1. Changes to this Agreement. Yodelay reserves the right, in its sole discretion, to change, modify, supplement or delete any terms of this Agreement at any time. Yodelay will use its reasonable efforts to provide you with notification of any material changes (as determined in Yodelay’s sole discretion) to this Agreement. You should visit this page whenever you use the Service to review this Agreement and learn if any terms have changed. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must immediately stop using the Service. Your continued use of the Service following any revision to this Agreement constitutes your complete acceptance of any and all such changes.
2. Content; DMCA.
2.1 All text, images, articles, photographs, illustrations, audio, graphics, graphs, information, links, videos or video clips, and other materials or arrangements of materials uploaded, downloaded or appearing on the Service or available through the Service, including without limitation material on the Service Public Areas or Groups (collectively, the “Content”) are provided for your informational purposes only. You are responsible for your use of the Service and for any Content you provide, including compliance with applicable laws, rules, and regulations. You should only provide Content that you are comfortable sharing with others.
2.2 Any use or reliance on any Content or materials posted via the Service or obtained by you through the Service is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Service or endorse any opinions expressed via the Service. You understand that by using the Service, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. All Content is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Service and we cannot take responsibility for such Content.
2.3 We reserve the right to remove Content that violates this Agreement, including for example, copyright or trademark violations or other intellectual property misappropriation, impersonation, unlawful conduct, or harassment. If you believe your rights have been violated by, or you otherwise object to, any posting, content or information on the Service, please contact us promptly so we can evaluate the claim and take appropriate action.
2.4 It is Yodelay’s policy to respond promptly to claims of copyright infringement submitted under the Digital Millennium Copyright Act (“DMCA”), and to remove, or disable access to, infringing material as may be required. If you believe that any of the content or materials appearing on this Service contain infringements, please send a notice to our designated agent at the address stated below. Your notice should contain the following: (i) a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; (ii) identification of the copyrighted work claimed to be infringed; (iii) identification of the content or material claimed to be infringing; (iv) a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; (v) the address, telephone number or email address of the claimant; (vi) a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vii) a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Yodelay will also terminate a user’s account if a user is deemed to be a repeat infringer, namely, one who has been notified of bona fide infringing activity more than twice. Our designated agent, to whom you should direct your DMCA claim (or other intellectual property-related complaints), is available at:
3. Access to the Service.
3.1 Subject to your acceptance of and compliance with this Agreement, Yodelay grants to you a personal, non-exclusive, non-transferable, revocable, limited, worldwide license to use the Service and associated software and Content for your personal non-commercial use. You agree not to use the Service for any other purpose, or to download, save, copy or distribute to individuals, other websites or web publishers any Content that is not owned by or contributed by you except strictly in connection with your proper use of the Service or as specifically allowed in this Agreement.
3.2 Subject to your acceptance of and compliance with this Agreement, Yodelay grants to you a non-exclusive, non-transferable, revocable limited license to post a screen shot from your account (and of any other Content that Yodelay specifically notifies you may be posted on other web sites), on (i) your own personal web site, or (ii) a third party web site that permits posting of content at the direction of users; provided, however, that such third party web site: (a) is not commercially competitive to Yodelay; (b) does not criticize or injure Yodelay; (c) does not obtain any rights to such Content other than a non-exclusive license to post it at your direction; (d) does not charge for access to such Content or associate products, services or advertising with such Content; (e) complies with all applicable laws; (f) does not violate the legal rights of others; and (g) does not publish or distribute any inappropriate, infringing, defamatory, profane, indecent, obscene, unlawful or otherwise objectionable information or material. All of Yodelay’s rights and remedies are expressly reserved, and Yodelay may revoke this limited license, in whole or in part, at any time upon notice.
3.3 Yodelay may change, modify, suspend, or discontinue in its entirety or any aspect of the Service at any time. Yodelay may also impose limits on certain features or restrict or prohibit your access to parts or all of the Service at any time, all without notice or liability.
3.4 Your use of the Service is conditioned upon your compliance with this Agreement and any use of the Service in violation of this Agreement may constitute infringement of Yodelay’s copyrights in and to the Service and Content (as applicable). Yodelay reserves the right to terminate your access to the Service without notice if you violate this Agreement or for any reason at Yodelay’s discretion.
4. Grant of Rights to Yodelay.
4.1 By submitting, posting or displaying Content on or through the Service, you grant to Yodelay a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license (with the right to sublicense, transfer, and assign) to: (i) use, copy, reproduce, adapt, modify, create derivative works of, publish, transmit, display, perform and distribute such Content in any and all media or distribution methods now known or later developed (for clarity, these rights include, for example, curating, transforming, and translating); and (ii) use all comments, feedback, blog or forum statements, suggestions, ideas, emails, and other submissions disclosed or submitted to Yodelay in connection with your use of the Service (collectively, “Submissions”) in any manner Yodelay may desire, including, but not limited to use, copy, reproduce, adapt, modify, create derivative works of, publish, transmit, display, perform and distribute such Submissions, in any and all forms and media now known or hereafter devised, without compensation to you and without identifying you as the creator. This license authorizes us to make your Content available to others in your Group(s) or in Public Area(s), as you designate, and to let other users do the same. You agree that this license includes the right for Yodelay to use the Content to provide, promote, and improve the Service.
4.4 You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any Content that you submit, post or display on or through the Service. You agree that such Content will not contain material subject to copyright or other proprietary rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant Yodelay the license described above.
5. Registration and Subscription. You may become an entry-level member of the Service at no cost. As an entry-level member that establishes a basic Service account (your “Service Account”), you will have the ability to participate in some, but not all, of the features and services available within the Service. In order to access certain features and services, you must pay a fee for a higher level of membership, and establish a Service Account that includes certain payment-related information for paying subscription fees (your “Subscription Account”). We may change the fees charged at any time. You are responsible for safeguarding your account, so use a strong password and limit its use to your account. We cannot and will not be liable for any loss or damage arising from your failure to comply with the above.
5.1 If you purchase a paid Service subscription (“Subscription”), you understand that the use of the Service may result in payments by you for access to the Service and Content (“Charges”). The current Charges applicable to the Service subscriptions offered by Yodelay are viewable on the Yodelay web site. Subscription payments will be processed using Google Pay or the Apple App Store, depending on where you purchased the Subscription. Charges will be inclusive of applicable taxes where required by law. For any past due Charges, Yodelay may charge you interest at the lesser of (i) one-and-a-half percent (1.5%) per month, or (ii) the greatest amount permitted by applicable law, in each case from the date the Charge is due until the date the Charge is fully paid. Yodelay will process payment of the applicable Charges in advance, using the preferred payment method designated in your Subscription Account, and will send you a receipt by email. Charges paid by you are final and non-refundable, unless prohibited by applicable law or otherwise determined by Yodelay in its sole discretion. Any request for lower Charges or disagreement with the Charges should be addressed to Yodelay by contacting email@example.com.
5.2 To the extent permitted by applicable law, with respect to any Subscription, you agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid on behalf of your account prior to any termination of your account. Although under certain circumstances users located in the European Economic Area may have a right to cancel pre-paid account subscriptions within 14 days of signing up for, upgrading to or renewing a Subscription account, by accessing your Subscription Account, you acknowledge that PERFORMANCE OF THIS AGREEMENT HAS BEGUN UPON ACCESSING YOUR SUBSCRIPTION ACCOUNT AND YOU THEREBY LOSE YOUR RIGHT OF WITHDRAWAL UNDER APPLICABLE LAW, INCLUDING APPLICABLE EUROPEAN UNION LAW, IN RESPECT OF THE PURCHASE OF ANY DIGITAL CONTENT HEREUNDER, AND YOU THEREBY WAIVE ANY RIGHT YOU MAY HAVE TO A REFUND OF ANY AMOUNTS WHICH WERE PRE-PAID ON BEHALF OF YOUR SUBSCRIPTION ACCOUNT PRIOR TO ANY TERMINATION OF YOUR SUBSCRIPTION ACCOUNT. However, if you voluntarily cancel your Subscription, the termination of your account will not occur until the end of the subscription period for which you have paid, and you will be able to continue using your Subscription Account until such time.
5.3 We reserve the right to establish, remove and/or revise Charges for any or all aspects of the Service at any time in our sole discretion, by posting or otherwise delivering notice to you. Any use of the Service after a notice of new or revised Charges has been posted on the Service or delivered to you will be deemed your acceptance of these new or revised Charges.
5.4 Yodelay may from time to time provide certain users with promotional offers and discounts that may result in different Charges for the same or similar Service, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Service or the Charges applied to you.
When you purchase any time-based Subscription, auto-renewal will automatically be selected in your account with respect to such Subscription. At the end of each selected subscription period, an order will automatically be placed for you for the applicable subscription renewal and Yodelay will process payment of the applicable Charges, using the preferred payment method designated in your Subscription Account, and will send you a receipt by email for such subscription. If you do not wish your subscription to automatically renew, you may cancel your Subscription at any time through your Subscription Account prior to the end of the then-current subscription period or email Yodelay at firstname.lastname@example.org.
6. Use of the Service by Minors. The Service is intended for individuals at least 13 years old. Individuals under the age of 13 are prohibited from using the Service. Additionally, individuals between the ages of 13 and the age of majority in the jurisdiction in which they are located may not use the Service unless their parent or guardian registers them to use the Service. If you register or allow a minor to use the Service, you hereby accept this Agreement on behalf of yourself and such minor, and you agree that you will be responsible for all uses of the Service by the minor, whether or not these uses were authorized by you. If you are a parent or guardian registering a minor to use the Service, you hereby represent and warrant that you are the legal parent or guardian of that minor.
7. Ownership of Intellectual Property.
7.1 The Service is protected by copyright, trademark, and other laws of both the United States and other countries. Nothing in this Agreement gives you a right to use the Yodelay name or any of the Yodelay trademarks, logos, domain names, other distinctive brand features, and other proprietary rights. All right, title, and interest in and to the Service (excluding Content provided by users), including all intellectual property rights, are and will remain owned exclusive by Yodelay and its licensors. Any feedback, comments, or suggestions you may provide regarding Yodelay or the Service is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
7.2 You do not acquire any ownership rights by using the Service, or by copying or downloading Content or other material from or by using the Service.
7.3 You agree not to copy, redistribute, publish or otherwise exploit Content, except as expressly permitted herein, without the express prior written permission of Yodelay.
7.4 You hereby waive any right you may have to inspect or approve materials or Content that may be used in connection with your name and/or image (in any form or media), or the uses made of Content that you submit, post or display on or through the Service, in connection with providing the Service. You hereby waive and release any claims you may have against Yodelay for any damages, costs or liabilities you incur from our use of your Content, including but not limited to damages caused by any distortion, alteration, optical illusion or composite use, whether intentional or otherwise, that may occur in making, processing, duplicating, distributing or displaying Content that you submit, post or display on or through the Service.
7.5 You agree to include, and to not remove or alter, Yodelay’s trademark, copyright or other proprietary rights notices, as provided by Yodelay on or in connection with the Service, when using or sharing content, or otherwise using the Service, and you agree to comply with usage guidelines that may be provided by Yodelay from time to time. You agree that all goodwill that arises in connection with your use of Yodelay trademarks inures exclusively to Yodelay, and you agree not to challenge Yodelay’s ownership or control of any Yodelay trademarks, nor use or adopt any trademarks that might be confusingly similar to such Yodelay trademarks.
8. Terms for App Store Apps
8.1 If you accessed or downloaded the Service from the online application store or platform owned by or operated on behalf of Apple, Inc. (the “Apple Store”), you agree to use the Service only: (1) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software) and that you own or control; and (2) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service as of the effective date of this Agreement. If you accessed or downloaded the Service from any app store or distribution platform (such as the Apple Store, Google Play or the Amazon Appstore) (each, an “App Provider”), then you acknowledge and agree that:
8.2 This Agreement is between you and Yodelay, and not with the App Provider, and that, as between Yodelay and the App Provider, Yodelay is solely responsible for the Service.
8.3 The App Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
8.4 In the event of any failure of the Service to conform to any applicable warranty, you may notify App Provider and App Provider will refund to you any purchase price you paid for the Service (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the Service. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Service to conform to any warranty will be the sole responsibility of Yodelay.
8.5 App Provider is not responsible for addressing any claims you or any third party may have relating to the Service or your possession and use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy, or similar legislation.
8.6 In the event of any third-party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights, Yodelay will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim solely to the extent required by this Agreement.
8.7 App Provider and its subsidiaries are third-party beneficiaries of this Agreement as related to your license of the Service and, upon your acceptance of this Agreement, App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
8.8 You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the Service nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Service, you represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
9. Public Areas. The Service may feature groups formed by you and your friends and family (“Groups”), various community areas and other public forums, including but not limited to blogs or member communities, discussion boards, question and answer areas and comment areas (collectively, the “Public Areas”). If you use a Public Area or Group you are solely responsible for your own Content, the consequences of posting your Content, and your reliance on any information in the Public Areas or Groups or other areas of the Service. If you feel threatened or believe that someone else is in danger, you should contact your local law enforcement agency immediately. Any information you share, including without limitation any discussions with others, in any online Public Area (other than Groups) is by design open to the public and is not private. Similarly, any information you share, including without limitation any discussions with others in Groups, is by design open to all members of the Group and is not private. Yodelay shall have no responsibility for any actions taken, or failures to take action, with respect to the Public Areas of the Service or Groups or any submissions by you or other users. As with any public forum on any website, the information you post may show up in third-party search engine results.
10. Passwords. Yodelay has several tools that allow you to record and store information in your account. You are responsible for all actions on the Service by you or by anyone using your password or account, and for taking all reasonable steps to ensure that no unauthorized person shall have access to your password or account. You agree not to share your password with any other individual, and agree that you are solely responsible for all actions taken by individuals who use the Service through your password or account. Without limiting the foregoing, it is your sole responsibility to: (i) control the dissemination and use of your login code and password; (ii) authorize, monitor, and control access to and use of your Service account and password; (iii) promptly inform Yodelay of any need to deactivate your password.
11. Usage Rules. As a condition of your use of and access to the Service, you agree to comply with any application-, tool-, or content-specific rules published within or in association with the Service, including but not limited to the Community Guidelines, as well as the following usage rules, which Yodelay may modify or supplement in its discretion from time to time.
11.1 You agree that you will not, in regard to the Service (as determined by Yodelay in its discretion):
(a) copy, adapt, reverse engineer, decompile, reverse assemble, modify or attempt to discover any software (source code or object code) that the Service creates to generate web pages or any software or other products or processes accessible through the Service;
(b) use or launch, develop or distribute any automated system, including, without limitation, any spider, robot (or “bot”), cheat utility, scraper or offline reader that accesses the Service, or use or launch any unauthorized script or other software;
(c) distribute any virus, time bomb, trap door, Trojan horse, worm, malware, ransomware or other harmful, malicious or disruptive computer code, mechanism, software, script, agent or program;
(d) cover or obscure any notice, legend, warning, banner or advertisement contained on the Service;
(e) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service;
(f) sell the Service or any part thereof in exchange for real currency or items of value;
(g) violate the Community Guidelines or any applicable law, including without limitation any applicable export laws;
(h) harvest or otherwise collect information about others, including email addresses, without their permission;
(i) infringe or violate the rights of any other party, including without limitation any intellectual property rights or rights of privacy or publicity;
(j) engage in conduct that is obscene, offensive, pornographic, fraudulent, deceptive, defamatory, threatening, harassing, abusive, slanderous, hateful, or causes embarrassment to any other person;
(k) further any chain letters or pyramid schemes, transmit unsolicited messages, or engage in “spam;”
(l) deliberately mislead anyone as to your identity, impersonate another, falsely identify the source of any Content, or allow another person or entity to use your identity in order to access the Service or post or view Content;
(m) engage in conduct that conflicts with the spirit or intent of the Service, including without limitation, by disrupting the flow of dialogue in a Public Area or Group, restricting any other user from using or enjoying the Service, or exposing Yodelay or another to any liability or detriment of any kind;
(n) use automated queries, including screen and database scraping, spiders, robots, crawlers, information harvesting, and any other automated activity with the purpose of obtaining Content, information or data from the Service, unless you receive the express written permission of Yodelay;
(o) access, tamper with, or use non-public areas of the Service;
(p) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
(q) access or search or attempt to access or search the Service by any means (automated or otherwise) other than through our currently available, published interfaces (and only pursuant to the applicable terms and conditions);
(r) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive or false source-identifying information; or
(s) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service.
13. Child Online Protection Act Notification. Pursuant to 47 U.S.C. § 230(d) as amended, Yodelay hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying providers of such protection is available is available at the following links:
Please note that Yodelay is not affiliated with the above listed sites, nor is the above intended as an endorsement of any of the products or services listed on such sites.
14. Disclaimers; Limitations; Waivers of Liability.
14.1 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS AND USE OF THE SERVICE AND CONTENT IS AT YOUR SOLE RISK, AND THAT THE SERVICE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. YODELAY, ITS AFFILIATES, SUBSIDIARIES, AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “YODELAY PARTIES”), EXPRESSLLY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE FULL EXTENT ALLOWED UNDER APPLICABLE LAWS.
14.2 THE YODELAY PARTIES FURTHER MAKE NO REPRESENTATIONS OR WARRANTIES AND DISCLAIM ALL RESPONSIBILITY FOR: (I) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICE OR ANY CONTNET; (II) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE OR ANY CONTENT; (III) THE DELETION OF, OR FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT AND ANY OTHER COMMUNICATIONS, IN ANY FORMAT OR FORM, MAINTAINED BY THE SERVICE; AND (IV) WHETHER THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. YODELAY IS NOT RESPONSIBLE FOR TECHNICAL MALFUNCTIONS OR OTHER PROBLEMS OF TELEPHONE NETWORKS OR SERVICES, COMPUTER SYSTEMS, MOBILE PHONE EQUIPMENT, SOFTWARE, OR EMAIL, INCLUDING TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A USER’S OR TO ANY OTHER PERSON’S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING OR DOWNLOADING CONTENT OR OTHER MATERIALS OR INFORMATION IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM A YODELAY PARTY OR THROUGH THE SERVIOCE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE IN THIS AGREEMENT.
14.3 THE YODELAY PARTIES DO NOT ENDORSE OR WARRANT ANY CONTENT, PRODUCT, SERVICE, OPINION, OR OTHER INFORMATION THAT MAY BE REFERENCED ON OR THROUGH THE SERVICE. THE SERVICE IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. THE YODELAY PARTIES HAVE NO RESPONSIBILITY FOR OR INVOLVEMENT WITH ANY RELATIONSHIP THAT EXISTS OR COMES TO EXIST BETWEEN A USER OF THE SERVICE AND ANY OTHER PERSON THROUGH THE SERVICE.
14.4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE YODELAY PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, OR THE USE OR MISUSE OF CONTENT IN ANY WAY WHATSOEVER ARISING OUT OF OR RESULTING FROM (I) THE USE OF, OR INABILITY TO USE OR ACCESS THE SERVICE; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (III) ANY CONTENT OBTAINED FROM THE SERVICE; OR (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR CONTENT, IN EACH INSTANCE WHETHER OR NOT THE YODELAY PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, AND A DETERMINATION IS MADE THAT YODELAY IS LIABLE, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE YODELAY PARTIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S.$100.00) OR THE AMOUNT YOU HAVE PAID YODELAY, IF ANY, FOR THE SERVICE IN THE 90 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST CLAIM WAS ASSERTED. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE YODELAY PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14.5 YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF YODELAY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEBSITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE YODELAY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE YODELAY PARTIES.
14.6 YODELAY IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE THE YODELAY PARTIES FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
14.7 TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OR ACCESS OF, OR INABILITY TO USE OR ACCESS, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
14.8. Release. You forever release, discharge, and covenant not to sue the Yodelay Parties from any and all liability, claims, actions, and expenses that may arise, whether caused by the negligence of the Yodelay Parties or otherwise, in connection with your use of the Service or your interaction with any party through or as a result of the Service. In other words, you cannot sue the Yodelay Parties if anything happens to you or your property from using the Service or interacting with any party through the Service. You agree that the provisions in this Section 14 will survive any termination of your account(s), the Service, or this Agreement.
15. Indemnification. You agree to defend, indemnify and hold harmless the Yodelay Parties from and against all liability, claims, actions and expenses, including attorneys’ fees and costs, arising out of your use of the Service or Content or your breach or alleged breach of any term, condition, obligation, representation or warranty in this Agreement. You agree that the provisions in this paragraph will survive any termination of your account(s) the Service, or this Agreement.
17. Governing Law/Waiver of Injunctive Relief.
17.1 This Agreement and all aspects of the Service shall be governed by and construed in accordance with the internal laws of the U.S. and the Commonwealth of Massachusetts governing contracts entered into and to be fully performed in Massachusetts (without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state or federal courts located in Boston, Massachusetts, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in Boston, Massachusetts.
17.2 You acknowledge that the rights granted and obligations made hereunder to Yodelay are of a unique and irreplaceable nature, the loss of which will irreparably harm Yodelay and which cannot be replaced by monetary damages alone, so that Yodelay will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
18. Dispute Resolution/Mandatory Arbitration.
18.1 To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Yodelay agree to first attempt to negotiate informally any Dispute (except those Disputes expressly provided below) for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to Yodelay LLC, 44 Merrimac Street, Newburyport, MA 01950.
18.2 If you and Yodelay are unable to resolve a Dispute through informal negotiations within 30 days, either you or Yodelay may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT, AND ARE HEREBY WAIVING YOUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
18.3 Notwithstanding the above, you and Yodelay agree that arbitration will be limited to the Dispute between Yodelay and you individually. To the full extent permitted by law: (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
18.4 You and Yodelay agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Yodelay’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
19.1 The failure of Yodelay to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under any provision of this Agreement will not be construed as a waiver or relinquishment of Yodelay’s right to assert or rely upon any such provision or right in that or any other instance.
19.2 You and Yodelay agree that if any portion of this Agreement, except any portion of Section 18.4, is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which will continue to be in full force and effect. If Section 18.4 is found to be illegal or unenforceable then neither you nor Yodelay will elect to arbitrate any Dispute falling within that portion of Section 18.4 found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within Boston, Massachusetts, and you and Yodelay agree to submit to the personal jurisdiction of that court.
20. Term and Termination.
20.1 This Agreement will remain in effect as long as your account is up-to-date and you remain in compliance with the terms hereof, unless it has been voluntarily suspended or terminated by you or Yodelay.
20.2 You may terminate this Agreement by destroying all Service-related Content and materials obtained from the Service, Yodelay or any other web site or source. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from Yodelay if, in our sole discretion, you fail to comply with any term or provision of this Agreement or for any reason in Yodelay’s sole discretion.
20.3 Following the termination of this Agreement, your account(s), or the Service, Yodelay shall retain all rights to the Submissions pursuant to this Agreement. Unless terminated by Yodelay for breach or other good cause, you will be entitled to a pro rata refund of any amounts paid by you for the Service for the period following termination. The rights and obligations under Sections 2.2, 2.3, 3.3., 3.5, 4, 5.2, 7, 14, 15, 17, 18, 19, 20.3, 21, 22, and 23, will survive the termination or expiration of this Agreement, as well as any other rights or obligations that by their nature are intended to survive termination or expiration of this Agreement.