothing contained in this Agreement will be deemed to constitute Designer, or any of its employees, agents or representatives, as an employee, agent or representative of Yola, and neither Designer nor any of its employees, agents or representatives will be entitled by virtue of this Agreement to any benefits afforded generally to employees of Yola. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. Any notice, demand or communication required or permitted to be given by any provision of this Agreement will be deemed to have been sufficiently given or served for all purposes if: (i) delivered personally; (ii) deposited with a pre-paid messenger, express or air courier or similar courier; or (iii) transmitted by telecopier, facsimile, email or other communication equipment that transmits a facsimile of the notice to like equipment that receives and reproduces such notice. Notices will be addressed to a party at the party’s address, facsimile number or email address as set forth below. Notices will be deemed to have been received (a) in the case of personal delivery, upon receipt, (b) in the case of messenger, express or air courier or similar courier, two days after being deposited, and (c) in the case of telecopier, facsimile, email or other communication equipment, the day of receipt as evidenced by a telecopier, facsimile, email or similar communication equipment confirmation statement. Further, either party may change the individual designated below or its contact information or both by notice in accordance with this Section 10.