Terms of Service
Last updated: April 30, 2020.
SMSBump is now a part of the Yotpo family. We are updating our Terms of Service. These Terms of Service are effective immediately for new customers on or after April 30, 2020, and will become effective May 30, 2020 for customers with preexisting accounts. To view the previous terms, click here.
The Terms of Service (these “Terms” also referred to as this “Agreement”) govern your use of and access to the services and products sold via smsbump.com, the Shopify App store, BigCommerce App store, WordPress App Store, OpenCart App store, isenselabs.com or other platform provided by SMSBump Ltd., (together with its Affiliates (as defined below), “SMSBump”, “we”, “us” or “our”). 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, Affiliates include: Yotpo Ltd., Yotpo, Inc., and Yotpo UK Limited.
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 by the applicable platform. 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 SMSBump 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). You must be 18 years or older to use the Services.
BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE SERVICES.
1.1. “Customer Data” means the data created, input or submitted by you or your End Users in connection with your using the Services of SMSBump or facilitating your use of the Services.
1.2. “SMSBump Platform” means the software program supplied by SMSBump to you, including when obtained via smsbump.com, the Shopify App store, BigCommerce App store, WordPress App Store, OpenCart App store, isenselabs.com or another platform.
1.3. “Services” means the services presently being offered by SMSBump. These services include using SMSBump software to retrieve End User information from End User Communications, viewing data available from the End User Communications, and using SMSBump’s platform to send messages to End Users through SMS and MMS messages.
1.4. “Communications” means any type of communication that might be sent by you to any End User.
1.5. “End User” means an individual who interacts with you or your affiliates or agents through the Services.
1.6. “End User Communications” mean the End User emails, SMS and MMS messages, and information submitted through the Services.
1.7. “Subscription Fees” are the fees that you pay to use the Services.
1.8. “Laws” means any applicable laws, rules, and regulations, including, but not limited to, the Telephone Consumer Protection Act and those laws, rules, and regulations applicable to data privacy and use and consumer protection, 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. GENERAL TERMS FOR THE SMSBUMP PLATFORM AND THE SERVICES
2.1. Acceptable Use. You may not, and may not permit any third party to, use the SMSBump Platform or Services in violation of (a) any applicable Laws, rules, and regulations, including, but not limited to, the Telephone Consumer Protection Act and those Laws, rules, and regulations applicable to data privacy and use and consumer protection; (b) the CTIA Messaging Principles and Best Practices Guidelines; or (c) the CTIA Short Code Monitoring Handbook.
2.2. Marketing Programs. You shall be responsible for ensuring that all programs used in in connection with the SMSBump Platform or Services (including marketing, advertising or promotional campaigns, contests, drawing, or lotteries, etc.) (“Marketing Programs”), including the administration thereof, comply with all applicable Laws, rules, and regulations.
2.3. Enforceable Terms of Service. You shall be responsible for ensuring that all End Users who are engaged by you through the SMSBump Platform are required to agree to the your terms of service (the “End User Terms of Service”) and that you at all times have in effect enforceable End User Terms of Service related to the sending of SMS/MMS messages. In its guidance on smsbump.com and elsewhere, SMSBump may make available model clauses and terms provided by SMSBump as a starting point for your development of your own End User Terms of Service. These model clauses are provided as a courtesy and SMSBump makes no representation or warranty regarding any model language it provides. SMSBump is not providing legal advice and no attorney-client relationship is created by the use of the model language. You agree that you accept full legal responsibility for the End User Terms of Service and have been advised to obtain independent legal counsel before implementing the model End User Terms of Service or any variation thereof.
2.4. Required Clauses. Whether you utilize the model clauses or elect to draft your own End User Terms of Service, the End User Terms of Service must be provided to SMSBump upon SMSBump’s reasonable request. At all times, your End User Terms of Service shall contain at least the following provisions:
a) An express representation and warranty that the End User is supplying their own phone number, and not someone else’s, to you, and that the End User agrees to provide you with notice if that End User is no longer the primary user of that number;
b) A dispute resolution and/or jurisdiction provision expressly providing that End User waives the right to any class action litigation and/or jury trials and expressly providing that End User agrees to resolve all disputes via arbitration in which the arbitrator will apply the substantive law of the Federal Judicial Circuit in which the your principle place of business is located for any and all TCPA related claims;
c) An opt-out provision expressly providing that the End User agrees to opt-out of receiving any further messages on the SMSBump Platform via one or more explicitly designed methods, which, at a minimum, shall include the following: (i) any of the opt-out keywords that are universally recognized, including but not limited to STOP, UNSUBSCRIBE, CANCEL, END, or QUIT; and (ii) one or more alternative opt-out methods, including, but not limited to, via a web-based portal, telephone number, and/or email address established by you for the purpose of opting-out End Users. The opt-out provision must also expressly stipulate that any opt-out method not expressly provided in your opt-out provision is unreasonable;
d) A provision expressly providing that SMSBump is a third-party beneficiary of the arbitration, class action, and jury waiver provisions;
e) An age restriction provision expressly providing that the End User may not use or engage with the SMSBump Platform if the End User is under thirteen (13) years of age and that, if the End User is between the ages of thirteen (13) and eighteen (18) years of age, End User must have his or her parent’s or legal guardian’s permission to use or engage with the SMSBump Platform; and
f) A prohibited content provision expressly providing that the End User is prohibited from using the SMSBump Platform or the Services in connection with any of the following types of content:
i. Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
ii. Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
iii. Pirated computer programs, viruses, spyware, worms, Trojan horses, or other harmful code;
iv. Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
v. Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”).
2.5. Telephone Consumer Protection Act (“TCPA”). You are solely responsible and liable for ensuring that your use of the SMSBump Platform or the Services comply with the TCPA, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310, including, without limitation, ensuring that all phone numbers and other personal information used in connection with the SMSBump Platform or the Services have been collected in accordance with the TCPA, ensuring that sufficient notice and consent have been received and maintained by you in connection with your use of the SMSBump Platform or the Services under the Agreement, and for the preparation and distribution of all messages, content, and other materials delivered to your End Users and other recipients by and through the SMSBump Platform or the Services.
2.6. Controlling the Assault of Non-Solicited Pornography and Marketing Acts (“CAN-SPAM”). You are solely responsible and liable for ensuring that your use of the SMSBump Platform or the Services comply with the CAN-SPAM Act, 15 U.S.C. §§7701-7713.
2.7. Prohibited Content. You acknowledge and agree to not hold SMSBump liable for any prohibited content that you or your End Users send over the SMSBump Platform or via SMSBump’s Services, including, but not limited to any content that, in SMSBump’s discretion determines is or could be interpreted to be infringing, defamatory or otherwise objectionable, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promoting discrimination, bigotry or racism. In addition to, and without limitation to, the terms listed above, you acknowledge that SMSBump prohibits any use of the SMSBump Platform or the Services in connection with any of the following types of content:
a) Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
b) Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
c) Pirated computer programs, viruses, spyware, worms, Trojan horses, or other harmful code;
d) Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
e) Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”).
2.8. Age Restriction. In order to use the SMSBump Platform and/or the Services, you must be eighteen (18) years of age or older. You acknowledge and agree that you are not under the age of eighteen (18) years and you are of adult age in your jurisdiction and is permitted by that jurisdiction’s applicable law to use the SMSBump Platform and the Services. You also agree that you will not knowingly permit an End User under the age of eighteen (18) years to use the SMSBump Platform without parental consent.
2.9. Communications Equipment. You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and use the SMSBump Platform and the Services. Without limiting the foregoing, you must obtain and maintain, and pay all charges, taxes, and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by your to access and use the SMSBump Platform and the Services.
2.10. Passwords. You are responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Customer IDs, or other credentials and login information (collectively, “Passwords”) that have been provided to you or that are generated in connection with your use of the SMSBump Platform and the Services. You will not disclose or make available any Passwords other than to your authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords, the SMSBump Platform, or the Services. You are solely and fully responsible for all activities that occur in connection with your Passwords. Without limiting the foregoing, you are responsible for all charges and liabilities applicable to data and information transmitted to and stored under your account on the SMSBump Platform. In the event you believe the Passwords have been compromised, you are solely responsible for notifying SMSBump immediately by emailing such notice to email@example.com
2.11. Changes to Service. SMSBump has the right to change, modify, update, add to, discontinue, or retire any aspect or feature of the SMSBump Platform or the Services including, but not limited to, equipment needed for access or use, and the type and size of files that can be stored or transmitted. SMSBump may provide notice of material changes to the SMSBump Platform or the Services by posting them on the SMSBump Website. It is your responsibility to check the SMSBump Website periodically to be informed of any changes. You understand and agree that SMSBump may change the telephone number(s) and/or the credit card payment processing system. You agree that SMSBump will not be liable for damages (including consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort, or other grounds.
2.13. Refusal of Service. SMSBump reserves the right to refuse service to any person or entity for any reason which SMSBump, in its sole discretion, deems to be appropriate.
2.14. Reservation of Rights. SMSBump reserves the right to determine any violation of this Section 2 at its sole discretion.
3. ORDER FORM, SUBSCRIPTION TERM, SUBSCRIPTION FEES, AND PAYMENT
3.1. Order Form. Each Order Form is hereby incorporated into this Agreement by reference and is subject to the terms and conditions of this Agreement; provided, however, that in the event of conflict with the terms contained in any Order Form, the terms contained in this Agreement shall control. In the event of any conflict between the terms and conditions of this Agreement or an Order Form and any Customer-issued order form or purchase order, the terms and conditions of this Agreement and the applicable Order Form shall control.
3.2. Subscription Term.
a) You acknowledge and agree that you will be responsible for all Subscription Fees for the period specified on the applicable Order Form (“Subscription Term”) and acknowledge and agree to pay all Subscription Fees for the Subscription Term, regardless of your cancellation date.
b) All Subscriptions Fees for the SMSBump Platform and the Services will continue and renew automatically for so long as your subscription is in place and all applicable fees are timely paid or until you provide SMSBump with notice of your decision to cancel your subscription renewal, as described in Section 4.
c) Any unused credits issued by SMSBump to your account will expire 12 months after the date they were granted and cannot be rolled over into any subsequent term and can only be used toward per SMS fee charges.
3.3. Payment Processing. SMSBump will charge you the Subscription Fees and applicable taxes for the SMSBump Platform and Services rendered in advance of each billing period on or after the first day of such billing period. If you are paying by credit card or electronic check, (a) you hereby irrevocably authorize SMSBump to charge the credit card or other payment method provided (each a “Payment Method”) for any such amounts when due; (b) amounts due will be automatically charged in advance; and (c) if your credit card expires or is declined, you hereby give SMSBump permission to submit the credit card charge with a later expiration date and/or suspend your access to the SMSBump Platform and the Services until a new method of payment is provided. SMSBump reserves the right to have you complete a credit application to determine your creditworthiness as a condition of receiving further Services.
3.4. Recurring Billing. By starting your SMSBump subscription and providing or designating a Payment Method, you authorize SMSBump to charge you a subscription fee at the then-current rate, and any other charges you may incur in connection with your use of the SMSBump subscription service to your Payment Method. You acknowledge that the amount billed each period may vary for reasons that may include differing amounts due to promotional offers, promotional code redemption, and/or changing or adding a plan, and you authorize SMSBump to charge your Payment Method for such varying amounts.
3.5. Billing Disputes. In the event you would like to dispute any bill you received from SMSBump, you acknowledge and agree to provide SMSBump with written notice within fourteen (14) calendar days of delivery of the billing statement. If any issues or disputes are not received within this timeframe, you waive your right to said dispute. Any billing dispute is further governed by Section 13 (Dispute Resolution).
3.6. Late Payments. Late payments, including those resulting from credit card declines that you fail to resolve within five (5) business days of being informed of the decline, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.
3.7. Collection of Subscription Fees Owed. If SMSBump must initiate a collection process to recover Subscription Fees due and payable hereunder, SMSBump shall be entitled to recover from you all costs associated with such collection efforts, including, but not limited to, reasonable attorneys’ fees.
4.1. Cancellation by SMSBump. SMSBump may immediately cancel your Subscription Term without notification to you under the following circumstances:
a) your credit card expires, is canceled, or is otherwise terminated, and SMSBump is not immediately provided with another valid credit card or alternative form of payment by you;
b) you violate and/or fail to comply with any of the terms and conditions set forth in this Agreement.
4.2. Cancellation by SMSBump Without Cause. Upon SMSBump canceling your subscription to the SMSBump Platform and the Services without cause, you may be entitled to a pro-rata refund of any pre-paid and unused Subscription Fees advanced to SMSBump.
4.3. Cancellation by You. You may cancel your subscription at any time through the SMSBump Platform or by providing written notice to SMSBump at least five (5) business days prior to the expiration of the then-current Subscription Term. You will continue to have access to the SMSBump subscription service through the end of your billing period. SMSBUMP DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY CANCELLATIONS THAT OCCUR BEYOND THE INITIAL 30 DAYS.
5. Proprietary Rights.
5.1. Your Access. Subject to the terms and conditions of this Agreement, during the Subscription Term, you may access and use the SMSBump Platform solely for the purposes of accessing and using the Services. SMSBump reserves all rights not expressly granted and no such additional rights may be implied.
5.2. Ownership. You acknowledge that (a) all right, title, and interest in and to the SMSBump Platform and the Services, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and other proprietary and intellectual property rights embodied therein or associated therewith, are and shall remain with SMSBump or its third-party licensors; (b) no right or interest in the SMSBump Platform or the Services is conveyed other than the limited license granted hereunder; and (c) the SMSBump Platform and the Services are protected by copyright and other intellectual property laws.
5.3. Restrictions. Unless SMSBump grants you permission, you shall not, and shall not permit any third party to: (a) sell, transfer, lend, provide or otherwise make available, or disclose to third parties the SMSBump Platform, the Services, or any components thereof; (b) obscure, alter, or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained with the SMSBump Platform, the Services, or any documentation or SMSBump materials related thereto; (c) modify or alter, copy, publish, exchange, trade, broadcast, or create derivative works based on the SMSBump Platform or SMSBump’s Services; (d) “frame” or “mirror” any content forming part of the SMSBump Platform or SMSBump’s Services; (e) reverse engineer, decompile, disassemble, decode, or otherwise attempt to discover the source code of the SMSBump Platform; (f) bypass, delete, or disable any copy protection mechanisms or any security mechanisms on the SMSBump Platform; or (g) access the SMSBump Platform or SMSBump’s Services in order to (i) build a competitive product or service, (ii) translate the SMSBump Platform or otherwise attempt to learn the source code, structure, algorithms, or internal ideas underlying the SMSBump Platform, or (iii) copy any ideas, features, functions, or graphics of the SMSBump Platform or SMSBump’s Services. In addition to these restrictions, you shall take all reasonable precautions to prevent unauthorized or improper use of the SMSBump Platform or the Services.
6. License to you Marketing Content and Communications
6.1. Pursuant to your use of the SMSBump Platform and the Services, you grant SMSBump, its Affiliates and any third-party partner website(s) a non-exclusive, transferable, royalty-free license during and after the Subscription Term to use your trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and all other marketing or promotional content provided by you to SMSBump (“Customer Marketing Content”) in connection with the advertising, promotion, and sale of your products, services, or business, and to sublicense such Customer Marketing Content to third parties in connection with the provision of such Services. You further acknowledge and agree that SMSBump or its sublicensees may modify Customer Marketing Content in order to effectively provide the Services ordered in SMSBump’s reasonable discretion, provided that no modifications shall materially alter the terms of any Customer Marketing Content without your prior written consent.
6.2. You grant SMSBump a perpetual, non-exclusive, non-transferable, royalty-free, worldwide right and license to use Customer Marketing Content on the SMSBump Website and to identify you on the SMSBump Website as one of its customers. In addition, you grant to SMSBump the right to use Customer Marketing Content and any performance data related to your use of the SMSBump Platform and the Services in case studies, slide decks, and any other marketing materials. If you provide SMSBump with feedback or suggestions regarding the Services or other offerings, SMSBump may use the feedback or suggestions without restriction or obligation.
6.3. All Communications become the property of SMSBump and may be published (except personal information) by SMSBump in any manner that SMSBump deems to be appropriate, including via all forms of media and publication. you are solely responsible for the content of all Communications, including any violation of copyright, privacy, fraud or other applicable Laws and regulations. You acknowledge and agree to hold SMSBump harmless and to defend and indemnify SMSBump in accordance with Section 11 (Indemnification) from any civil actions filed or threatened to be filed by any third party or entity who alleges that your Communications support a legal cause of action.
7. Publicity. Either you or SMSBump may publicize the availability of the Services through press releases, media interviews, and other public statements, provided that any press release will be provided to the other party in writing and at least forty-eight (48) hours before publication for the other party’s approval, which shall not be unreasonably withheld. Either you or SMSBump may include the other party’s name and logo in marketing materials featuring or referencing the availability of the SMSBump Platform and/or the Services, provided that each party will comply with the other party’s trademark usage guidelines in doing so.
8. CUSTOMER AND END USER DATA
8.1. Customer Data. You warrant that you are the owner or legal custodian of, or otherwise has the right to provide to SMSBump, all programs, data, information and other content transmitted via the SMSBump Platform and hosted through the Services, including, without limitation, End User Data (as defined below) and the Customer Marketing Content (collectively, the “Customer Data”) and have the full authority to transmit and store the Customer Data through the SMSBump Platform and the Services. You hereby authorize the storage of Customer Data by SMSBump through the SMSBump Platform and the Services. You acknowledge that you bear sole responsibility for adequate security, protection, and backup of the Customer Data on your equipment. You understand that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions, and other causes, which might result in you restoring files that are no longer usable. Without limiting the generality of this Section 8, SMSBump will have no liability to you for any unauthorized access to, or use, alteration, corruption, deletion, destruction, or loss of any Customer Data on your equipment.
9.1. Mutual Warranties.
Each party represents and warrants that: (a) it has the legal power to enter into the Agreement; (b) the signatory hereto has the authority to bind the Customer; and (c) when executed, the Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with the terms listed hereto.
9.2. Customer Warranties.
10.1. EXCEPT AS SET FORTH IN SECTION 9.1 (Mutual Warranties), EACH APPLICATION, ACCESS THERETO, THE DOCUMENTATION, AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND SMSBump, ITS AFFILIATES AND ITS AGENTS: (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO ANY APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH ANY APPLICATION IS ACCURATE, COMPLETE, OR FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; AND (C) SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION IN, OR LOSS, INJURY, OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS, OR INTERRUPTIONS OF ANY APPLICATION, DOCUMENTATION, OR SERVICES. IF ANY WARRANTY DISCLAIMER IN THIS SECTION IS INVALID, ILLEGAL, OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY, ILLEGALITY, OR UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER WARRANTY DISCLAIMER OR PROVISION OF THIS SECTION OR INVALIDATE OR RENDER UNENFORCEABLE SUCH WARRANTY DISCLAIMER IN ANY OTHER JURISDICTION.
11.1. You shall indemnify, hold harmless, and defend SMSBump and any of its officers, directors, employees, or affiliates against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party, including all judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including expenses of litigation or arbitration, court or arbitration costs and attorneys' fees and other professional fees that SMSBump may incur as a result of such third-party claims, demands, or causes of action (collectively, “Losses”) that relate to or arise out of (a) your use of the SMSBump Platform or Services in alleged violation of this Agreement or applicable Law; (b) any of your acts or omissions related to this Agreement, or (c) any claim that Customer Data infringes or misappropriates the intellectual property rights of a third party.
11.2. Your indemnification obligations shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including but not limited to claims relating to the Telephone Consumer Protection Act, the Children’s Online Privacy Protection Act, or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of SMSBump or a defect in the SMSBump Platform or the Services.
11.3. Procedures. Your obligations in this Section are subject to receiving (a) prompt written notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of SMSBump, at your expense for reasonable out-of-pocket costs. You may not settle any claim without the SMSBump’s prior written consent if settlement would require the SMSBump to admit fault or take or refrain from taking any. SMSBump may participate in a claim with its own counsel at its own expense.
12. LIMITATION OF LIABILITY
12.1. Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SMSBump WILL NOT HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM YOUR USE OF THE SMSBump PLATFORM AND/OR SERVICES THAT SMSBump PROVIDES TO YOU, WHETHER THE CAUSE OF ACTION BE BASED ON TORT, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, PUNITIVE, ACTUAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR DUE TO ANY CAUSE OF ANY NATURE. BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE TO HOLD SMSBump HARMLESS FROM ANY LOSS OR HARM OF ANY NATURE DUE TO YOUR USAGE OF THE SMSBump PLATFORM AND/OR SERVICES THAT SMSBump PROVIDES TO YOU, WHETHER DIRECTLY OR INDIRECTLY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. Dispute Resolution
13.1. 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.
13.2. 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.
13.3. 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:
400 Layette Street, 4th Floor
New York, NY 10003
13.4. 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.
13.5. 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.
14.1. 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.
14.2. Assignment. You may not assign your rights or delegate any obligations pursuant to this Agreement without the express prior written consent of SMSBump. Any assignment by you without the prior written consent of SMSBump shall be null and void. SMSBump may assign its rights or obligations pursuant to this Agreement without providing notice to you and without your prior consent, provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s successors and assigns.
14.3. Independent Contractor Relationship. Neither you nor SMSBump shall be deemed to be an agent of the other and the relationship of you and SMSBump shall be that of independent contractors. Neither you nor SMSBump shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
14.4. Notices. Any notice or report required or permitted to be given or made under this Agreement by either party will be in English, in writing, and be deemed to have been fully given and received (a) when delivered personally; (b) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) one (1) business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (d) to the extent expressly permitted in this Agreement, one (1) business day after being sent via email. Notices will be sent to the parties at the addresses set forth in this Agreement or such other address as a party may specify in writing to the other. All notices to SMSBump must be made to the address listed below and all notices to you must be made to the mailing or email address of your primary contact with SMSBump. SMSBump Notice Address: ATTN: Yotpo Legal, 400 Lafayette Street, 4th Floor, New York, NY 10003, firstname.lastname@example.org. SMSBump may send notices or messages through the SMSBump Platform or by posting notices or messages on the SMSBump Website to inform you of changes to the SMSBump Platform and/or the Services or other matters of importance; SMSBump may also inform Customer of such broadcast by e-mail or by SMS/MMS/text message or by postal mail.
14.5. Support. For Customer support, please email email@example.com. In providing support, SMSBump or a SMSBump agent may use a variety of tools to aid in the process of resolving your issue and may request that you provide additional information in order to resolve these issues. You hereby grant SMSBump and such agent the right to use those tools and any information Customer provides to SMSBump in order to provide Customer with support.
14.6. Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
14.9. Severability. Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.
14.10. Survival. Section 4 (Order Form, Subscription Term, Subscription Fees, and Payment), Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 13 (Dispute Resolution), and Section 14 (General) shall survive the termination or expiration of this Agreement.
15. CUSTOMER SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
This section relates to your ability as a customer of SMSBump to opt-in to receiving SMS/MMS and text message communications from SMSBump
15.2. Customer Opt In. The Customer Program allows customers to receive SMS/MMS mobile messages by affirmatively opting into the Customer Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Customer Program, you agree that this Customer SMS Agreement applies to your participation in the Customer Program. By participating in the Customer Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from SMSBump. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
15.3. Customer Opt Out. If you do not wish to continue participating in the Customer Program or no longer agree to this Customer SMS Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from SMSBump in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
15.4. Duty to Notify and Indemnify. If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Customer Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying SMSBump of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by SMSBump or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Customer Programs.
15.5. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD SMSBUMP HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY SMSBUMP OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM SMSBUMP TTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
15.6. Cost and Frequency. Message and data rates may apply. The Customer Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with SMSBump.
15.7. Support Instructions. For support regarding the Program, text “HELP” to the number you received messages from or email us at support@SMSBump.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
15.8. MMS Disclosure. The Customer Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
15.9. SMSBump Disclaimer of Warranty. The Customer Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of SMSBump’s control.
15.10. Participant Requirements. You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
15.11. Age Restriction. You may not use of engage with the Platform if you are under eighteen (18) years of age. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s applicable Laws to use and/or engage with the Platform.
15.12. Prohibited Content. You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
a) Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity; Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
b) Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
c) Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
d) Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
e) Any other content that is prohibited by applicable Laws in the jurisdiction from which the message is sent.
15.13. Message Deliverability. Carriers (e.g. AT&T, Verizon, T-Mobile, Sprint, etc.) are not responsible or liable for undelivered or delayed messages.
Last Modified: Apr 30, 2020