The Terms of Service (these “Terms”) herein are part of an order form (“Order Form”) for marketing technology and related services (the “Services”) between Yotpo, Inc. (together with its Affiliates (as defined below), “Yotpo”) and the client signing the Order Form, and for whom the Services will be provided (the “Client”), and shall be deemed a part of such Order Form as though set forth in full therein (the Order Form and these Terms, collectively referred to as this “Agreement”). By using any of the Services, Client agrees to be bound by these Terms, the Yotpo Privacy Policy and the Yotpo Data Processing Agreement, which provide further details about Yotpo’s compliance with global data protection regulations, including without limitation, the General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act of 2018 (the “CCPA”). 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 Client with access to Yotpo’s proprietary platform (the “Platform”) of tools, content, and other software that enable the Client to, without limitation, collect, organize and use content created or otherwise supplied by the Client’s customers or certain other third parties (“End-Users”) on the Client’s website, social media services, and third-party websites (such content collectively referred to as “User Generated Content” or “UGC”).
The Platform allows the Client 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 or on behalf of the Client or its 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 (if Yotpo Curation is included in Client’s services) and/or any works of authorship created by the End-User, the Client 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”).
2.1 OWNERSHIP OF SUBMITTED UGC. As between Client and Yotpo, all the Intellectual Property Rights (as defined below) in and to the Submitted UGC are Client’s property and Client 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, 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 Intellectual 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.
3.1 RIGHT TO ACCESS AND USE PLATFORM. 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, Yotpo hereby grants to Client, and Client accepts, a personal, nonexclusive, non-transferable, non-sublicensable, limited right to access and make use of the Platform, in each case in the manner specified in the Yotpo Order Form and in accordance with this Agreement.
3.2 LICENSE TO SUBMITTED UGC. Nothing contained herein shall be construed as Yotpo limiting Client’s 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 Client’s ownership and use of the Submitted UGC, by submitting, transmitting and/or allowing End Users to submit or transmit any Submitted UGC through the Platform, Client represents that Client has all rights necessary to license or sublicense such Submitted UGC to Yotpo for any Permitted Use (as defined below). Yotpo may 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 (i) to the extent necessary to provide Client with access to and use of the Platform and any Services in accordance with the terms of this Agreement or (ii) for any other lawful purpose, including without limitation, in connection with the preparation by Yotpo of benchmarking reports, provided that any such Submitted UGC has been aggregated and de-identified prior to any such use (any such use described in (i) or (ii), collectively referred to herein a “Permitted Use”). Such license will apply to any form, media, or technology now known or hereafter developed. This section does not affect any rights Client may have under applicable data protection laws.
Client’s use of the Platform 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 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 Client 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. Client is solely responsible for obtaining, paying for, repairing and maintaining all the equipment, software, hardware and services required for Client to access to the Platform.
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 Submitted UGC in order to provide the Services. Therefore:
Client represents and warrants to Yotpo that it has obtained, and agrees that it will maintain throughout the term of this Agreement: (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 Permitted Use, (b) End-Users consent to receive post-sale emails sent by Client (via Yotpo as a mere conduit) containing reminders to submit Reviews and containing recommendations and/or links to third party goods and/or services in accordance with 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 Client’s transfer to and use by Yotpo of Client’s 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”).
In addition, Client shall ensure that each of Client’s 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 Intellectual Property Rights in a manner that is no less protective of Yotpo’s Intellectual Property Rights as these Terms, including but not limited to those terms set forth in Sections 2, 4 and 9 hereto.
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 Yotpo Order Form.
Client hereby acknowledges and confirms that it is solely responsible for the content of any and all messages sent to its End-Users by and/or through the Platform (“Client Messages”). Without limiting any of the terms and conditions contained herein, and any other obligations Client may have under the CAN-SPAM Act and/or any applicable law, Client shall uphold the following standards as a minimum in respect of any and all Client Messages: (i) include a conspicuous identifier and a valid physical address; (ii) include a valid return address and any additional contact information Client 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.
Client hereby acknowledges and agrees that Yotpo merely plays a technical role in transmitting or routing Client Messages as a conduit, and that Client shall have sole responsibility and liability for any Client Messages.
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 which Yotpo reasonably believes to be inaccurate, inappropriate or otherwise not in compliance with these Terms or applicable law. NOTHING IN THESE TERMS OBLIGATES YOTPO TO DISPLAY ANY SUBMITTED UGC THAT YOTPO REASONABLY BELIEVES TO BE INACCURATE, INAPPROPRIATE OR OTHERWISE NOT IN COMPLIANCE WITH THESE TERMS OR TO USE SUCH SUBMITTED UGC 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 Submitted UGC, in each case, to the extent required by applicable law.
Client represents and warrants to Yotpo that: (a) 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 Submitted UGC; (b) has all necessary rights, permits and licenses under all applicable 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; (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) Client shall comply with all applicable laws, including without limitation, CAN-SPAM and the Digital Millennium Copyright Act.
Yotpo is firmly committed to protecting the privacy of Client’s data and the data of Client’s End Users. By using the Services, Client acknowledges and agrees that Client has read and understood Yotpo’s Privacy Policy (available at www.yotpo.com/privacy-policy/), which governs how Yotpo collects, uses and shares Client’s or Client’s End Users’ data. Client also acknowledges and agrees to comply with all applicable security, privacy and data protection laws and regulations when using the Services.
If: (a) Client is established in the European Economic Area (EEA); (b) Client collects Reviews and/or personal information from customers in the EEA or the State of California; or (c) Client is otherwise subject to the requirements of the GDPR and/or the CCPA, Yotpo’s collection and use of personal information of any European and/or California residents is also subject to Yotpo’s Data Processing Agreement (available at www.yotpo.com/data-processing-agreement/). Nothing in these Terms affects any rights Client may have under applicable data protection laws.
Client agrees that Yotpo may protect and improve the Services through analysis of Client’s use of the Services, Client’s End Users’ use of the Services, and/or Client’s and Client’s End Users’ personal information in anonymized, pseudonymized, de-personalized and/or aggregated form. If applicable law requires, Client agrees to explain this to Client’s End Users in Client’s privacy policy.
Client represents and warrants that, when using the Services, Client is solely responsible for complying with all applicable data protection, security and privacy laws and regulations (including, where applicable, the GDPR, the EU e-Privacy Directive/Regulation and/or the CCPA), including without limitation any notice and consent requirements. This includes without limitation the collection and processing by Client of any personal data, when Client uses the Services to send marketing and other electronic communications to individuals and when using cookies and similar technologies on Client’s website (including, in particular, those which Yotpo places for Client at Client’s request as part of the Services, such as to undertake analytics for Client). If applicable law requires, Client must provide and make available to Client’s End Users a legally compliant privacy policy. If applicable law requires, Client must provide and make available to Client’s End Users a legally compliant cookie policy. Client must capture valid consent, both for Client and Yotpo, for any cookies or similar technologies used on or through Client’s website (including those Yotpo drops on Client’s request or with Client’s permission) where required, including, where applicable, by the EU e-Privacy Directive/Regulation and under national laws implementing the same. Please see Yotpo’s Privacy Policy for more information about how Yotpo uses cookies and similar technologies.
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. 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.
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.
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 CLIENT SHALL BE LIMITED TO THE LESSER OF $5,000.00 AND THE AMOUNT OF THE FEES ACTUALLY RECEIVED BY YOTPO FROM CLIENT DURING THE SIX (6) MONTH PERIOD THAT PRECEDED THE EVENT THAT GAVE RISE TO SUCH LIABILITY.
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.
YOTPO AND CLIENT 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 THE PARTIES TO ENTER INTO THIS AGREEMENT.
Client agrees 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) Client’s breach of its representations and warranties contained herein (ii) Client’s or any End User’s use of the Platform or the Review Tool in violation of this Agreement, (iii) Client’s failure to obtain all End User Consents and Permissions (iv) Client Messages; (v) the Submitted UGC, (vi) Client’s products and/or services; and/or (vii) Client’s gross negligence, fraud, bad faith, or willful misconduct, regardless of any negligence on the part of Yotpo.
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 Client’s 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 Client leave the Platform via a link contained therein and/or view content that is not provided by Yotpo, Client does so at its own risk and Yotpo shall not be responsible or liable for damages or losses caused in connection therewith. In as much as Client is redirected to linked sites and content, Yotpo recommends Client 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 party, 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.
The initial term of this Agreement shall be set forth in the Order Form commencing on the date hereof. THEREAFTER, THE TERM OF THIS AGREEMENT SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) YEAR TERMS (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-EXISTING 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-EXISTING TERM TO INCREASE THE PRICING IN EFFECT DURING THE IMMEDIATELY PRECEDING ONE-YEAR PERIOD. Either party may terminate this Agreement immediately upon written notice in the event that the other party violates any material term of this Agreement and fails to cure such violation within thirty (30) days of receiving written notice of such violation. Upon notice of such termination by Yotpo, Client shall immediately cease using the Platform and promptly pay Yotpo any and all applicable fees and payments due up to and including the date of termination. The following Sections shall survive termination or expiration of the Terms: 2, 3.2, 6, 8, 10-15.
(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) 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; (iv) this Agreement constitutes the entire agreement between Client and Yotpo regarding the subject matter herein and this Agreement shall not be modified except by a written instrument executed by both parties. In the event of a material change in regulation or legislation, Yotpo may unilaterally change or add to the terms of these Terms at any time solely to the extent necessitated by such material change in regulation or legislation. In the event of such change, Yotpo shall notify Client via email. If Yotpo unilaterally changes a material provision of these Terms in a manner that has or is reasonably likely to have a negative effect on Client’s business or use of the Services or Platform, Client will be entitled to decide to stop using the Services and Platform and terminate these Terms by written notice to Yotpo within fourteen (14) days of Yotpo’s written notice of such change(s), and, in the event that Client does so, then, upon Yotpo’s receipt of such notice of termination, Client’s right to access and use the Platform shall be automatically terminated with immediate effect and Yotpo will provide Client a pro-rated refund of the Fees paid in advance for the post termination term; (v) 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; (vi) except as expressly stated herein, nothing in this Agreement shall be considered as granting any rights to third parties; (vii) 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; (viii) 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; (ix) 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 AROSE. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
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