Yotpo is proud to offer Ocean to our valued clients and their shoppers. A subscription shopping membership that allows customers to connect with their favorite brands and retailers and receive exciting benefits in exchange for shopping with them.
These Ocean Terms and Conditions (“Terms and Conditions”) govern your participation as an Ocean brand and your access to and use of the Ocean websites, mobile apps, widgets, APIs, emails, and other online products and services (collectively, “Ocean“).
As a customer of Yotpo, these Terms and Conditions are meant to be read in conjunction with the Master Service Agreement between you and Yotpo or if no such Master Services Agreement exists, then by Yotpo’s online Terms of Service governing your relationship with Yotpo (with the Master Services Agreement or online Terms of Service, as applicable, being the “Agreement“). For the avoidance of doubt, any schedules, exhibits or documents referenced in the Agreement shall be considered an integral part of the Agreement. Capitalized terms not defined herein shall have the meaning prescribed to them in the Agreement. Should any conflict exist between these Terms and Conditions and the Agreement, these Terms and Conditions shall control to any extent the conflict is concerned with or contemplates Ocean, otherwise the Agreement shall control.
As further described in these Terms and Conditions, you and Yotpo may choose to terminate your participation in Ocean, or Yotpo may choose to suspend the Ocean program entirely, at any time. For the avoidance of doubt, any rights or obligations in the Agreement shall apply separate and apart from these Terms and Conditions, and should you choose to terminate your participation in Ocean, or should Yotpo choose to suspend the Ocean program, the Agreement will still be in full force and effect unless otherwise terminated according to the provisions of the Agreement.
By participating or by not opting out of your participation in Ocean in accordance with these Terms and Conditions, you agree to be bound by these Terms and Conditions. Please read these Terms and Conditions carefully as they affect your legal rights and obligations. If you do not agree to these Terms and Conditions, please notify us immediately. You affirm that you have the capacity to agree to these Terms and Conditions. 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.
1. Your Participation in Ocean
a. Participation. Subject to Client’s compliance with these Terms and Conditions and any component parts such as the Agreement, and Data Sharing Agreement together with any other applicable policies, Client may participate in Ocean.
b. Restrictions on 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 these Terms and Conditions with/to any other party, entity or person, (ii) transfer, distribute, copy all or any part of Ocean and/or the Ocean Materials as that term is defined below, (iii) refer to Ocean by use of framing and/or deep-linking, (iv) make use of Ocean 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 Ocean 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 Ocean or other Yotpo services, brand or image, (vii) transmit any viruses or other harmful, infringing, illegal, disruptive or destructive content, messages or files, (viii) access Ocean 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 Ocean, (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 (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 Ocean 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 Ocean, (xiii) remove, change or modify any trademarks from or attach any additional trademarks to Ocean, (xiv) use Ocean 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.
2. Ownership and Client Content
a. Ownership of Content. Neither party grants the other any rights or licenses not expressly set out in these Terms and Conditions. Except for Yotpo’s rights under these Terms and Conditions, between the parties, Client retains all intellectual property and other rights in its intellectual property and Client Content. For the purposes of these Terms and Conditions, the definition of Client Content (as defined in the Agreement) is hereby expanded to include all content, data and other information processed by Yotpo in connection with the provision of the Services (as defined in the Agreement), including Client’s participation in Ocean. Except for Client’s rights under these Terms and Conditions, Yotpo and its licensors retain all intellectual property and other rights in Ocean, 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 any and all Usage Data (as defined below) and all data, content and other information collected by or generated via Ocean (the “Ocean Materials“). If Client provides Yotpo with feedback or suggestions regarding Ocean or other Yotpo offerings, Yotpo may use the feedback or suggestions without restriction or obligation.
b. License Granted. Client grants Yotpo a worldwide, non-exclusive, transferable, royalty-free license during the Term, 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) for and in connection with Ocean and to analyze, improve, develop, update and support Ocean and other Yotpo’s products and services, (ii) to comply with law, (iii) to detect, prevent and investigate security incidents, fraud, spam or unlawful use of Ocean, (iv) to address technical problems, address support requests, and attend to the proper working of Ocean, (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 Sharing Agreement, described in Section 3 below, for any other lawful purpose. Such license will apply to any form, media or technology now known or hereafter developed. For clarity, the foregoing license grant includes the right for Yotpo to display to end users any Client Content.
3. Privacy
The Data Sharing Agreement (currently available at https://www.yotpo.com/data-sharing-agreement/) (“DSA“) explains how and why we collect, use, and share information about end users and Client Content. Client understands that through its participation in Ocean, Client consents to the collection, processing and use of Client Content by Yotpo as set forth in the DSA.
4. Initial Period and Sponsorship of Benefits
By agreeing to these Terms and Conditions you recognize and acknowledge that the Ocean program is currently in beta stages, as a result, some features of the Ocean program may be added, modified, paused, or eliminated at Yotpo’s sole discretion. This beta period will continue until Yotpo issues a notification stating that the beta testing stage of Ocean has ended (the time until such notification being known as the “Initial Period“). At the end of the Initial Period Yotpo reserves the right to (i) pause, delay or suspend Ocean entirely; or (ii) allow your continued participation on the Ocean program on the same or different terms. For the avoidance of doubt nothing in these Terms and Conditions obligates Client to participate in Ocean after the Initial Period.
5. Copyright, Trademark, the DMCA, and Takedowns
Yotpo respects the intellectual property of others and requires that users of Ocean do the same. We may remove any infringing material from Ocean at our sole discretion. If you believe that anything on Ocean infringes a copyright or a trademark that you own or control, you may notify Yotpo’s Designated Agent by email at: legal@shopocean.co
Also, please note that if you knowingly misrepresent that any activity or material on Ocean is infringing, you may be liable to Yotpo for certain costs and damages.
6. Disclaimers and Limitation of Liability
a. YOUR PARTICIPATION IN THE OCEAN PROGRAM IS AT YOUR SOLE RISK. THE OCEAN PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOTPO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. 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 THESE TERMS, OCEAN 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.
c. 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.
d. 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 THE CHANCE TO PARTICIPATE IN OCEAN.
7. Governing Law and Notices.
a. Governing Law. These Terms and Conditions are 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.
b. Notices. All notices are to be sent in writing by email to Yotpo at: legal@shopocean.co and to you at the address listed in the Agreement. Any such notices shall be deemed to have been given upon delivery.
8. Term and Termination
a. Termination Procedures. You may terminate these Terms and Conditions at any time and for any reason by providing written notice to Yotpo. Yotpo may immediately terminate these Terms and Conditions or immediately suspend or terminate your participation in Ocean or any aspects of Ocean at Yotpo’s sole discretion and without notice, including, without limitation, for your breach of these Terms and Conditions or other conduct by you that Yotpo considers inappropriate. Yotpo may, but is under no obligation to, send notice of such termination or suspension.
b. Effect of Termination. Upon termination of these Terms and Conditions by either party, your right to participate in Ocean will terminate immediately. You agree that neither Yotpo or any of its affiliates shall be liable to you or to any third party for any modification, suspension or discontinuation of Ocean, and you further agree that we will have no liability to you for any costs, losses, damages, or liabilities arising out of or related to our termination of these Terms and Conditions due to your breach. Upon termination of your participation in Ocean, or upon request by Yotpo, you must destroy all Ocean Materials and all related documentation including without limitation immediately discontinuing the use of any links to Ocean. Any provisions of these Terms and Conditions, which, by their terms, ought to survive, shall survive any termination of these Terms and Conditions.
9. Use of Logo
Yotpo may use Client’s name and/logo to identify Client as an Ocean participating Brand, including without limitation, on the Ocean app and any other public websites 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, trademarks and trade names for the purposes set forth above.
10. Miscellaneous
a. Entire Agreement. These Terms and Conditions, together with the Agreement, and the DSA constitute the entire agreement between Client and Yotpo regarding the participation of Client in Ocean. Yotpo’s failure to exercise or enforce any right or provision of these Terms and Conditions will not operate as a waiver of such right or provision. If any part of these Terms and Conditions is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Client may not assign or transfer any of your rights or obligations under these Terms and Conditions without Yotpo’s consent. Yotpo may freely assign any of our rights and obligations under these Terms and Conditions.
b. Change of Terms. These Terms and Conditions are subject to revision by Yotpo. Though we may occasionally notify you about important updates to these Terms and Conditions, Yotpo reserves the right to make changes to these Terms and Conditions, without notice, at any time .]. Any changes will be effective on t date such changes are posted on our website, unless otherwise communicated to you. No changes to these Terms and Conditions will apply to your participation in Ocean prior to the effective date of the changes (unless the notice specifies otherwise). You should monitor these Terms and Conditions for changes. If you do not accept the changes, you should notify Yotpo at legal@shopocean.co with a cc to legal_notices@yotpo.com that you wish to terminate your involvement in the Ocean Program in accordance with Section 8(a) of these Terms and Conditions. If any change is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes or conditions. Client’s continued participation in Ocean after any change, will indicate Client’s acceptance and agreement to such change.
c. Comments. If you have any comments, complaints, claims, or questions regarding these Terms and Conditions, please contact us at: legal@shopocean.co. Any such notices shall be deemed to have been given upon delivery.
