“Yotpo is a fundamental part of our recommended tech stack.”
Laura Doonin, Commercial Director
Updated March 9, 2023
BY DOWNLOADING AND/OR USING YOTPO’S APP, OR BY SUBSCRIBING TO THE YOTPO MARKETING TECHNOLOGY AND RELATED SERVICES (AS DEFINED BELOW IN SECTION 1) THROUGH THE YOTPO-APPROVED FORM OR ONLINE SUBSCRIPTION PROCESS (“ORDER”), THESE TERMS AND ORDER GOVERNS CLIENT’S ACCESS AND USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT AND USING OR ACCESSING ANY OF THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT, AS UPDATED FROM TIME TO TIME.
IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “CLIENT” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT BE PERMITTED TO USE THE SERVICES.
FURTHERMORE, BY ACCEPTING THIS AGREEMENT YOU REPRESENT AND WARRANT THAT ANY AND ALL INFORMATION YOU PROVIDE US THROUGH THE SERVICES IS TRUE, ACCURATE AND COMPLETE. THE PROVISION OF FALSE OR FRAUDULENT INFORMATION IS STRICTLY PROHIBITED.
AS USED HEREIN, THE FOLLOWING DEFINITIONS SHALL APPLY:
“AGREEMENT” OR “TERMS” MEANS THESE TERMS OF SERVICE AND ALL MATERIALS AND LINKS REFERRED TO HEREIN.
“CLIENT” OR “YOU” MEANS THE INDIVIDUAL OR LEGAL ENTITY LICENSING THE SERVICES HEREUNDER.
“YOTPO” MEANS YOTPO LTD. AND ITS AFFILIATES.
“PARTIES” MEANS CLIENT, OR YOU, TOGETHER WITH YOTPO.
1. Services
Yotpo’s platform is a unique, proprietary ecommerce marketing platform (“Platform”) that offers solutions for customer reviews, visual marketing, SMS/MMS marketing, and loyalty and referral programs (each also referred to as a “Product” and, as may be combined, “Products”). “Services,” as used in this Agreement, refers to a Client’s access to the Platform, Products and other ancillary services specified in the Order. All content, data and other information that Client submits to the Services through its use thereof, including, without limitation, such information as Client may collect through the Services from End-Users (as defined below), is “Client Content” for the purposes of this Agreement. Depending on the Products licensed by Client, Client may have access to the following functionality. If the Client has not received access to a specific Product that offers the following functionality, then the terms for that function shall not apply:
a. User Generated Content– Certain Products enable Client to collect, organize and use Client Content that may include, without limitation, text, videos, photographs and other user generated content created or otherwise supplied by the Client’s customers, end-users or parties with whom Client interacts (each an “End-User” and, collectively, “End-Users”) on the Client’s website, social media services, and third-party websites. An example of such functionality would be the Client’s use of the Platform to display an End-User’s photo of the Client’s product on the Client’s website.
b. Loyalty and Referrals– Certain Products enable Client to provide End-Users with the ability to (i) earn loyalty points from Client and apply applicable point balances to purchases from Client and (ii) earn an incentive when the End-User refers a third-party purchaser to Client (“Loyalty and Referrals”). Client Content in the context of loyalty and referrals includes information related to an End-User’s participation in a loyalty or referral program (for example, the number of the End User’s loyalty points).
c. Reviews– Certain Products enable Client to invite End-Users to write Reviews (as defined below). “Reviews” are Client Content that may include, without limitation, opinions, product or service ratings or reviews, articles, written expressions, in any form or media, and/or any works of authorship created by the End-User, the Client or any other third party and may, subject to this Agreement, include any reviews that are imported through the Platform from third-party sites.
d. SMS Marketing – Certain Products enable Client to engage with End-Users by utilizing SMS/MMS/text messages. Through an application provided by Yotpo, or through the Platform, a Client can enable features whereby Client can send marketing and other messages via SMS/MMS/text message regarding the Client’s products or services.
e. Email Marketing – Certain products enable Client to engage with End-users by sending emails. Through an application provided by Yotpo, a Client can enable features whereby Client can send marketing or transactional outreach via email regarding the Client’s products or services.
f. Subscriptions – Certain Products enable Client to offer Subscriptions options on their sites. “Subscriptions” are recurring purchase options offered to provide End-Users the convenience of receiving automated shipments and charges for products they choose. An example of such functionality would be the Client’s use of the Platform to display subscriptions offering on the Client’s product(s).
2. PROPRIETARY RIGHTS
a. Ownership– Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Yotpo’s rights under this Agreement, between the parties, Client retains all intellectual property and other rights in its intellectual property and to the Client Content provided to Yotpo. Except for Client’s rights under this Agreement, Yotpo and its licensors retain all intellectual property and other rights in the Platform, and in and to each Product, the Services, and any deliverables and related Yotpo technology, templates, documentation, help files, tutorials, formats and dashboards, including any modifications or improvements to these items made by Yotpo and the Usage Data, as defined below (the “Yotpo Materials”). If Client provides Yotpo with feedback or suggestions regarding the Services or other Yotpo offerings, Yotpo may use the feedback or suggestions without restriction or obligation.
b. Usage Data– Yotpo may generate technical logs, data and learnings about Client’s use and an End-User’s use of the Services (the “Usage Data”) and the Client Content processed by the Services, and use such information to operate, analyze, improve and support the Platform and/or the Services and for other lawful purposes. Except as required by law, Yotpo will not disclose Usage Data externally, including in benchmarks or reports except in the aggregate.
3. LIMITED LICENSE TO ACCESS AND LIMITED LICENSE TO THE CLIENT CONTENT
a. License to the Services– Subject to the terms and conditions set forth herein (including without limitation payment of the applicable fees), and during the term of this Agreement only, Client may access and use the Services only for its internal business purposes in accordance with the Terms of this Agreement, including any usage limits on an applicable Order. Access to the Services is limited to Client’s employees and contractors acting for the sole benefit of Client (“Permitted Users”). Client and its Permitted Users may need to register for a Yotpo account in order to access or use the Services. Client is responsible for ensuring that account registration information is accurate, current and complete.
b. License to the Client Content– Client grants to Yotpo a worldwide, non-exclusive, transferable, royalty-free license during the term to, and hereby instructs Yotpo, to use, transfer, copy, reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or through third parties, create derivative works of Client Content and otherwise use and commercially exploit any Client Content in any media formats (i) to the extent necessary to provide Client with access to and use of the Services in accordance with the Terms of this Agreement, (ii) to comply with law, (iii) to detect, prevent and investigate security incidents, fraud, spam or unlawful use of the Services, (iv) to address technical problems, address support requests, and attend to the proper working of the Services, (v) to protect the rights, property or safety of Yotpo, its customers, its customers’ end-users, and/or the public, and (vi) subject to the Data Processing Addendum, described in Section 9.b below, for any other lawful purpose, including without limitation, for the purposes set forth in Section 2.b hereof. Such license will apply to any form, media or technology now known or hereafter developed.
c. Open Source Software. The Services may include certain open source components owned by a third party that are subject to open source licenses (“Open Source Software”). Some of the Open Source Software is not subject to the terms and conditions of these Terms. Instead, each item of such Open Source Software is licensed under the applicable license terms which accompany such Open Source Software. Nothing in these Terms limits your rights under, nor grants you rights that supersede, the terms and conditions of any applicable license terms for the Open Source Software.
4. LIMITATIONS OF USE
a. Client’s use of the Services shall be limited to its own internal business use Except as specifically permitted herein, Client shall not (i) sell, license (or sub-license), lease, assign, transfer, pledge or share any of its rights under this Agreement with/to any other party, entity or person, (ii) transfer, distribute, copy all or any part of the Services and/or the Yotpo Materials, (iii) refer to the Services by use of framing and/or deep-linking, (iv) make use of the Services or distribute any part thereof in any jurisdiction where same is illegal or where such use or distribution would subject Yotpo or its affiliates to any registration requirement within such jurisdiction or country (v) use, encourage, promote, facilitate or instruct others to use the Platform for any illegal, harmful or offensive use, (vi) promote any content, products, services, or other information that may be illegal to sell or promote under any applicable law or may reasonably be perceived to be unlawful, inflammatory, offensive or otherwise inconsistent with the spirit of Yotpo’s Services, brand or image, (vii) transmit any viruses or other harmful, infringing, illegal, disruptive or destructive content, messages or files, (viii) visit the Platform or access the Services through unauthorized means, including, without limitation, any data mining, robots/bots, or similar data gathering and extraction tools to extract for re-utilization of any parts of the Platform, (ix) distribute, publish, send or facilitate the sending of unsolicited mass messages, promotions, advertising, or solicitations (e.g. “spam”) including unlawful commercial advertising and informational announcements as further described in Section 4.b, (x) distribute, publish, send, or facilitate the sending of any inappropriate, inaccurate, misleading, fraudulent or otherwise illegal content or content which infringes intellectual property rights of third parties or their right for privacy, (xi) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), make any attempt to discover the source code of the Platform and/or the Services and/or any other software available therein or create derivative works thereof, (xii) remove any copyright, trademark or other proprietary rights notices contained in or on the Platform, (xiii) remove, change or modify any trademarks from or attach any additional trademarks to the Platform, (xiv) use the Platform or the Services in a manner that subjects any part thereof to any obligation to disclose or distribute the source code thereof and/or that may cause others to have the right to modify or create derivative works thereof; or cause them to become redistributable at no charge. Client is solely responsible for obtaining, paying for, repairing and maintaining all the equipment, software, hardware and services required for Client to access the Services.
b. Client shall not use the Services in a manner that violates generally recognized industry guidelines, including, without limitation, (i) using non-permission based email lists (i.e., lists in which each recipient has not explicitly granted permission to receive emails from Client by affirmatively opting-in to receive those emails), (ii) using purchased or rented email lists, (iii) using third-party email addresses, domain names, or mail servers without proper permission, (iv) sending emails to non-specific addresses (e.g., webmaster@domain.com or info@domain.com), (v) sending emails that result in an unacceptable number of spam or unsolicited commercial email complaints (even if the emails themselves are not actually spam or unsolicited commercial email), (vi) failing to include a working “unsubscribe” link in each email that allows the recipient to remove themselves from Client’s mailing list, (vii) failing to comply with any request from a recipient to be removed from Client’s mailing list within ten (10) days of receipt of the request, (viii) failing to include in each email a link to the then-current privacy policy applicable to that email, (ix) using misleading subject headings or other content or disguising the origin or subject matter of any email or falsifying or manipulating the originating email address, subject line, headers or transmission path information for any email, (x) failing to include in each email Client’s valid physical mailing address or a functioning link to that information, (xi) failing to note in the heading and at the beginning of advertising messages that the transmission is an advertisement and (xii) including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards or other incentives) or other material in any email that encourages a recipient to forward the email to another recipient.
5. CLIENT OBLIGATIONS
a. Compliance with Law– Client represents, warrants and covenants to Yotpo that Client’s use of the Services shall comply with the limitations of use in Section 4 and all applicable laws, rules or regulations of any jurisdiction, including, without limitation, those relating to (i) communication by telephone, text/SMS/MMS message or email for advertising, marketing or other purposes, (ii) monitoring or recording of electronic or telephonic communications, (iii) the privacy, security or protection of ‘personal data’ or ‘personal information’, as such terms are defined under privacy laws (collectively, “Personal Information”), including, without limitation, as applicable to the collection, storage, retention, processing, transfer, disclosure, sharing, disposal or destruction of Personal Information, (iv) requirements for websites and mobile applications, online behavioral advertising, or online tracking technologies, or (v) applicable economic or financial sanctions or trade embargoes, including those administered by the U.S. government through the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State, or the Israeli government (collectively, “Laws”). Without limiting the foregoing, Laws include the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Do-Not-Call Implementation Act, the Controlling the Assault of Non Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act (“COPPA”), the Federal Trade Commission Act, the California Consumer Privacy Act (“CCPA”), other state privacy, data security and breach notification laws, state consumer protection laws, the European Union’s General Data Protection Regulation (2016/679) (“GDPR”) and Privacy and Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), the United Kingdom’s Data Protection Act 2018 (together with the GDPR, the ePrivacy Directive and any national legislation implementing either, “European Data Protection Law”), Canada’s Personal Information Protection and Electronic Documents Act, Canada’s Anti-Spam Legislation (S.C. 2010, c 23), the U.S. Trading with the Enemy Act of 1917, the U.S. International Emergency Economic Powers Act, the Israeli Trading with the Enemy Ordinance of 1939, and any legislation and/or regulation implementing or made pursuant to, or which amends, replaces, re-enacts or consolidates, any of the foregoing. For purposes of this Agreement, Laws also include the Cellular Telecommunications Industry Association (CTIA) Messaging Principles and any other applicable self-regulatory rules or codes of conduct, as amended from time to time, including, without limitation, such rules and guidelines issued by the Mobile Marketing Association and telecommunications providers. You also represent, warrant and covenant that you are not identified on the OFAC list of Specially Designated and Blocked Persons or any other U.S. or Israeli list of restricted parties, are not operating from, established under the laws of, or ordinarily resident in Cuba, Iran, Lebanon, North Korea, Syria, or the Crimea region of Ukraine (each a “Sanctioned Country” and collectively the “Sanctioned Countries”), and will not use the Services in a Sanctioned Country.
b. Privacy and Cookie Notices– Client shall provide and make available to End-Users a privacy notice that describes the collection, use and disclosure of End-Users’ Personal Information in connection with Client’s use of the Services, including without limitation, such collection, use and disclosure contemplated by this Agreement. If Client is subject to the GDPR or ePrivacy Directive or other Laws requiring Client to give notice of, or obtain consent to, the use of cookies or similar technologies on Client’s websites or other online services, then Client shall give such notices and obtain such consents with respect to any Yotpo cookies or similar technologies utilized on Client’s websites or other online services.
c. Restricted Data– Client shall ensure that Client Content does not include (i) protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or medical information governed by state healthcare privacy laws, (ii) Social Security numbers, driver’s license numbers or other government-issued identification numbers, (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm Leach-Bliley Act, (iv) payment card data regulated by the Payment Card Industry Data Security Standards; (v) biometric data regulated by biometric privacy laws, (vi) online account passwords, login credentials or related information (vii) criminal history, (viii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes “special categories of data” regulated by the GDPR or (ix) Personal Information of children under sixteen (16) years of age regulated by COPPA, the GDPR or under the age of consent for purposes of applicable privacy laws. Yotpo shall have no liability with respect to such information, notwithstanding anything in the Agreement to the contrary.
d. Security– Client shall use its best efforts to prevent unauthorized access to or use of the Services through its or its Permitted Users accounts, promptly notify Yotpo of any unauthorized access or use and provide reasonable cooperation regarding information requests from law enforcement, regulators or telecommunications providers.
e. Obligations Regarding Client Content– Client is solely responsible for the accuracy, content and legality of the Client Content. Client acknowledges that the Services are provided by Yotpo to Client on a business-to-business basis, and that Yotpo does not have a direct relationship with any End-User as a result of providing the Services to Client hereunder. As a result, Client acknowledges that Yotpo relies on Client’s rights to the Client Content in order to provide the Services, and processes Client Content according to the Yotpo Data Processing Addendum and Client’s instructions thereunder. Client is solely responsible for the accuracy, content and legality of Client Content. Yotpo shall not be liable for any Client Content, and shall be entitled, in its sole discretion, to edit or remove from the Platform any Client Content which Yotpo reasonably believes to be inaccurate, inappropriate or otherwise not in compliance with the Agreement or applicable law. NOTHING IN THIS AGREEMENT OBLIGATES YOTPO TO DISPLAY ANY CLIENT CONTENT THAT YOTPO REASONABLY BELIEVES TO BE INACCURATE, INAPPROPRIATE OR OTHERWISE NOT IN COMPLIANCE WITH THIS AGREEMENT OR APPLICABLE LAW OR TO USE SUCH CLIENT CONTENT AT ALL OR IN A CERTAIN MANNER. Client shall designate a copyright agent and implement a notice and takedown mechanism in compliance with the Digital Millennium Copyright Act (or other comparable applicable laws in jurisdictions outside of the United States), and Client shall comply with any such takedown notice received in respect of any Client Content, in each case, to the extent required by applicable law.
f. Rights in Client Content– Client represents and warrants to Yotpo that Client has given all notices and obtained all rights consents, assignments, licenses, permissions and authorizations (including the waiver of any moral rights) necessary for Client to transfer to Yotpo and for Yotpo to collect, use and share the Client Content (and any Personal Information contained therein) as contemplated by this Agreement without violation or infringement of (i) any Laws, (ii) intellectual property, publicity, privacy or other rights, or (iii) any terms of service or other agreements governing the Client Content or Client’s activities relating to its use of the Services (including, without limitation, the Instagram Platform Policy).
g. Permitted Users and End-Users– Client shall ensure that each of Client’s Permitted Users and End-Users is legally bound by Client’s terms of use, terms of service or such other legally binding agreement between Client and each such End-User in a manner that prohibits End-Users from infringing or otherwise violating third-party rights including, without limitation, third-party intellectual property rights. Client is solely responsible for all acts, omissions and activities of Permitted Users and End-Users, including their compliance with this Agreement.
h. Order Fulfillment– As between Client and Yotpo, Client is solely responsible for all customer service, order fulfillment and returns, and payment of taxes or charges associated with any products or services that Client sells or markets in connection with the domains listed on the Order.
i. Sending Messages to End-Users via the Services– To the extent that Yotpo provides Client with access to functionality that allows Client to send Client communications by telephone, text/SMS/MMS message or email to End-Users, including, without limitation, marketing and advertising communications (“Client Messages”), Client agrees not to send any unsolicited, commercial communications. Further, Client acknowledges that Client is solely responsible for all content of Client Messages created by or on behalf of Client and for Client’s compliance with all Laws in connection with Client’s use of the Services to send Client Messages. Accordingly, and notwithstanding any representation or warranty disclaimer in the Agreement, Client represents, warrants and covenants that: (i) all applicable lists of email addresses and/or phone numbers were created and/or shared with Yotpo in a manner that complies with Laws, (ii) each End-User or other recipient of Client Messages or other communications has been given clear and conspicuous notice prior to the collection of his or her phone number, email address and/or other contact information that such information may be collected, used or shared to facilitate sending Client Messages to such recipient and as contemplated in this Agreement and (iii) each End-User or other recipient of applicable communications has given all consents required by Law to receiving commercial email and other forms of communication, including, but not limited to, consent to receive the Client Messages. Client acknowledges that the Services may employ automated telephone dialing systems regulated by the TCPA to transmit Client Messages and Client agrees that such consents shall be sufficient to permit the Services’ use of such systems, including without limitation, to send messages for advertising and solicitation purposes.
j. Limits on Certain Messages– By using functionality to send Client Messages to End-Users, Client agrees to make End-Users aware of their right to opt out of any future messages, as required by law. Client is responsible for honoring all opt-out requests from End-Users. Client must use a valid telephone number. Phone numbers such as landline numbers that cannot receive SMS/MMS or text messages will not be eligible for the Services. Client agrees that Yotpo reserves the right in its sole discretion to cap the number of Client Messages that may be sent in connection with the Services. Applicable message and data rates apply to such messages. Client hereby acknowledges and agrees that (i) Yotpo merely plays a technical role in transmitting or routing Client Messages sent by Client as a conduit, (ii) that Client is the sender of any Client Messages for purposes of Laws, (iii) Yotpo has no relationship with or any obligation to any End User or any other person or entity with to whom Client provides services utilizing the Services (“End-User Services”), none of whom is a third-party beneficiary of this Agreement, and (iv) Client shall have sole responsibility and liability for any Client Messages and for compliance with any Laws related to End-User Services. Yotpo may suspend or disable Client’s ability to send messages through the Services at any time if Yotpo, in its sole discretion, believes Client is sending messages in violation of the Terms of this Agreement.
6. SUSPENSION OF SERVICE
a. Yotpo may suspend Client’s access to the Services if Client breaches Section 4 (Limitations on Use) or Section 5 (Client Obligations), if Client’s account is 30 days or more overdue or if Client’s actions risk harm to other Clients or the security, availability or integrity of the Services. Where practicable, Yotpo will use reasonable efforts to provide Client with prior notice of the suspension. Once Client resolves the issue requiring suspension, Yotpo will promptly restore Client’s access to the Service in accordance with this Agreement. Yotpo reserves the right, but is not obligated, to monitor and audit Client’s use of the Services for any reason or no reason, without notice, to ensure Client’s compliance with this Agreement.
7. REPRESENTATIONS AND WARRANTIES
a. In addition to representations and warranties made elsewhere in this Agreement, Client represents and warrants to Yotpo that: (i) it has, and will have at all times, all right, title and interest necessary to grant to Yotpo any and all licenses granted by Client or its End-Users or other third parties hereunder for the purposes contemplated by this Agreement, including from Client’s End-Users or any third-party site for the use of the Client Content, (ii) has all necessary rights, permits and licenses under all Laws, rules and regulations to operate the domains listed on the Yotpo Order and to promote, offer for sale, and sell all products or services offered or sold in connection with such domains, (iii) any and all Client Content complies, and will comply at all times during the term of this Agreement, with all Laws, rules and regulations, and this Agreement and does not and will not during the term of this Agreement infringe the rights of any third party, including any intellectual property rights; and (iv) Client shall comply with all Laws, including without limitation, TCPA, CAN-SPAM Act and the Digital Millennium Copyright Act.
b. Yotpo represents and warrants that: (i) it has, and will have at all times, all right, title and interest necessary to grant any and all licenses granted by Yotpo hereunder for the purposes contemplated by the Agreement; (ii) it has, to its knowledge, all necessary rights, permits and licenses under all Laws, rules and regulations to operate the Platform in the manner in which it is meant to be operated at any applicable time; and (iii) the Platform (except as related to Client Content, which shall be the responsibility of Client), shall, to Yotpo’s knowledge, not infringe on the rights, including without limitation, intellectual property rights, of any third party.
8. CONFIDENTIALITY
a. During the term of this Agreement, either party (as the “Disclosing Party“) may disclose or make available to the other party (as the “Receiving Party“) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media , and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party or any of its Representatives, (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information, (iii) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party, (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.
b. The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, (B) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
c. The provisions of this Section 8 shall survive the natural expiration or termination of this Agreement for any reason for a period of three (3) years.
9. PRIVACY AND DATA PROTECTION
a. Client instructs Yotpo to use account registration information and other Personal Information of Permitted Users collected in connection with their use of the Services as described in Yotpo’s Privacy Policy, as updated from time to time (currently available https://www.yotpo.com/privacy-policy/). Client is responsible for any use of the Services by its Permitted Users and their compliance with this Agreement. Client shall keep confidential its and its Permitted Users’ user IDs and passwords for the Services and shall be responsible for any actions taken through their respective accounts.
b. Yotpo’s Data Processing Addendum, as updated from time to time (currently available at www.yotpo.com/data-processing-addendum/) shall apply and form part of this Agreement when Client Content constitutes Personal Information subject to data protection laws, including European Data Protection Law or the CCPA.
10. DISCLAIMERS
a. EXCEPT AS EXPRESSLY PROVIDED HEREIN: (I) THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY AND ALL YOTPO MATERIALS, THE SERVICES (INCLUDING WITHOUT LIMITATION INSTALLATION, INTEGRATION AND IMPLEMENTATION SERVICES), AND THE PRODUCTS ARE PROVIDED BY YOTPO “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED; (II) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, YOTPO DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE; (III) YOTPO DOES NOT WARRANT THAT THE YOTPO MATERIALS, THE SERVICES OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND (IV) YOTPO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT CLIENT’S USE OF THE SERVICES WILL COMPLY WITH LAWS OR OTHERWISE RELATING TO THE USE OR THE RESULTS OF THE USE OF THE SERVICES, THE YOTPO MATERIALS OR OTHER CONTENT MADE AVAILABLE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CLIENT IS RESPONSIBLE FOR EVALUATING THE CAPABILITIES AND FEATURES OF THE SERVICES AND MAKING ITS OWN DETERMINATION ABOUT WHETHER CLIENT IS ABLE TO USE THE SERVICES IN COMPLIANCE WITH LAWS. CLIENT IS RESPONSIBLE FOR TAKING ALL PRECAUTIONS IT BELIEVES NECESSARY OR ADVISABLE TO PROTECT IT AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ITS USE OF OR RELIANCE UPON THE PLATFORM, YOTPO’S WEBSITE, OR THE SERVICES. YOTPO ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD-PARTY TELECOMMUNICATIONS PROVIDERS. THE SERVICES SHOULD NOT BE USED FOR EMERGENCY COMMUNICATIONS AND YOTPO WILL HAVE NO LIABILITY ARISING FROM SUCH USE.
b. CLIENT ACKNOWLEDGES, THAT EMAIL AND TEXT/SMS/MMS MESSAGES ARE INSECURE MEDIUMS THAT ARE GENERALLY NOT ENCRYPTED IN TRANSIT AND SECURITY OF INFORMATION TRANSMITTED THROUGH THE INTERNET CAN NEVER BE GUARANTEED AND, ACCORDINGLY, YOTPO IS NOT RESPONSIBLE FOR ANY INTERCEPTION OR INTERRUPTION OF ANY COMMUNICATIONS THROUGH THE INTERNET OR FOR CHANGES TO OR LOSS OF CLIENT CONTENT IN CONNECTION WITH THE SERVICES.
c. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE.
11. LIMITATION OF LIABILITY
a. TO THE MAXIMUM PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WHATSOEVER WILL YOTPO NOR ITS RESPECTIVE AFFILIATES OR PARTNERS NOR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS OR SUPPLIERS BE RESPONSIBLE OR LIABLE, UNDER ANY LEGAL THEORY, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, FOR ANY COMPENSATORY, DIRECT OR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS AND LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, REVENUE, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT THAT YOTPO IS FOUND LIABLE OR RESPONSIBLE TO YOU FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE IN CONNECTION WITH THESE TERMS AND/OR THE MATTERS CONTEMPLATED HEREIN, YOTPO’S AGGREGATE LIABILITY TO YOU SHALL BE LIMITED TO $100.00.
b. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE.
c. YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE A MATERIAL, BARGAINED-FOR BASIS OF THESE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY YOTPO TO OFFER TO YOU AND BY YOU TO USE THE SERVICES AND THE PLATFORM.
12. INDEMNIFICATION
a. Indemnification by Yotpo– Yotpo will defend Client, its officers, directors, employees and affiliates (“Client Indemnified Parties”) from and against any third-party claim made against a Client Indemnified Party to the extent alleging that the Platform or the Services, when used by Client as authorized in this Agreement, infringes such third-party’s U.S. patent, copyright, trademark or trade secret, and will indemnify and hold harmless Client Indemnified Parties against any damages or costs awarded against Client (including reasonable attorneys’ fees) or agreed in settlement by Yotpo resulting from the claim.
b. Indemnification by Client– Client will defend Yotpo, its officers, directors, employees, and affiliates (“Yotpo Indemnified Parties”) from and against any third-party claim, demand, suit, or proceeding made or brought against a Yotpo Indemnified Party to the extent resulting from Client Content, or Client’s breach or alleged breach of Section 5 (Client’s Obligations), Client’s use of the Services or any activities other than in accordance with these Terms; and will indemnify and hold harmless Yotpo Indemnified Parties against any damages or costs awarded against Yotpo Indemnified Parties (including reasonable attorneys’ fees) or agreed in settlement by Client resulting from the claim.
c. Procedures– The indemnifying party’s obligations in this Section 12 are subject to receiving (i) prompt written notice of the claim, (ii) the exclusive right to control and direct the investigation, defense and settlement of the claim and (iii) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Yotpo is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
d. Mitigation and Exceptions– In response to an actual or potential infringement claim, if required by settlement or injunction or as Yotpo determines necessary to avoid material liability, Yotpo may at its option: (i) procure rights for Client’s continued use of the Platform or the Services, (ii) replace or modify the allegedly infringing portion of the Platform or the Services to avoid infringement without reducing the Platform’s or the Services’ overall functionality or (iii) terminate the affected Order and refund to Client any pre-paid, unused fees for the terminated portion of the subscription Term. Yotpo’s obligations in this Section 12 do not apply (1) to infringement resulting from Client’s modification of the Platform or the Services or use of the Platform in combination with items not provided by Yotpo (including third-party platforms), (2) to infringement resulting from Services other than the most recent release, (3) to unauthorized use of the Platform or the Services, or (4) if Client settles or makes any admissions about a claim without Yotpo’s prior written consent. This Section 12 sets out Client’s exclusive remedy and Yotpo’s entire liability regarding infringement of third-party intellectual property rights.
13. THIRD-PARTY PLATFORMS AND CONTENT
a. Client may choose to use the Services with certain platform(s), publisher(s), add-on, website(s), service or product not provided by Yotpo that Client elects to integrate or enable for use with the Services (“Third-Party Platforms“). Third-Party Platforms are not responsible for the Services or the obligations between Yotpo and Client pursuant to these Terms. Use of Third-Party Platforms is subject to Client’s agreement with the relevant provider and not this Agreement, except where expressly agreed by a Third-Party Platform, Third-Party Platform cannot provide assistance with the installation or use of the Services. Yotpo does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use any and all data including (without limitation) End-User data. If Client enables a Third-Party Platform to integrate or otherwise operate in connection with the Services, Client authorizes Yotpo to (i) access and exchange Client Content and End-User data (including personally identifiable information) with the Third-Party Platform on Client’s behalf and (ii) if required by the applicable Third-Party Platform, retain Client Content and/or End-User data for such time period and otherwise in accordance with the terms of the applicable Third-Party Platform, subject in each case to Yotpo’s obligations under the Data Processing Addendum.
b. If Client is redirected to linked sites and content in connection with Client’s use of any Third-Party Platform, Yotpo recommends Client carefully read and abide by the terms of use and privacy policies of such sites and content. Any opinions, advice, statements, content, services, offers or other information expressed or made available by any Third-Party Platform, are those of the respective third-party author(s) or distributor(s) and do not necessarily state or reflect those of Yotpo.
14. TERM, TERMINATION, AND PAYMENT OF FEES
a. This Agreement is effective between Client and Yotpo as of the date of Client’s accepting this Agreement. The initial term of your subscription to the Services is as specified on your Order. THEREAFTER, THE TERM OF THIS AGREEMENT SHALL AUTOMATICALLY RENEW FOR THE SHORTER OF THE SUBSCRIPTION TERM OR ONE (1) YEAR (EACH, A “RENEWAL TERM”) UNLESS A PARTY NOTIFIES THE OTHER PARTY IN WRITING AT LEAST THIRTY (30) DAYS IN ADVANCE OF THE END OF THE THEN-CURRENT TERM THAT IT DOES NOT WISH TO RENEW THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, FOR ANY RENEWAL TERM, YOTPO RESERVES THE RIGHT UPON WRITTEN NOTICE TO CLIENT AT LEAST THIRTY (30) DAYS IN ADVANCE OF THE END OF THE THEN-CURRENT TERM TO INCREASE THE PRICING IN EFFECT DURING THE IMMEDIATELY PRECEDING ONE-YEAR PERIOD. For free services, the subscription term will be the period during which you have an account to access the free services and will remain in effect for so long as Client has an applicable Order in effect, unless otherwise terminated in accordance with the provisions herein.
b. Either Yotpo or Client may terminate this Agreement if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
c. In any event of termination of this Agreement by either Party, all rights granted hereunder shall immediately expire and any and all use and/or exploitation by Client and/or on its behalf of the Services or the Platform, and any part thereof, shall immediately cease and expire. The following Sections shall survive termination or expiration of the Terms: 2, 3.2, 7-9, 11-17.
d. In addition to termination rights under Section 12.d, upon termination by Yotpo, under this Section 14, Client shall promptly pay Yotpo any and all applicable fees and payments due up to and including the date of termination. Upon such termination by Client under this section, Yotpo shall promptly refund to Client any fees previously paid by Client that pertain to any Services not yet provided as of the date of termination. Except in the event of termination caused by an uncured, material breach, fees paid are non-refundable.
e. Fees are as described in each Order. All fees and expenses are non-refundable. Bonus, or additional, credits provided by Yotpo to Client for any reason are not refundable or redeemable for cash at any time.
f. Yotpo’s fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, other charges, domestic or foreign imposed by any federal, state, or local tax authority with respect thereto including, for example, GST, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with Client’s orders. If Yotpo has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 14, Yotpo will invoice Client and Client will pay that amount unless Client provides Yotpo with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Yotpo is solely responsible for Taxes assessable against it based on its income, property and employees.
15. NOTICES, GOVERNING LAW AND JURISDICTION
a. If you reside in the U.S. or your business is located in the U.S., this Agreement is to be construed in accordance with and governed by the laws of the State of New York, United States, without giving effect to its provisions regarding conflict of laws. Each party hereby irrevocably consents to tbe subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such venue and courts.
b. If you reside outside of the U.S. or your business is located outside of U.S., this Agreement is to be construed in accordance with and governed by the laws of England and Wales, without giving effect to its provisions regarding conflict of laws. Each party hereby irrevocably consents to the subject to the exclusive jurisdiction and venue of the courts located in London, England, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such venue and courts.
c. All notices are to be sent in writing by email to Yotpo at: legal_notices@yotpo.com, to Client at the address provided on the Order. Any such notices shall be deemed to have been given upon delivery.
16. PUBLICITY
a. Client Name/Logo. Yotpo may use Client’s name and/logo to identify Client as a Yotpo customer of the Services, including without limitation, on Yotpo’s public website and marketing materials. Any such use shall be subject to Yotpo’s compliance with any written guidelines that Client may deliver to Yotpo regarding the use thereof. Client hereby grants Yotpo a non-exclusive, worldwide, royalty free and fully paid up right and license to utilize its name, logo, trade-marks and trade names for the purposes set forth above.
b. Reference. Client agrees to serve as reference customer for prospective customers, investors, media or analysts of Yotpo and make appropriate representatives available via telephone for such purposes.
c. Case Study. Client agrees to assign an appropriate representative to create a mutually agreed upon written customer case study and/or video testimonial that may be published and used as Yotpo marketing collateral.
d. Press Release. Upon request, Client agrees to participate in a joint and mutually agreed upon press release.
17. GENERAL
a. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and if such provision is determined to be invalid or unenforceable nonetheless, the provision shall be deemed to be severable from the remainder of the Agreement and shall not cause the invalidity or unenforceability of the remainder of the Agreement.
b. Client acknowledges and agrees that Yotpo has the right, at any time and for any reason, to redesign or modify the Yotpo Materials and other elements of the Platform or any part thereof.
c. This Agreement constitutes the entire agreement between Client and Yotpo respect to the subject matter herein and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, including previous non-disclosure agreements between the parties. Yotpo may update this Agreement from time to time. We will provide prior written notice of any material updates at least thirty (30) days in advance of the effective date; provided however, Yotpo may not be able to provide at least thirty (30) days prior written notice of material updates to this Agreement that result from changes in law, regulation, or requirements, directly or indirectly, from telecommunications providers. Except as otherwise specified by Yotpo, updates will be effective upon the effective date indicated. The updated version of this Agreement will supersede all prior versions. Following such notice, Client’s continued use of the Services and Platform on or after the effective date of the updated Agreement constitutes Client’s acceptance of such updated Agreement . If you do not agree to the updated version of this Agreement , you must stop using the Services and Platform immediately.
d. No failure, delay or default in performance of any obligation of a party (other than a payment obligation) shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; epidemic, pandemic or quarantine; earthquake, tornado or other natural disaster; failure or diminishment of power or telecommunications or data networks or services; distributed denial of service (DDoS) or other cyberattacks; or refusal of a license by a government agency. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
e. Neither party may assign this Agreement without the prior written consent of the other party, not to be unreasonably withheld, provided that either party may assign or transfer this Agreement, without the prior written consent of the other party, to an affiliate or in connection with a sale or merger of all or substantially all of the assigning party’s business or assets. Any unauthorized assignment will be void and of no force or effect.
f. Except as expressly stated herein, nothing in this Agreement shall be considered as granting any rights to third parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
g. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
h. Yotpo may use subcontractors and permit them to exercise Yotpo’s rights (including without limitation the provision of customer support), but Yotpo remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
i. In any event of a conflict or inconsistency between the terms herein and the terms of the Order Form, the terms of the Order Form shall prevail. Any additional or conflicting terms contained in purchase orders issued by Client with respect to the subject matter hereof are hereby expressly rejected and shall have no force or effect on the terms of this Agreement or any Order Form.
J. EXCEPT FOR CLAIMS RELATED TO OR ARISING FROM CLIENT’S INDEMNITY OBLIGATIONS CONTAINED IN SECTION 12 HEREOF OR CLIENT’S PAYMENT OBLIGATIONS HEREUNDER, CLIENT AND YOTPO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES OR THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION SHOULD HAVE REASONABLY BEEN DISCOVERED. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
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