Yoppify Terms of Service

Last Updated: February 12, 2022

Yoppify, LLC (“Yoppify,” “we,” “our,” or “us”) is providing Customer (“Customer,” “you,” or “your”) with access to its software applications, messaging services, and websites, (collectively, the “Service”), subject to these Terms and Conditions (“Terms”). These Terms are incorporated by reference into and made a part of the User Agreement (“User Agreement”) entered into by the parties.

Modification of Terms

Yoppify reserves the right, at its sole discretion, to change, supplement or remove all or part of these Terms at any time. Updates shall be effective immediately upon being posted on the Terms and Conditions webpage at https://yoppify.com/terms. You agree to review these Terms periodically for changes. When we change the Terms in a material manner, we will update the “Last Updated” date on the top of the webpage. Your continued use of the Service following any revision to these Terms will mean you accept all of the updated terms and conditions.

Services and Features

Subject to these Terms, we agree to provide the Service. The Service consists of software features that enable you to engage in various business activities, which may include contact management, mapping features, online chat, text messaging, phone calls, emails, postcards, and digital forms. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of updates, bug fixes, modifications or improvements to the Service, shall be subject to the Terms.

Support

Yoppify provides support services via email, chat, and telephone, as further described on the Yoppify Support webpage at https://yoppify.com/support. Any support services are subject to these Terms. Yoppify’s ability to deliver the Service will depend on your reasonable and timely cooperation and the accuracy and completeness of any information from you needed to deliver the Service, and you agree to cooperate with us in supporting your use of the Service.

Security

Yoppify will implement and maintain reasonable security and technical measures, as determined by Yoppify, designed to protect information in the System from unauthorized access, use, modification, deletion, loss or disclosure. However, you understand and agree that such steps do not guarantee that the Service is free of errors, viruses, or other harmful components. You also understand and agree that we are not responsible for the security of electronically transmitted data while in transit to and from the Service. You agree to use caution and assume full responsibility and risk of loss when downloading and/or using files, information, content, or other material obtained from the Service.

Customer is also responsible for protecting the confidentiality of its usernames and passwords used to access the Service (“User Accounts”), and you are fully responsible for all activities that occur under your User Accounts. Customer shall promptly notify Yoppify when a new User Account needs to be created or when an existing User Account must be deactivated, as well as when the access credentials for a User Account may have been lost, stolen, or otherwise compromised.

Consent to Send Messages

Customer understands and agrees that the Service is intended to allow Customer to send communications only to its own contacts, customers, or end users (“Contacts”) who have provided contact information to the Customer and consented to the receipt of such communications in accordance with applicable laws and regulations. Customer also understands and agrees that the Service is intended to be used to send transactional and/or informational messages, not advertisements, marketing, telemarketing, or promotional communications, and that Service capabilities were not developed to facilitate compliance with laws and regulations applicable to advertising, marketing, telemarketing, or promotional communications. You are solely responsible for the accuracy of the contact information and the communication preferences of your Contacts in the Service. If Contacts do not wish to receive communications, you agree to set those preferences in the Service or remove the contact information completely from the Service.

Third Party Services

Certain features of the Service have been, and will continue to be, provided to Customer by third parties (“Third Party Services”) designated by Yoppify. If (a) such third party increases the cost to provide such services, or (b) such third party is unable or unwilling to provide such services, or (c) Yoppify elects to engage a different third party to provide such services, Yoppify shall use its commercially reasonable efforts to determine the manner in which such Third Party Services can best be provided, and, if there is any material change to the Service as a result, including the level or cost thereof, Yoppify shall notify the Customer in writing and negotiate with the Customer in good faith to amend the Order Form as appropriate. We will not be responsible, and will be held harmless by you, for the failure of any Third Party Services that are used as part of the Service.

Disclosure

Yoppify will not sell, rent, or otherwise transfer to a third party for monetary compensation any Personal Information (defined below) provided by you in connection with your use of the Service. You acknowledge and agree that Yoppify may disclose Personal Information (defined below) and other information regarding your use of the Service (i) to our employees, contractors, agents, professional advisors (attorneys, accountants, etc.), and providers of Third Party Services as reasonably needed to fulfill our obligations under the User Agreement and/or to facilitate provision of the Service, (ii) to third parties in response to subpoenas, civil investigative demands, court orders, law enforcement requests, and other legal process, (iii) to third parties to fulfill our legal or contractual obligations or as we determine is necessary to protect our legal rights or the legal rights of others, or (iv) to the surviving entity in the event of a merger, acquisition, or sale of all or substantially all of our assets.  Yoppify does not accept any responsibility for accidental or inadvertent disclosure, unauthorized access, or other disclosure as required by law or described in these Terms. For purposes of these Terms, “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or household.

Compliance with Laws

You are solely responsible for, and agree to use the Service, in accordance with all applicable federal, state, municipal, or local laws and regulations and industry standards, as amended from time to time, including, but not limited to, the Telephone Consumer Protection Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act, the California Consumer Privacy Act, and all other applicable laws and regulations and industry standards concerning privacy, telecommunications, telemarketing, and the sending of email, text, phone calls, and postcards. You covenant and warrant that you shall ensure that all communications that you make using the Service will comply with all such laws.

Restrictions and Responsibilities

When using the Service, you agree not to do any of the following, or permit any of your end users, employees, contractors, agents, representatives or any third party to:

• Convey any information that may be considered unlawful, harassing, libelous, abusive, threatening, pornographic, obscene, hateful, offensive, harmful, vulgar, distasteful, defamatory, indecent, objectionable, or invasive of another person’s privacy or proprietary rights.
• Send spam or unsolicited calls or messages if such unsolicited activities could reasonably be expected to or do in fact provoke complaints.
• Upload or transmit any material that was not created by you, provided for you to use, or that would violate anyone’s rights, including text, photos, graphics, and other content.
• Use any misleading or incorrect names, addresses, email addresses, telephone numbers, subject lines, or other information in the Service or in any communications created, managed, or sent using the Service.
• Upload or transmit any material that contains a virus, malware, ransomware, or any other contaminant.
• Directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service, documentation or data related to the Service; modify, translate, or create derivative works based on the Service; or remove any proprietary branding, notices, or labels.
• Rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Service to any third party; provide time sharing or similar services for any third party; or use the Service for any purpose other than your own internal business use.
• Access the Service if you are a direct competitor of Yoppify or for any competitive purposes, except with Yoppify’s prior written consent.

Suspension of Service

You agree that Yoppify may suspend all or any part of the Service immediately without notice if Yoppify reasonably believes you are, or any activities conducted through the Service are: (a) in violation of these Terms; (b) your usage patterns or volumes are materially outside your regular usage patterns; and/or (c) you are not up to date on all amounts owed to Yoppify. If you have reason to believe that any of the restricted activities described in the “Restrictions and Responsibilities” section have occurred, you agree to immediately notify Yoppify. You may be liable for the losses incurred by Yoppify or others due to any unauthorized use of the Service.

Confidential Information

“Confidential Information” means information, including trade secrets, know-how, proprietary information, formulae, processes, techniques and information concerning past, present and future marketing, financial, research, and development activities, that may be disclosed, whether orally, electronically, or in writing, from or on behalf of a party, or that may be otherwise received or accessed by a party in connection with the User Agreement, whether transmitted prior to or after the Effective Date, and including all copies thereof. By way of example and not limitation, Confidential Information includes copyrights, trademarks, service marks, and other intellectual property rights of a party, customer and potential customer data, pricing policies, service information, market analyses, market projections, sales methods, product development plans, internal controls, Service pricing, and security procedures. Confidential Information will not include information: (i) previously known to the receiving party without an obligation of confidentiality; (ii) independently developed by or for the receiving party or the receiving party’s employees, consultants, or agents without reference to or use of Confidential Information; (iii) lawfully acquired by the receiving party from a third party who is not under an obligation of confidentiality with respect to such information; or (iv) which is or becomes publicly available through no fault of the receiving party or not as a result of a breach of the User Agreement.

The receiving party will hold the Confidential Information in confidence and will take reasonable care, but in no instance less than the degree of care it uses to protect and maintain its own information that it considers to be confidential, to assure that Confidential Information will not be disclosed to others, in whole or in part, except as otherwise provided herein. The disclosing party retains all ownership rights in and to its Confidential Information (regardless of the form in which it is disclosed) and all intellectual property rights associated with such Confidential Information. The receiving party will not use, disclose, duplicate, or distribute any Confidential Information except as necessary to perform its obligations under the User Agreement. Further, with respect to any such necessary disclosure or distribution, the receiving party will limit such disclosure or distribution to those of its employees, officers, agents, and contractors who have a need to know the Confidential Information for purposes of the receiving party’s performance of its obligations, and the receiving party will limit such disclosure or distribution so as to only disclose or distribute those applicable portions of the Confidential Information that such employee, officer, agent, or contractor needs to know. To the extent that the receiving party determines that it needs to disclose or distribute any Confidential Information to a third party (i.e., someone other than an employee, officer, agent, or contractor) to perform its obligations under the User Agreement, the receiving party will obtain from said third party their prior written agreement to comply with confidentiality obligations at least as restrictive as the terms of this section.

Upon termination of the User Agreement, the receiving party will, unless otherwise provided herein, (i) return all Confidential Information to the disclosing party or, if requested by the disclosing party or return of Confidential Information is impracticable, (ii) destroy all Confidential Information and certify to such destruction. Notwithstanding the foregoing, the receiving party may retain such Confidential Information (i) that it is required by law to retain or that it reasonably determines, on advice of counsel, is necessary for itself to retain to defend itself in a potential regulatory action or litigation or (ii) that is stored in an archive or backup system so long as such Confidential Information is not restored from such archive or backup system into an active system; however, the receiving party’s obligations under the User Agreement related to Confidential Information will continue for so long as the receiving party retains such Confidential Information.

If the receiving party is compelled by law to disclose Confidential Information, it will provide the disclosing party with at least three (3) business days’ prior written notice of such disclosure (to the extent legally permitted) and any reasonable assistance the disclosing party requests to contest or limit the disclosure. Notwithstanding the foregoing, Yoppify may disclose Confidential Information in response to subpoenas, civil investigative demands, court orders, law enforcement requests, or other legal process without providing notice to Customer. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information in contravention of the User Agreement, the disclosing party will have the right, in addition to any other remedies available to it under the User Agreement, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that other available legal remedies are inadequate.

Payment of Fees

Customer will pay Yoppify the applicable fees as described in the User Agreement for the then-current term (“Current Term”). If Customer’s use of the Service exceeds the levels set in the Current Term or otherwise requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Further, all fees are exclusive of taxes and government-imposed fees, and Customer is solely responsible for such taxes and government-imposed fees. Yoppify reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the Current Term, upon thirty (30) days prior notice to Customer. If Customer believes that Yoppify has billed Customer incorrectly, Customer must contact Yoppify no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Yoppify’s customer support department.

Yoppify may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Yoppify thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Service.

Term and Termination

Subject to earlier termination as provided below, upon completion of the duration specified in the Order Form, the Service shall be automatically renewed for an additional year at the end of the Current Term, unless either party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the Current Term.

In addition to any other remedies it may have, (i) either party may terminate the User Agreement upon thirty (30) days’ prior written notice (or without notice in the case of nonpayment), if the other party materially breaches any of the Terms, (ii) Yoppify may terminate the User Agreement upon sixty (60) days’ prior written notice for any reason or no reason, or (iii) Yoppify may terminate the User Agreement immediately with or without notice to Customer in the event Customer uses the Service or Yoppify reasonably believes the Customer has or will use the Service in violation of applicable laws and regulations or in violation of the Restrictions and Responsibilities section of these Terms. Customer will pay in full for the Service up to and including the last day on which the Service was provided.

Warranty and Disclaimer

Yoppify shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Yoppify or by Third Party Services, or because of other causes beyond Yoppify’s reasonable control, but Yoppify shall use reasonable efforts to provide advance notice to the Customer of any scheduled service disruption. However, Yoppify does not warrant that the Service will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Service. You understand and agree that the Service is provided “AS-IS” and that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, YOPPIFY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, YOPPIFY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT, TECHNOLOGY SUPPLIERS, AND THIRD PARTY SERVICES), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO THE SERVICE OR UNDER THE USER AGREEMENT FOR (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B)  ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (C)  ANY MATTER BEYOND YOPPIFY’S REASONABLE CONTROL; OR (D) ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO YOPPIFY FOR THE SERVICES UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT YOPPIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification

Customer will indemnify, defend (at Yoppify’s option), and hold Yoppify and its affiliates, subsidiaries, successors, assignees, owners, directors, officers, employees, contactors, representatives, and agents harmless from and against any and all claims, governmental investigations, demands, actions, and proceedings, real or threatened (collectively, “Claims”), and all losses, judgments, awards, settlements, damages, fines, injuries, penalties, and costs including, without limitation, reasonable attorneys’ fees and costs) arising out of or related to (i) Customer’s use of the Service, (ii) Customer’s actual or alleged violation of any applicable laws or regulations, or (iii) Customer’s gross negligence or willful misconduct. If Yoppify permits Customer to control the defense of a Claim, (i) Customer will use counsel reasonably acceptable to Yoppify, (ii) Customer will not settle or otherwise dispose of such Claim in any manner that would adversely affect the rights or interests of Yoppify without Yoppify’s prior written consent, and (iii) Yoppify may participate in the defense using counsel of its own choosing and at its own cost.

Governing Law

The User Agreement shall be governed by the laws of the State of Utah without regard to its conflict of laws provisions. The venue for all disputes arising in connection with the User Agreement will be the state and federal courts of Salt Lake County, Utah, and the parties consent to the jurisdiction thereof. THE PARTIES WAIVE THE RIGHT TO A JURY TRIAL IN ANY ACTION RELATED TO THE USER AGREEMENT, THE SERVICE, OR THE RELATIONSHIP BETWEEN THE PARTIES.

Force Majeure

Any party will be excused from delays in delivery or performance hereunder (excepting payment of fees) if such delay is attributable to causes beyond the party’s reasonable control such as acts of God, acts of government, flood, fire, earthquake, pandemic/epidemic, civil unrest, terrorism, strikes, or utility failures. In the event of any such delay, the time of delivery or performance will be extended for a period of time equal to the time lost by reason of such delay (unless otherwise specified in writing between the parties) provided that such party continues to use its best efforts to recommence performance as soon as possible and to whatever extent possible without delay.

Feedback

Yoppify owns all right, title, and interest in and to any comments, feedback, or other suggestions provided by Customer relating to the Service (“Feedback”). Customer hereby agrees to assign all right, title, and interest it has in and to any Feedback to Yoppify to ensure Yoppify’s ownership therein.

Miscellaneous

If any provision of the User Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the remaining provisions will otherwise remain in full force and effect and enforceable. Provisions of the User Agreement that by their nature would survive termination of the User Agreement, including, without limitation, confidential information and indemnification obligations, will be deemed to survive termination of the User Agreement. The User Agreement is the result of careful negotiations between sophisticated parties and thus any principle of construction or rule of law that provides that an agreement will be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement will not apply to the terms and conditions of the User Agreement. The User Agreement is not assignable, transferable or sublicensable by Customer except with Yoppify’s prior written consent. Yoppify may transfer and assign any of its rights and obligations under the User Agreement without consent. The User Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the User Agreement. All waivers of a party’s obligations under the User Agreement must be in a writing signed by both parties, except as otherwise provided herein. Except with regard to Yoppify’s revision of the Terms and Conditions from time to time, no other amendment or modification of the User Agreement may be made without the parties’ mutual written consent. The parties are acting as independent contractors and no agency, partnership, joint venture, or employment is created as a result of the User Agreement and Customer does not have any authority of any kind to bind Yoppify in any respect whatsoever. In any action or proceeding to enforce rights under the User Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the User Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by mail or courier service (e.g., UPS, FedEx, DHL); or when receipt is electronically confirmed, if transmitted by facsimile or email. Notices will be sent to the address or email address of each party indicated on the Order Form, or such other address or email address as a party designates by written notice to the other party at least five (5) business days before such new address or email address is effective. Section headings in the User Agreement are for reference and convenience only and do not explain, modify, interpret, or expand provisions of the User Agreement. All dollar values in the Order Form are expressed in United States Dollars.