Terms of Service — May 2020

Last updated on May 10, 2020

The Terms of Service (these “Terms” also referred to as this “Agreement”) govern your use of and access to marketing technology and related services (the “Services”) provided by Yotpo, Inc. (together with its Affiliates (as defined below), “Yotpo”, “we”, “us” or “our”) to you. By using any of the Services, you agree to be bound by these Terms, as updated from time to time. For the purpose of these Terms, an “Affiliate” means, with respect to an entity, any other entity that controls, is controlled by, or is under common control with such entity, directly or indirectly. For the purposes of clarity, Yotpo Affiliates include: Yotpo Ltd., Yotpo, Inc., Yotpo UK Limited and SMSBump Ltd.

The terms “you,” “your” and “Client” and “Customer” will refer to you. To be eligible to register for a customer account in order to use the Services, you must review and accept these Terms by clicking on the “I Accept” or “Get Started” button or other mechanism provided. If you are registering for a customer account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Yotpo that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” and “Client” or “Customer” will refer to that organization).

BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT.

SERVICES

Yotpo’s platform is a unique, proprietary ecommerce marketing platform the (“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 collectively as the “Products”). “Services,” as used in the Agreement, refers to your access to the Platform and the Products. All content, data and other information that you submit to the Services through your use thereof, including, without limitation, such information as you may collect through the Services from End-Users (defined below), is “Your Content” for the purposes of this Agreement. Depending on the Products you are accessing, you may have access to the following functionality. If you are not accessing Products that offer the following functionality then the applicable terms do not apply:
1. User Generated Content– Certain Products enable you to collect, organize and use Your Content that may include, without limitation, text, videos, photographs and other user-generated content created or otherwise supplied by your customers, end users or parties with whom you interacts (collectively, “End-Users”) on your website, social media services, and third-party websites. An example of such functionality would be your use of the Platform to display an End-User’s photo of your product on your website.
2. Loyalty and Referrals– Certain Products enable you to provide End-Users with the ability to (i) earn loyalty points from you and apply applicable point balances to purchases from you and (ii) earn an incentive when the End-User refers a third-party purchaser to you. Your 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).
3. Reviews– Certain Products enable you to invite End-Users to write reviews. “Reviews” are Your 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 you or any other third party and may, subject to the Agreement, include any Reviews that are imported through the Platform from third-party sites.
4. SMSBump– Certain Products enable you to engage with End-Users using SMS/MMS/text messages. Through an application provided by Yotpo, or through the Platform, you can enable features whereby you can send marketing and other messages via SMS/MMS/text message regarding your products or services.
PROPRIETARY RIGHTS
1. 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, you retain all intellectual property and other rights in its intellectual property and to Your Content provided to Yotpo. 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 (the “Yotpo Materials”). If you provide Yotpo with feedback or suggestions regarding the Service or other Yotpo offerings, Yotpo may use the feedback or suggestions without restriction or obligation.
2. Usage Data– Yotpo may generate technical logs, data and learnings about your use and End-Users’ use of the Services (the “Usage Data”) and Your 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.
LIMITED ACCESS AND LIMITED LICENSE TO YOUR CONTENT
1. Access to the Services- Subject to the terms and conditions set forth herein, you may access and use the Services only for your internal business purposes in accordance with the terms of this Agreement. Access to the Services is limited to your employees and contractors acting for the sole benefit of you (“Permitted Users”). You and your Permitted Users may need to register for a Yotpo account in order to access or use the Services. You are responsible for ensuring that account registration information is accurate, current and complete.
2. License to Your Content- you grant to Yotpo a worldwide, non-exclusive, transferable, revocable, royalty-free license to use, transfer, copy, reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or through third parties, create derivative works of Your Content and otherwise use and commercially exploit Your Content in any media formats (i) to the extent necessary to provide you 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 Agreement, for any other lawful purpose, including without limitation, for the purposes set forth in Section 2.2 hereof. Such license will apply to any form, media, or technology now known or hereafter developed.
LIMITATIONS OF USE
1. Your use of the Services shall be limited to your own internal business use. Except as specifically permitted herein, you shall not (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share any of your 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, or 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 4.2; (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. You are solely responsible for obtaining, paying for, repairing and maintaining all the equipment, software, hardware and services required for you to access to the Services.
2. you 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 you 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 your mailing list; (vii) failing to comply with any request from a recipient to be removed from your mailing list within 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 your 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.
YOUR OBLIGATIONS
1. Compliance with Law– you represent, warrant and covenant to Yotpo that your 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; or (iv) requirements for websites and mobile applications, online behavioral advertising, or online tracking technologies (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), 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.
2. Privacy and Cookie Notices– you 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 your use of the Services, including without limitation, such collection, use and disclosure contemplated by this Agreement. If you are subject to the GDPR or ePrivacy Directive or other Laws requiring you to give notice of, or obtain consent to, the use of cookies or similar technologies on your websites or other online services, then you shall give such notices and obtain such consents with respect to any Yotpo cookies or similar technologies utilized on your websites or other online services.
3. Restricted Data– you shall ensure that Your 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, mother’s maiden name or date of birth, (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 13 years of age regulated by COPPA 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.
4. Security– you shall use your best efforts to prevent unauthorized access to or use of the Services through you or your 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.
5. Obligations Regarding Your Content– you acknowledge that the Services are provided by Yotpo to you 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 you hereunder. As a result, you acknowledge that Yotpo relies on your rights to Your Content in order to provide the Services. you are solely responsible for the accuracy, content and legality of Your Content. Yotpo shall not be liable for Your Content, and shall be entitled, in its sole discretion, to edit or remove from the Platform Your Content which Yotpo reasonably believes to be inaccurate, inappropriate or otherwise not in compliance with the Agreement or applicable law. NOTHING IN THE AGREEMENT OBLIGATES YOTPO TO DISPLAY ANY YOUR CONTENT THAT YOTPO REASONABLY BELIEVES TO BE INACCURATE, INAPPROPRIATE OR OTHERWISE NOT IN COMPLIANCE WITH THE AGREEMENT OR APPLICABLE LAW OR TO USE SUCH YOUR CONTENT AT ALL OR IN A CERTAIN MANNER. You 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 you shall comply with any such takedown notice received in respect of Your Content, in each case, to the extent required by applicable law.
6. Rights in Your Content– you represent and warrant to Yotpo that you have given all notices and obtained all rights consents, assignments, licenses, permissions and authorizations (including the waiver of any moral rights) necessary for you to transfer to Yotpo and for Yotpo to collect, use and share Your 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 Your Content or your activities relating to your use of the Services (including, without limitation, the Instagram Platform Policy).
7. Permitted Users and End-Users– you shall ensure that each of your Permitted Users and End-Users is legally bound by your terms of use, terms of service or such other legally binding agreement between you 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. you are solely responsible for all acts, omissions and activities of Permitted Users and End-Users, including their compliance with this Agreement.
8. Order Fulfillment– As between you and Yotpo, you are solely responsible for all customer service, order fulfillment and returns, and payment of taxes or charges associated with any products or services that you sell or markets in connection with the domains listed on the Yotpo Order Form.
9. Sending Messages to End-Users via the Services– To the extent that Yotpo provides you with access to functionality that allows you to send you communications by telephone, text/SMS/MMS message or email to End-Users, including, without limitation, marketing and advertising communications (“Your Messages”), you agree not to send any unsolicited, commercial communications. Further, you acknowledge that you are solely responsible for all content of Your Messages created by or on behalf of you and for your compliance with all Laws in connection with your use of the Services to send Your Messages. Accordingly, and notwithstanding any representation or warranty disclaimer in the Agreement, you represent, warrant and covenant 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 Your 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 Your 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 Your Messages. you acknowledge that the services may employ automated telephone dialing systems regulated by the TCPA to transmit Your Messages and you agree 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.
10. Limits on Certain Messages– By using functionality to send Your Messages to End-Users, you agree to make End-Users aware of their right to opt-out of any future messages. You 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. you agree that Yotpo reserves the right in its sole discretion to cap the number of Your Messages that may be sent in connection with the Services. Applicable message and data rates apply to such messages. You hereby acknowledge and agree that (i) Yotpo merely plays a technical role in transmitting or routing Your Messages sent by you as a conduit, (ii) that you are the sender of Your 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 you provides services utilizing the Services (“End-User Services”), none of whom is a third-party beneficiary of the Agreement, and (iv) you shall have sole responsibility and liability for Your Messages and for compliance with any Laws related to End-User Services. Yotpo may suspend or disable your ability to send messages through the Services at any time if Yotpo, in its sole discretion, believes you are sending messages in violation of the terms of the Agreement.
SUSPENSION OF SERVICE
1. Yotpo may suspend your access to the Service and related services if you breach Section 4 (Limitations on Use) or Section 5 (Your Obligations), or if your actions risk harm to other customers or the security, availability or integrity of the Service. Where practicable, Yotpo will use reasonable efforts to provide you with prior notice of the suspension. Once you resolve the issue requiring suspension, Yotpo will promptly restore your access to the Service in accordance with this Agreement. Yotpo reserves the right, but is not obligated, to monitor and audit your use of the Services for any reason or no reason, without notice, to ensure your compliance with this Agreement.
REPRESENTATIONS AND WARRANTIES
1. In addition to representations and warranties made elsewhere in this Agreement, you represent and warrant to Yotpo that: (i) you have, and will have at all times, all right, title and interest necessary to grant to Yotpo any and all licenses granted by you or your End-Users or other third parties hereunder for the purposes contemplated by this Agreement, including from your End-Users or any third-party site for the use of Your Content; (ii) have all necessary rights, permits and licenses under all Laws, rules and regulations to operate the domains listed on the Yotpo Order Form and to promote, offer for sale, and sell all products or services offered or sold in connection with such domains; (iii) Your Content complies, and will comply at all times during the term of this Agreement, with all Laws, rules and regulations, and the 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) you shall comply with all Laws, including without limitation, TCPA, CAN-SPAM Act and the Digital Millennium Copyright Act.
PRIVACY AND DATA PROTECTION
1. Yotpo may use account registration information and other Personal Information (as defined below) of Permitted Users collected in connection with their use of the Service as described in Yotpo’s Privacy Policy, as updated from time to time (currently available https://www.yotpo.com/privacy-policy/). you are responsible for any use of the Services by your Permitted Users and their compliance with this Agreement. You shall keep confidential you and your Permitted Users’ user IDs and passwords for the Services and shall be responsible for any actions taken through their respective accounts.
2. Yotpo’s Data Processing Agreement, as updated from time to time (currently available at www.yotpo.com/data-processing-agreement/ and, for SMSBump https://smsbump.com/page/privacy-policy). shall apply and form part of this Agreement when Your Content constitutes Personal Information subject to EU Data Protection Law or the CCPA.
DISCLAIMERS
1. 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 YOUR 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. YOU ARE RESPONSIBLE FOR EVALUATING THE CAPABILTIES AND FEATURS OF THE SERVICES AND MAKING ITS OWN DETERMINATION ABOUT WHETHER YOU ARE ABLE TO USE THE SERVICES IN COMLIANCE WITH LAWS. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR 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.
2. YOU ACKNOWLEDGE, 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 YOUR CONTENT IN CONNECTION WITH THE SERVICES.
3. 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.
LIMITATION OF LIABILITY
1. 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 INTERUPTION, 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.
2. 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.
3. 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.
INDEMNIFICATION
1. You agree to defend, indemnify and hold Yotpo and its Affiliates and its and their respective owners, shareholders, directors, managers, officers, Affiliates, employees, attorneys, agents and representatives harmless against any losses, expenses, costs, claims, and damages, including reasonable attorneys’ fees, experts’ fees and other reasonable costs (collectively, “Losses”) arising from, incurred as a result of, or in any manner related to any third-party claim resulting or arising from: (i) your breach of your representations and warranties contained herein, (ii) your or any End User’s use of the Platform or the Services in violation of this Agreement, (iii) your failure to obtain all End User Consents and Permissions, (iv) Your Messages, (v) Your Content, (vi) your products and/or services; and/or (vii) your gross negligence, fraud, bad faith, or willful misconduct, regardless of any negligence on the part of Yotpo.
THIRD PARTY PLATFORMS AND CONTENT
1. you may choose to use the Services with any platform, add-on, website(s), service or product not provided by Yotpo that you elect to integrate or enable for use with the Services (“Third-Party Platforms”). Use of Third-Party Platforms is subject to your agreement with the relevant provider and not this Agreement. 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 you enable a Third-Party Platform to integrate or otherwise operate in connection with the Services, you authorize Yotpo to access and exchange Your Content and End-User data (including personally identifiable information) with the Third-Party Platform on your behalf.
2. If you are redirected to linked sites and content in connection with your use of any Third-Party Platform, Yotpo recommends you 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.
TERMINATION AND EXTENSION
1. Yotpo may terminate these Terms and your access to and use of the Services immediately without notice for any reason or no reason. Upon termination by Yotpo, you shall immediately cease using the Platform. The following Sections shall survive termination or expiration of the Terms: 2, 3.2, 6, 8, 10-15.
DISPUTE RESOLUTION
1. If you reside outside of U.S. or your business is located outside of U.S.: If the Yotpo contracting entity is Yotpo UK Limited, then the Agreement shall be governed by and construed in accordance with the laws of England and Wales, without regard to the principles of conflict of law. If the contracting entity is SMSBump, the Agreement shall be governed by and construed in accordance with the laws of Bulgaria without regard to the principles of conflict of law therein. Regardless of the contracting entity, the application of the United Nations Convention of Contracts for the International Sale of Goods or other international laws is expressly excluded.
2. If you reside in the US or your business is located in the US: You and we agree to arbitrate any claim, cause of action, or dispute between you and us that arises out of or relates to any access or use of the Services for business or commercial purposes (“commercial claim”). This provision does not cover any commercial claims relating to violations of your or our intellectual property rights, including, but not limited to, copyright infringement, patent infringement, trademark infringement, or efforts to interfere with our Services or engage with our Services in unauthorized ways.
3. We and you agree that, by entering into this arbitration provision all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. THE PARTIES AGREE THAT EACH MAY BRING COMMERCIAL CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. You may bring a commercial claim only on your own behalf and cannot seek relief that would affect other parties. If there is a final judicial determination that any particular commercial claim (or a request for particular relief) cannot be arbitrated in accordance with this paragraph’s limitations, then only that commercial claim (or only that request for relief) may be brought in court. All other commercial claims (or requests for relief) remain subject to this paragraph. The Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. All issues are for an arbitrator to decide, except that only a court may decide issues relating to the scope or enforceability of this arbitration provision or the interpretation of the prohibition of class and representative actions. If any party intends to seek arbitration of a dispute, that party must provide the other party with notice in writing. This notice of dispute to us must be sent to the following address:
  Yotpo, Inc.
  400 Layette Street, 4th Floor
  New York, NY 10003
4. The arbitration will be governed by the AAA’s Commercial Arbitration Rules (“AAA Rules”), as modified by these Terms, and will be administered by the AAA. If the AAA is unavailable, the parties will agree to another arbitration provider or the court will appoint a substitute. The arbitrator will not be bound by rulings in other arbitrations in which you are not a party. To the fullest extent permitted by applicable law, any evidentiary submissions made in arbitration will be maintained as confidential in the absence of good cause for its disclosure. The arbitrator’s award will be maintained as confidential only to the extent necessary to protect either party’s trade secrets or proprietary business information or to comply with a legal requirement mandating confidentiality. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA Rules, except that we will pay for your filing, administrative, and arbitrator fees if your commercial claim for damages does not exceed $75,000 and is non-frivolous (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you do not wish to be bound by this provision (including its waiver of class and representative claims), you must notify us as set forth below within 30 days of the first acceptance date of any version of these Terms containing an arbitration provision. Your notice to us under this subsection must be submitted to the address above.
5. All commercial claims between us, whether subject to arbitration or not, will be governed by New York law, excluding New York’s conflict of laws rules, except to the extent that New York law is contrary to or preempted by federal law. If a commercial claim between you and us is not subject to arbitration, you agree that the claim must be resolved exclusively in the U.S. District Court for the Southern District of New York or a state court located in New York, NY, and that you submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a Dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial.
GENERAL
1. If any provision of the Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make f 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.
2. you acknowledge and agree 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.
3. Prior notice of changes: Yotpo may update these Terms of Service from time to time by providing you with prior written notice of material updates at least thirty (30) days in advance of the effective date. Notice will be given in your account portal or via an email to the email address owner of your account. This notice will highlight the intended updates. Except as otherwise specified by Yotpo, updates will be effective upon the effective date indicated at the top of these Terms of Service. The updated version of these Terms will supersede all prior versions. Your acceptance: Following such notice, your continued access or use of the Services on or after the effective date of the changes to the Terms constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the Services. Exceptions: Yotpo may not be able to provide at least thirty (30) days prior written notice of updates to these Terms that result from changes in the law or requirements from telecommunications providers.
4. 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.
5. 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.
6. 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.
7. 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.
8. YOU AGREE THAT YOU MUST COMMENCE ANY CAUSE OF ACTION AGAINST YOTPO ARISING OUT OF OR RELATED TO THE SERVICES OR THE PLATFORM WITHIN THREE (3) MONTHS OF WHEN SUCH CAUSE OF ACTION AROSE. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.