Terms of Service

1. Services; Acceptance of Terms

The Terms of Service herein (these “Terms”) govern your use of and access to certain marketing technology and related services (the “Services”) provided by Yotpo, Inc. (together with its Affiliates (as defined below), “Yotpo”) to you. By using any of the Services or using the Yotpo web site www.yotpo.com (the “Site”) in any way, you agree to be bound by these Terms, the Yotpo Privacy Policy and the Yotpo Data Processing Agreement, which provides further details about Yotpo’s compliance with the General Data Protection Regulation (“GDPR”). 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.

The Services provided by Yotpo consist of providing you with certain limited access (via the Site) to Yotpo’s proprietary platform (the “Platform”) of tools, content, and other software that enable you to, without limitation, collect, organize and use content created or otherwise supplied by your customers or certain other third parties (“End Users”) on your website, social media services, and third-party websites (such content collectively referred to as “User Generated Content” or “UGC”).

The Platform allows you to collect, organize and use UGC, including, without limitation, any and all material, text, videos, photographs and information or other data (including Reviews, as defined below) submitted by you or on your behalf or your End-Users to Yotpo through the Platform (collectively, “Submitted UGC”). Submitted UGC may include opinions, product or service ratings or reviews, articles, written expressions, in any form or media, Instagram photos and/or any works of authorship created by the End-User, you or any other third party (collectively, “Reviews(s)”) and may, subject to these Terms, include any Reviews that are imported through the Platform from third-party sites (“Imported Reviews”).

2. OWNERSHIP OF PROPRIETARY RIGHTS

2.1 OWNERSHIP OF SUBMITTED UGC. As between you and Yotpo, all the Intellectual Property Rights (as defined below) in and to the Submitted UGC are your property and you shall retain all right, title and interest in connection therewith. “Intellectual Property Rights” means worldwide (a) rights associated with any patents, patent applications, patent disclosures, industrial designs, inventions and improvements (whether patentable or not), works of authorship, trademarks, service marks, logos, trade names, trade dress and goodwill rights whether or not registered, advertising and promotional material, domain names and web presence, designs and photography including copyrights and copyrightable works (including computer programs) and registrations and applications therefor, any software, algorithms, firmware, or source code, trade secrets, know-how, database rights, drawings and all other forms of intellectual property and all tangible and intangible representations and manifestations of such intellectual property (collectively, “Intellectual Property”); (b) rights analogous to those set forth in subsection (a) and any other proprietary rights relating to intangible property; and (c) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.

2.2 YOTPO IP. All the Intellectual Property Rights to Yotpo Intellectual Property, evidenced by or embodied in and/or attached/connected/related to the Platform (with the exception of the Submitted UGC), including without limitation any underlying software, platforms, algorithms, technology, site design, any information, services, texts, files, Platform and product documentation, Yotpo videos, various applications, social graphs, organization, structure, specifications, application “look and feel,” navigation, features and related content that may be created in connection with the use of or registration to the Platform and/or other proprietary materials (“Yotpo Materials”) are the property of Yotpo and/or its respective Affiliates and Yotpo and/or its respective Affiliates shall retain all right, title and interest in connection therewith.

No transfer or grant of any ownership rights to any Yotpo Intelectual Property, including, without limitation any Yotpo Materials, is made or is to be implied by any provision of this Agreement or by any other provision contained in the Platform with respect to the Yotpo Materials or otherwise.

3. LIMITED LICENSE TO ACCESS THE PLATFORM

3.1 LICENSE TO THE PLATFORM. Subject to the terms and conditions set forth herein Yotpo hereby grants to you, and you accept, a personal, nonexclusive, non-transferable, non-sublicensable, limited, fully revocable license to access and make use of the Platform.

3.2 LICENSE TO SUBMITTED UGC. Nothing contained herein shall be construed as Yotpo limiting your use of the Submitted UGC at its discretion, subject to compliance with applicable law and the rights, if any, of the End-User or any third party. Without limiting your ownership and use of the UGC, by submitting, transmitting and/or allowing End Users to submit or transmit any UGC through the Platform, you represent any such End User has granted Yotpo and you a nonexclusive, perpetual, irrevocable, worldwide, fully paid-up, royalty-free license for any purpose, including, without limitation to use, transfer, copy, reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or through third parties, create derivative works of Submitted UGC and otherwise use and commercially exploit any Submitted UGC in any media formats. Such license will apply to any form, media, or technology now known or hereafter developed. This section does not affect any rights you may have under applicable data protection laws.

4. LIMITATIONS ON USE

Your use of the Platform 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 Platform and/or the Yotpo Materials; (iii) refer to the Platform by use of framing and/or deep-linking; (iv) make use of the Platform 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 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 commercial advertising and informational announcements (provided that you shall at all times remain free to distribute, publish, send, or facilitate the sending of unsolicited mass messages, promotions, advertising, or solicitations that do not violate the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (“CAN-SPAM”) and/or any applicable law, including, without limitation, as permitted below in Section ‎6); (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 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 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 Platform.

5. OBTAINING APPLICABLE CONSENTS AND AUTHORIZATIONS

Without limiting any of these Terms, as a prerequisite for allowing your End-Users to access the user front end of the Platform (“Review Tool”) and/or submit Submitted UGC through the Review Tool, you represent and warrant that each of your 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 that: (i) restricts the End Users’ use of the Review Tool to such End-Users’ personal and non-commercial use only, and (ii) contains terms no less restrictive and protective of Yotpo and Yotpo’s Intellectual Property Rights as these Terms, including but not derogating from those terms set forth in Sections 2, 3.2, 4, 7 and 9 hereto. You represent and warrant to Yotpo that you have obtained: (a) all necessary rights in and to the Submitted UGC, including without limitation, any End-User consents, assignments, licenses, permissions and authorizations (including the waiver of any moral rights) necessary for Yotpo to use the Reviews and any other Submitted UGC for any lawful purpose, (b) End-Users’ explicit consent (i.e., opt-in) to receive post-sale emails sent by you (via Yotpo as a mere conduit) containing reminders to submit Reviews and containing recommendations and/or links to third party goods and/or services, as required by applicable law, (c) permissions, authorizations and licenses, if any, required by applicable law or third-party website or application terms and/or policies (including without limitation the Instagram Platform policy), for your transfer to and use by Yotpo of your End Users’ private and personally identifiable information and any Submitted UGC for the purpose of provision of the Services, sending applicable emails and recommendations, operation and improvement of the Platform, use of targeted behavioral advertisements and analysis and transfer to third parties for all of these purposes ((a)-(c), collectively, “End User Consents and Permissions”).

6. CLIENT’S SERVICES/PRODUCTS AND MESSAGES

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 market in connection with the domains you associate with the Platform, Review Tool or the Services.

You hereby acknowledge and confirm that you are solely responsible for the content of any and all messages sent to your End-Users by and/or through the Platform (“Messages”). Without limiting any of the terms and conditions contained herein, and any other obligations you may have under the CAN-SPAM Act and/or any applicable law, you shall uphold the following standards as a minimum in respect of any and all Messages: (i) include a conspicuous identifier and a valid physical address; (ii) include a valid return address and any additional contact information you may have; (iii) not use or otherwise contain deceptive or misleading subject headings or other content; (iv) in respect of advertisements and/or promotional transmissions, note in the heading and at the beginning of the transmission that the transmission is an advertisement; (v) include a simple and user-friendly opt-out mechanism, including by email, in all transmissions; and (vi) stop any and all transmissions to any user in the event said user opts-out or otherwise objected to receiving transmissions; and (vii) send transmissions strictly to End Users who opted-in to receive them.

You hereby acknowledge and agree that Yotpo merely plays a technical role in transmitting or routing Messages as a conduit, and that you shall have sole responsibility and liability for any Messages.

7. SUBMITTED UGC

Yotpo shall not be liable for any Submitted UGC, and shall be entitled, under its sole discretion, to edit or remove from the Platform any Submitted UGC for any reason or no reason. NOTHING IN THESE TERMS OBLIGATES YOTPO TO DISPLAY ANY SUBMITTED UGC OR TO USE ANY SUBMITTED UGC 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 any Submitted UGC, in each case, to the extent required by applicable law.

8. WARRANTIES AND REPRESENTATIONS

You represent and warrant to Yotpo that: (a) 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 the Submitted UGC; (b) has all necessary rights, permits and licenses under all applicable laws, rules and regulations to operate the domains you associate with the Platform, the Review Tool or the ServIces and to promote, offer for sale, and sell all products or services offered or sold in connection with such domains; (c) any and all Submitted UGC complies, and will comply at all times during the term of this Agreement, with all applicable laws, rules and regulations, and these Terms 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 (d) you shall comply with all applicable laws, including without limitation, CAN-SPAM and the Digital Millennium Copyright Act.

9. PRIVACY & DATA PROTECTION

Yotpo is firmly committed to protecting the privacy of your data and the data of your End Users. By using the Services, you acknowledge and agree that you have read and understood Yotpo’s Privacy Policy, which governs how Yotpo collects, uses and shares you or your End Users’ data. You also acknowledge and agree to comply with all applicable security, privacy and data protection laws and regulations when using the Services.

If: (a) you are established in the European Economic Area (EEA); (b) you collect Reviews and/or personal information from customers in the EEA; or (c) you are otherwise subject to the requirements of the GDPR, Yotpo’s collection and use of personal information of any European residents is also subject to our Data Processing Agreement. Nothing in these Terms affects any rights you may have under applicable data protection laws.

You agree that Yotpo may protect and improve the Services through analysis of your use of the Services, your End Users’ use of the Services, and/or your and your End Users’ personal information in anonymized, pseudonymized, de-personalized and/or aggregated form. If applicable law requires, you agree to explain this to your End Users in your privacy policy.

You represent and warrant that, when using the Services, you are solely responsible for complying with all applicable data protection, security and privacy laws and regulations (including, where applicable, the GDPR and the EU e-Privacy Directive/Regulation), including without limitation any notice and consent requirements. This includes without limitation the collection and processing by you of any personal data, when you use the Services to send marketing and other electronic communications to individuals and when using cookies and similar technologies on your website (including, in particular, those which we place for you at your request as part of the Services, such as to undertake analytics for you). If applicable law requires, you must provide and make available to your End Users a legally compliant privacy policy. If applicable law requires, you must provide and make available to your End Users a legally compliant cookie policy. You must capture valid consent, both for you and us, for any cookies or similar technologies used on or through your website (including those we drop on your request or with your permission) where required, including, where applicable, by the EU e-Privacy Directive/Regulation and under national laws implementing the same. Please see our Privacy Policy for more information about how Yotpo uses cookies and similar technologies.

10. DISCLAIMER

THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY AND ALL YOTPO MATERIALS, THE SERVICES (INCLUDING WITHOUT LIMITATION INSTALLATION, INTEGRATION AND IMPLEMENTATION SERVICES) AND CONTENT ARE PROVIDED BY YOTPO “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED. 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. 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. YOTPO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, THE YOTPO MATERIALS OR OTHER CONTENT AVAILABLE THROUGH THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. 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. .

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

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 CLIENT 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.

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.

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 THE SERVICES TO YOU AND BY YOU TO USE THE SERVICES AND THE PLATFORM.

12. INDEMNIFICATION

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 these Terms; (ii) the Submitted UGC and/or your or your End-Users’ use of the Platform or the Review Tool, (iii) your products and/or services; and/or (iv) your negligence, fraud, bad faith, or willful misconduct, regardless of any negligence on the part of Yotpo.

13. THIRD PARTY CONTENT

To the extent that the Platform contain links to outside services and resources, Yotpo does not control the availability and content of those outside services and resources. Any concerns regarding any such service or resource, or any link thereto, should be directed to such particular service or resource provider. Links are provided only as an informational resource, simply as a service and only for your convenience. Yotpo is not responsible or liable for such links and/or content or services (e. g. using photos or interacting with End-Users via Instagram). Should you leave the Platform via a link contained therein and/or view content that is not provided by Yotpo, you do so at your own risk and Yotpo shall not be responsible or liable for damages or losses caused in connection therewith. In as much as you are redirected to linked sites and content, Yotpo recommends you carefully read and abide by the terms of use and privacy policies of such sites and content.

Some of the content and materials available through the Platform (e.g. Reviews) may be provided by third parties. No reference made on or through the Platform to any specific commercial product, process, or service (or provider of such product, process or service) other than such products, processes, or services of Yotpo, constitutes or implies an endorsement, recommendation or favoring by Yotpo.

Any opinions, advice, statements, content, services, offers or other information expressed or made available by such third part, are those of the respective third party author(s) or distributor(s) and do not necessarily state or reflect those of Yotpo and Yotpo does not endorse, promote, solicit or recommend them in any way. Yotpo makes no warranties or representations as to, and shall have no liability for, any third party content.

14. TERMINATION AND EXTENSION

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.

15. GENERAL

(i) These Terms shall be governed by and construed in accordance with the laws of the State of New York, USA without regard to the principles of conflict of law therein. The parties consent to the exclusive jurisdiction of the federal and state courts New York, New York, USA. The application of the United Nations Convention of Contracts for the International Sale of Goods or other international laws is expressly excluded; (ii) if any provision of these Terms 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 these Terms and shall not cause the invalidity or unenforceability of the remainder of these Terms; (iii) 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; (iv) the Terms constitute the entire agreement between you and Yotpo regarding the subject matter herein. Yotpo may unilaterally change or add to the terms of these Terms at any time in its sole discretion; (v) Yotpo may assign this Agreement, in whole or in part, in its sole discretion. You are not entitled to assign or otherwise transfer these Terms, or any of your rights or obligations hereunder, to any third party without the prior written consent of Yotpo. Any unauthorized assignment will be void and of no force or effect; (vi) except as expressly stated herein, nothing in these Terms shall be considered as granting any rights to third parties; (vii) the failure of Yotpo to enforce any rights granted hereunder or to take action against you in the event of any breach hereunder shall not be deemed a waiver by Yotpo as to subsequent enforcement of rights or subsequent actions in the event of future breaches; (viii) all waivers by Yotpo must be in writing. Any waiver or failure by Yotpo to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion; (ix) 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 SHOULD HAVE REASONABLY BEEN DISCOVERED. OTHERWISE, ANY SUCH CAUSE OF ACTION IS PERMANENTLY BARRED; (xi) WHERE PERMITTED BY LAW, YOU AGREE THAT YOU MAY ONLY BRING CLAIMS AGAINST YOTPO IN YOUR OWN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.

16. ARBITRATION

You agree that any controversy or claim arising out of or relating to these Terms, or the breach thereof, or the Platform or Service shall be settled by arbitration administered in New York, New York by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

 

Last updated at 5/14/2018

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