Partner Program Agreement

Last Modified: March ,2023

YOTPO PARTNER PROGRAM AGREEMENT

PLEASE READ THIS PARTNER PROGRAM AGREEMENT, THE YOTPO PARTNER PROGRAM CONTRACT, AND THE YOTPO PARTNER PROGRAM GUIDE (AS SET FORTH BELOW) (TOGETHER, THIS “AGREEMENT”) CAREFULLY. This Agreement governs your participation in the Partner Program (as defined below) and is an agreement between Yotpo Ltd., a company incorporated under the laws of Israel, with its principal address at 35 HaMasger St, Tel Aviv, Israel (“Yotpo”) and you or the entity you represent (“you”, “You”, “Partner”). This Agreement takes effect when you are accepted into the Partner Program via email confirmation from Yotpo (the “Effective Date”). Yotpo and Partner are sometimes referred to individually as a “Party” and collectively as the “Parties.”

BY APPLYING TO JOIN THE YOTPO PARTNER PROGRAM AND/OR PARTICIPATING IN THE PARTNER PROGRAM, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THIS AGREEMENT, AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU REPRESENT, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT OR UNDERSTAND THIS AGREEMENT, YOU MAY NOT REGISTER FOR OR PARTICIPATE IN THE PARTNER PROGRAM.

1. Definitions.
   1. “Actively Participate” means Partner’s active engagement in the introduction, ongoing sales development or closing of a Lead in the sales process, as determined by Yopto in its good faith discretion.
   2. “Commissionable Lead” means a Lead Yotpo accepts pursuant to Section 3 below.
   3. “Customer” means a Yotpo customer that is subscribing or has subscribed to Yotpo Products. 
   4. “Cross Sales” means instances where the Partner sells additional Yotpo Products to a Customer. For example, if the Customer has an existing Order Form with Yotpo for Yotpo’s UGC product, and the Partner assists in selling that same Customer Yotpo’s Loyalty and Rewards product, then, if the Lead were a Commissionable Lead, Partner would be paid the applicable Referral Fee for the Customer’s purchase of the Loyalty and Rewards product.
   5. “Referral Fees” are the fees payable to Partner as set forth in the Partner Program Guide, or as otherwise communicated via the Partner Portal or email by Yotpo. 
   6. “Leads” means (i) a potential or prospective Customer identified by Partner, or (ii) a potential opportunity to Cross Sell different Yotpo Products to an existing Customer, as applicable.
   7. “Net Revenue” means the software licensing fees and usage-based fees for Yotpo’s Products received by Yotpo for eligible Yotpo Products set forth in the Order Form(s) associated with a successfully closed Commissionable Lead, (i) net of any discounts, taxes payable and subsequent refunds, (ii) not including fees for support, implementation, customization, training, consulting or other professional services, or third-party products or services, and (iii) not including one-time or shortcode fees charged by Yotpo for the sending of SMS through Yotpo’s SMS product.
   8. “Order Form” means the ordering document (including a web-based form) entered into between Yotpo and a Commissionable Lead for the Commissionable Lead’s subscription to Yotpo Product(s) that sets forth the fees owed to Yotpo and the term of the subscription.
   9. “Partner Portal” means Yotpo’s web-based application where Partner may access and obtain Yotpo Materials and other marketing resources for the Yotpo Products, submit new Leads, review Leads’ status, and receive other technical details and support related to the Yotpo Products and participation in the Partner Program.
   10. “Partner Incentives” means certain product and time-based promotional discounts, spiffs, bounties, etc. offered by Yotpo for Partner, as set forth in the Partner Portal or via written communication from Yotpo.
   11. “Partner Program” means Yotpo’s partner program, as described in this Agreement.
   12. “Partner Program Guide” means the Partner Program document available at https://www.yotpo.com/program-guide-yotpo-service-partners/ and sets forth the operational details and business policies of the Partner Program, which may be amended over time by Yotpo. The “Partner Tiers and Benefits” and “Partner Requirements” sections are hereby expressly integrated into this Agreement. The remaining sections of the Partner Program Guide are for information only.
   13. “Referred Customer” means a Commissionable Lead with whom Yotpo enters into an Order Form (excluding trial agreements/Order Forms) to provide the Yotpo Products within twelve (12) months from the date of Yotpo’s acceptance of such Lead as a Commissionable Lead from Partner, unless such time period is extended by Yotpo in writing.
   14. “Referral Services” means collectively, the referral services performed by Partner pursuant to this Agreement.
   15. “Term” is the period during which this Agreement shall be effective.
   16. “Yotpo Materials” means any collateral materials describing Yotpo Products provided to Partner by Yotpo for use in connection with this Agreement.
   17. “Yotpo Partner Program Contract” means any ordering document between Yotpo and Partner setting forth additional terms (such as Referral Fees) to this Agreement.
   18. “Yotpo Products” means Yotpo’s software platform, products and services as further described on Yotpo’s website www.yotpo.com. Yotpo’s products and services include hosted “software as a service”, application programming interfaces, or other products provided by Yotpo for use by a Yotpo Customer, as listed in one or more Order Forms. “Yotpo Products” do not include any products explicitly excluded in the Partner Program Guide.
2. Partner Program Acceptance.
   1. You must complete and submit a Partner Program application or other documents as required by Yotpo to become a Partner. Yotpo will review your application and notify you whether you have been accepted to participate in the Partner Program via email.
   2. Upon acceptance, you agree to create an account through the Partner Portal (“Account”), and complete any Enrollment Criteria set forth in Section 6.4 in registering an Account.
   3. Partner instructs Yotpo to use account registration information and other personal identifiable information collected by Yotpo in connection with Partner’s registration in the Partner Program as described in Yotpo’s Privacy Policy, as updated from time to time (currently available https://www.yotpo.com/privacy-policy/).
3. Lead Process.
   1. Identification of Leads; Marketing and Promotion. During the term of this Agreement, Partner shall use commercially reasonable efforts to identify Leads and market and promote Yotpo Products to Leads. In the course of performing its obligations under this Section 3.1, Partner may provide Leads with the Yotpo Materials as supplied to Partner by Yotpo.
   2. To be eligible for acceptance by Yotpo, all Leads must meet the following criteria: (a) at the time of introduction to Yotpo, such Lead is not already an existing Customer of Yotpo, or, for Cross Sales purposes, is not already involved in discussions with Yotpo relating to the sale of additional Yotpo Products; and (b) except for Cross Sales purposes, has not previously been submitted to Yotpo, by another Partner or any other third party, or which has been generated by Yotpo itself.
   3. Lead Registration. Partner must register the Lead in the Partner Portal, if available or via email to the Yotpo partner team (“Lead Registration”). Yotpo will review such Lead and notify Partner through the Partner Portal or via email whether Yotpo accepts such Lead. Yotpo may accept or reject such Leads at its sole good faith discretion (each accepted Lead, a “Commissionable Lead”). If Yotpo rejects such Lead, Partner will immediately cease all Referral Services with respect to such Lead. If Yotpo accepts such Lead, at Yotpo’s request, Partner shall discuss such Commissionable Lead with Yotpo and assist Yotpo in making contact with the Commissionable Lead by arranging an introduction, meeting, conference call, or other means of communication between Yotpo and the Commissionable Lead.
   4. Active Participation. Partner acknowledges that, where reasonably helpful, Yotpo may request Partner to Actively Participate in the sales process after a Lead has been accepted; if Partner fails to do so, Partner shall forfeit any Referral Fees with respect to such Commissionable Lead.
4. Partner’s Obligations and Restrictions.
   1. Training. Upon reasonable request by Partner, Yotpo will make good faith efforts to provide Partner with sales training focused on the marketing and promotion of Yotpo Products. In addition, Yotpo may require Partner to participate in mandatory training and certification prior to the commencement of any Referral Services or payment of Referral Fees. Yotpo may offer additional training to Partner as it deems fit. Yotpo may change any of its Products or training from time to time, in Yotpo’s sole discretion.
   2. Meetings. At the request of Yotpo, Partner agrees to meet, either in person or via teleconference, to discuss the status of the relationship contemplated herein.
   3. Restrictions. Partner shall not: (a) sell, resell, distribute, license or sublicense the Yotpo Products directly to any Lead, but will instead refer all Leads to Yotpo in accordance with Section 3; (b) make any statements concerning the Yotpo Products that are false, misleading or inconsistent with the Yotpo Materials or other materials (including price lists) published or otherwise supplied by Yotpo from time to time; (c) make any commitments, warranties or guarantees to Leads with respect to the Yotpo Products, the pricing thereof, or Partner’s relationship with Yotpo; (d) distribute any unsolicited bulk emails (spam) mentioning or referring to Yotpo or the Yotpo Products. Partner has no authority to (i) negotiate any contract for or on behalf of Yotpo; (ii) represent itself as an agent of Yotpo, or (iii) bind Yotpo to any contract, representation or understanding concerning Yotpo or the Yotpo Products, or any other products or services offered by Yotpo.
   4. During the Term and for a period of one (1) year thereafter, Partner will not induce or attempt to induce, directly or indirectly, (i) any Yotpo employee to leave his or her employment with Yotpo except through general solicitations not specifically targeted at Yotpo employees, or (ii) any Yotpo customer to terminate any agreements with Yotpo or to otherwise transition to a supplier that is competitive with Yotpo.
5. Trademarks, Intellectual Property and Marketing Materials Usage. 
   1. Yotpo Marks. Subject to the terms and conditions set forth in this Agreement and solely for the purposes hereof, Yotpo grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to use the Yotpo trademarks, service marks, and logos set forth in the Partner Portal or otherwise shared with the Partner by the Yotpo partnership team (the “Yotpo Marks”) to perform its obligations under this Agreement. The use of all Yotpo Marks, including placement and sizing, shall be subject to Yotpo’s then-current trademark use guidelines, which will be provided from time to time. Partner shall, upon request by Yotpo, promptly provide Yotpo with samples of all materials that use the Yotpo Marks. If, in Yotpo’s discretion, Partner’s use of the Yotpo Marks does not meet Yotpo’s then-current trademark usage policy, Yotpo may, at its option, require Partner to revise such materials and re-submit them prior to any further display. Except for the right to use the Yotpo Marks set forth above, nothing contained in this Agreement shall be construed to grant to Partner any right, title or interest in or to the Yotpo Marks, and all right, title, and interest in and to the Yotpo Marks shall be retained by Yotpo. Partner acknowledges that Yotpo asserts its exclusive ownership of the Yotpo Marks and the renown of the Yotpo Marks worldwide. Partner shall not take any action inconsistent with such ownership and further agrees to take all actions that Yotpo reasonably requests to establish and preserve Yotpo’s exclusive rights in and to the Yotpo Marks. Partner shall not adopt, use, or attempt to register any trademarks, service marks, or trade names that are confusingly similar to the Yotpo Marks or in such a way as to create combination marks with the Yotpo Marks.
   2. Yotpo Materials. During the term of this Agreement, Yotpo may make available to Partner certain Yotpo Materials. Subject to the terms and conditions set forth in this Agreement and solely for the purposes hereof, Yotpo grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to distribute the Yotpo Materials exactly as provided to Partner by Yotpo, solely to perform Partner’s obligations under this Agreement.
   3. Ownership. As between Partner and Yotpo, Yotpo retains all right, title, and interest in and to (a) the Yotpo Marks, (b) the Yotpo Products, (c) the Yotpo Materials, and (d) all intellectual property rights related to any of the foregoing including, without limitation, rights associated with any of the following (i) trademarks, service marks, domain names, trade dress, and other indicia of source, together with the goodwill associated therewith, (ii) copyrights, moral rights and works of authorship (whether or not copyrightable), and (iii) trade secrets, know-how, technologies, software, databases, processes, techniques, protocols, methods, formulae, algorithms, layouts, designs, specifications and other Confidential Information related to any of the foregoing. There are no implied licenses under this Agreement. Yotpo reserves all rights not expressly granted to Partner by this Agreement.
   4. Suggestions. If Partner provides Yotpo with feedback or suggestions regarding the Yotpo Products or other Yotpo offerings, Yotpo may use the feedback or suggestions without restriction or obligation.
6. Referral Fees, Payment and Tier Status.
   1. Referral Fees. Subject to the terms of this Agreement, Yotpo shall pay to Partner the applicable Referral Fees based on Net Revenue from Referred Customers. Partner is solely responsible for remitting all taxes associated with any Referral Fees paid to it under this Agreement. All disputes related to Referral Fees must be submitted, in writing, to Yotpo within thirty (30) days of release of payment and provide reasonable details to review the dispute. Referral Fees will be paid for Referred Customers for no longer than the first twelve (12) months of any Order Form executed with such Referred Customer, regardless of the duration of such Order Form.
   2. Payment Terms. Referral Fees are paid to the Partner within forty-five (45) days after the applicable calendar quarter(s) during which Yotpo has received payment of Net Revenue from the Referred Customer, provided that Yotpo has received a signed invoice from Partner setting forth such Referral Fees. All Referral Fees will be paid in US Dollars.  
   3. Maximum Fees. Unless otherwise approved by Yotpo in writing, the aggregate maximum Referral Fee Yotpo will pay to a Partner with respect to a Referred Customer is USD $40,000.00 unless otherwise approved by Yotpo management. 
   4. Enrollment Criteria. In order to receive the Referral Fees under this Agreement, Partner must have submitted via email or the Yotpo Partner Portal all relevant account information and all necessary tax and payment information (the “Enrollment Criteria”). Once Partner complies with all of the Enrollment Criteria, Partner will be eligible to receive the applicable Referral Fees for any Eligible Referrals, but excluding any Forfeited Transactions as set forth below.
   5. Forfeited Transactions. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the Enrollment Criteria remain outstanding for six (6) months following the date when an applicable Referral Fee is due to Partner, then Partner’s right to receive such applicable Referral Fee will be forever forfeited (each, a “Forfeited Transaction”). Yotpo will have no obligation to pay Partner any Referral Fees associated with a Forfeited Transaction. Any accrued but unpaid Referral Fees that are not invoiced to Yotpo within one year of their accrual shall also be forfeited.
   6. Similar Leads. Leads that convert into opportunities that are materially the same (i.e. same Customer, same products) as opportunities that are in Yotpo’s active sale process at the time of the Lead submission, or were in process during the ninety (90) days prior to the Lead submission, are not eligible for Referral Fees.
      
   7. Tiers. In addition to the applicable Referral Fees, Yotpo may offer certain benefits to Partner based on the level of Partner’s participation in the Partner Program and other qualifying criteria, as set forth in an applicable Yotpo Partner Program Contract, the Partner Portal or the Partner Program Guide, (each such level, a “Tier”). Yotpo may, in its sole discretion, change the benefits available, and qualifying criteria for each Tier upon written notice to Partner. Partner’s Tier shall be reviewed periodically to determine Tier eligibility, and Yotpo reserves the right to raise or lower the Tier based on the Partner Program requirements through email or the Partner Portal.
7. Term, Termination, Effects of Termination, Survival. 
   1. This Agreement shall enter into force on the Effective Date and shall remain in effect for one (1) year (the “Initial Term”). At the end of the Initial Term or any subsequent renewal under this Section (the “Renewal Term”), this Agreement will automatically renew for subsequent periods of one (1) year unless terminated by Partner in accordance with the below.
   2. Termination without Cause. Either Party may terminate this Agreement without cause at any time, effective upon thirty (30) days written notice to the other Party.
   3. Termination for Cause. Either Party may terminate this Agreement (i) upon five (5) days written notice of a material breach by the other Party, unless the other Party has cured such breach within the five (5) day period, or (ii) immediately upon written notice to the other if the other Party ceases to conduct its business in the ordinary course or becomes the subject of a bankruptcy, insolvency or similar proceeding that is not dismissed within thirty (30) days of filing.  
   4. Effects of Expiration or Termination. Upon any termination or expiration of this Agreement, Partner shall (a) refrain thereafter from representing itself as a promoter or marketer of Yotpo Products, or as a referral partner of Yotpo, (b) immediately cease all use of any Yotpo Marks and Yotpo Materials, and (c) return to Yotpo the Yotpo Materials and all tangible items in Partner’s possession or under its control containing Confidential Information of Yotpo. Upon any termination or expiration of this Agreement, Yotpo shall return to Partner all tangible items in Yotpo’s possession or under its control containing Partner’s Confidential Information. Upon any termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate. The expiration or termination of this Agreement for any reason, except in accordance with Section 7.3 for a material breach by Partner, shall not relieve Yotpo of its obligation to pay Partner the Referral Fees that are payable hereunder with respect to Commissionable Leads that have been accepted by Yotpo prior to such expiration or termination of this Agreement. In the event that Yotpo terminates this Agreement in accordance with Section 7.3 due to material breach by Partner, Yotpo’s sole and exclusive obligation to Partner shall be to pay Partner the Referral Fees that have accrued up to the date of such termination.
   5. Survival. The following provisions shall survive any expiration or termination of this Agreement: Sections 1 (Definitions), 7 (Term, Termination, Effects of Termination, Survival), 5.3 and 5.4 (relating to Yotpo trademarks), 10.2 (General Disclaimers), 11 (Confidentiality), 12 (Indemnities), 13 (Limitation of Liability), and 14 (General).
   6. Notwithstanding anything to the contrary herein, if Yotpo reasonably believes that Partner is in violation of any term of this Agreement or any Yotpo policies as communicated from time to time on the Partner Program Guide or via other communication, Yotpo may suspend any payments or benefits available to Partner under this Agreement.
8. Compliance with Laws and Ethical and Brand Representation Standards. 
   1. Partner shall comply with all applicable laws and regulations in its activities hereunder and shall not engage in any deceptive, misleading, illegal or unethical marketing activities that may be detrimental to Yotpo or the Yotpo Products (as determined by Yotpo in its sole discretion). Additionally, Partner shall present Yotpo and the Yotpo Products to the Leads and the public in a manner that in Yotpo’s good faith discretion reflects well upon Yotpo.
   2. Partner shall comply, and shall cause its directors, officers, agents or employees to comply, in all respects with the U.S. Foreign Corrupt Practices Act of 1977 and any similar law in any jurisdiction in which Partner operates in connection with this Agreement (“Anti-Corruption Laws”) and shall promptly inform Yotpo in writing upon becoming aware of any violations of applicable Anti-Corruption Laws. Without limiting the foregoing, Partner warrants that it has not offered or paid, and will not offer or pay, any money or anything else of value, to any person for the purpose of securing any improper advantage in violation of applicable Anti-Corruption Laws.
   3. To the extent that personally identifiable information is supplied by Partner to Yotpo in relation with a Lead, Partner shall comply with its statutory data protection obligations in accordance with all applicable data protection laws. Without limiting the forgoing, Partner shall ensure that any personally identifiable information supplied or disclosed to Yotpo in relation with a Lead has been obtained fairly and lawfully and that Partner has obtained all necessary consents from individuals whose data is being processed and has the right to transfer such personally identifiable information to Yotpo for the purposes of this Agreement.
9. Representations and Warranties.
   1. Representations and Warranties. Each Party represents and warrants to the other Party that (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach (including with the passage of time) of any other agreement to which it is a party, and (c) this Agreement has been duly executed and delivered by such Party and constitutes the valid and binding agreement of such Party, enforceable against such Party in accordance with its terms. Partner also represent and warrants that is not identified on the OFAC list of Specially Designated and Blocked Persons or any other U.S. or Israeli list of restricted parties, and it’s not operating from, established under the laws of, or ordinarily resident in Cuba, Iran, Lebanon, North Korea, Syria, or the Crimea region of Ukraine (each a “Sanctioned Country”) and collectively the “Sanctioned Countries”), and will not perform Referral Services in a Sanctioned Country.
   2. GENERAL DISCLAIMERS. EACH OF YOTPO AND PARTNER ACKNOWLEDGES AND AGREES THAT, IN ENTERING INTO THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IT HAS NOT RELIED UPON ANY WARRANTIES, EXPRESS OR IMPLIED, AND THAT NEITHER PARTY HAS MADE ANY REPRESENTATIONS, ASSURANCES, OR PROMISES THAT YOTPO WILL RECEIVE ANY NEW REFERRED CUSTOMERS OR NEW BUSINESS OR THAT PARTNER WILL RECEIVE ANY REFERRAL FEES AS A RESULT OF THIS AGREEMENT. YOTPO DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE YOTPO PRODUCTS, WHICH ARE PROVIDED AS-IS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAWS, INCLUDING WITH RESPECT TO ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
   3. Warranties to Third Parties. Except in the course of delivering the Yotpo Materials as specifically permitted in this Agreement, Partner shall not provide any representations or warranties to any Lead or any other third party with respect to the Yotpo Products.
10. Confidentiality. 
    1. Confidential Information. “Confidential Information” means any and all information of a Party hereto (the “Disclosing Party”) that is disclosed to the other Party hereto (the “Receiving Party”), whether orally or in writing or through any media; provided, however, that Confidential Information shall not include information that is: (i) in the public domain or enters the public domain through no fault of Receiving Party; (ii) communicated to the Receiving Party by a third Party without any breach of any known confidentiality to Yotpo by such third Party; (iii) already in Receiving Party’s possession free of any obligation of confidentiality when disclosed to Receiving Party; or (iv) independently developed by Receiving Party without use of the Confidential Information and without breach of any obligation of confidentiality.
    2. Obligation of Confidentiality. Receiving Party acknowledges that Confidential Information may contain valuable trade secrets and other proprietary information of Disclosing Party and remains the sole and exclusive property of Disclosing Party. Receiving Party shall (i) use Confidential Information only for the purpose for which it is provided; (ii) restrict disclosure of Confidential Information to its employees and contractors who have a need to know; (iii) not disclose Confidential Information to any other third Party without Disclosing Party’s consent; and (iv) protect Confidential Information in the same way it protects its own Confidential Information of a similar nature, but in no event exercising less than reasonable care.
    3. Compelled Disclosure. Notwithstanding the foregoing, Receiving Party shall not be in violation of this Section if it discloses Confidential Information in response to a valid order by a court or other governmental entity, provided that Receiving Party provides Disclosing Party as prompt notice as practicable of such impending disclosure and reasonable assistance (at Disclosing Party’s expense) to permit Disclosing Party to contest the order or seek confidential treatment.
11. Indemnification.
    1. By Yotpo. Yotpo shall indemnify, defend, and hold Partner harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) arising out of any third-party claims, suits, actions, or proceedings (collectively, “Claims”) based on an allegation that the Yotpo Marks, in the absence of any modifications by Partner thereto, infringes any United States trademark of any third party.
    2. By Partner. Partner shall indemnify, defend, and hold Yotpo and its subsidiaries, affiliates, officers and employees harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) arising out of any Claims related to Partner’s violation of this Agreement.
    3. Indemnification Procedure. An indemnifying party hereunder shall be liable for any costs and damages to third parties incurred by the other party which are attributable to any such Claims, provided that such other party (a) notifies the indemnifying party promptly in writing of the claim, (b) gives the indemnifying party the sole authority to defend, compromise or settle the claim (provided, that in the case of any compromise or settlement requiring the indemnified party to admit fault, the indemnified party shall have the right to refuse such compromise or settlement), and (c) provides all available information, assistance, and authority at the indemnifying party’s reasonable request and at the indemnifying party’s reasonable expense to enable the indemnifying party to defend, compromise, or settle such claim. An indemnifying party hereunder shall diligently pursue any defense required to be rendered hereunder, shall keep the indemnified party informed of all significant developments in any action defended by the indemnified party, and shall not enter into any settlement affecting the indemnified party’s interests without the prior consent of the indemnified party.
12. Limitation on Liability.
    1. EXCEPT IN CONNECTION WITH BREACHES OF CONFIDENTIALITY AND PAYMENTS TO THIRD PARTIES ARISING FROM EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL EITHER PARTY, ITS SUCCESSORS OR ASSIGNS, BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF ANY CLAIM OR CAUSE UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF PAYMENTS ACTUALLY PAID TO PARTNER UNDER THIS AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
13. General.
    1. Assignment. Partner shall not assign or transfer this Agreement, in whole or in part, whether by operation of law, change of control, or otherwise, or delegate any of its obligations hereunder, without the prior express written consent of Yotpo. Subject to the foregoing, this Agreement shall be binding upon the successors and permitted assigns of the Parties. Yotpo may assign this Agreement to any of its affiliates, subsidiaries, or to an entity with or into which it is merged or consolidated or to which it sells its stock or other equity interests or all or substantially all of its assets. Any assignment in violation of the foregoing shall constitute a material breach of this Agreement and shall be null and void.
    2. Governing Law; Venue. This Agreement is governed by the laws of the jurisdictions based on your primary business location as set forth below, without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be based on your primary business location as set forth below, and both parties submit to the personal jurisdiction of those courts. If you are based in the U.S.: New York State law; New York City venue. If you are based outside of the U.S.: England and Wales law; London venue.
    3. Relationship of the Parties. The Parties are independent contractors, and no agency, Partnership, joint venture or employee-employer relationship is created by this Agreement. Regardless of the use of the word “partner” in the title of this Agreement, neither Party is, nor shall be deemed to be, a partner, joint venturer, agent, employee or legal representative of the other Party for any purpose. Neither Party shall be entitled to enter into any contracts in the name of or on behalf of the other Party, and neither Party shall be entitled to pledge the credit of the other Party in any way or hold itself out as having authority to do so. No Party shall incur any debts or make any commitments for the other, except to the extent, if at all, explicitly provided herein.
    4. Notices. All required or permitted notices and consents must be in writing and sent to the addressee at the address set forth above, or such address as the parties may specify in writing from time to time, and must be delivered by personal delivery, facsimile or recognized overnight courier. Notices shall be deemed given upon delivery. If to Yotpo: 35 HaMasger St, Tel Aviv, Israel, email: legal_notices@yotpo.com Attn: Legal. If to Partner: Your address as provided in your account in the Partner Portal.
    5. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.
    6. No Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
    7. Amendment. Yotpo may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. Yotpo will notify Partner of such changes through email or a notification within the Partner Portal with directions to the latest version. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically. Yotpo may require you to provide consent to the updated Agreement in a specified manner before further participation in the Partner Program is permitted. If you do not agree with a modification to this Agreement, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, this Agreement will terminate sixty (60) days after we receive this notice and our relationship will continue to be governed by the terms and conditions of the version of this Agreement applicable immediately prior to modification for the remainder of the Agreement term. Otherwise, your continued participation in the Partner Program constitutes your acceptance of such change(s).
    8. Complete Agreement. The Agreement constitutes and contains the complete, final and exclusive understanding and agreement of the Parties and cancels and supersedes any and all prior negotiations, correspondence, understandings, and agreements, whether oral or written, between the Parties respecting the subject matter thereof.