This Web Site is owned and operated by Yoyometrics,
120 Broadway, Suite 300, Santa Monica, CA 90401.
IF YOU DO NOT AGREE TO BE BOUND BY THE TOS, DO NOT ACCESS OR USE THE WEB SITE OR USE ITS SERVICES.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
This Terms of Service ("TOS") is a legally binding agreement made by and between Yoyometrics ("Yoyometrics" or “us” or “we”) and you. This TOS governs your use of www.yoyometrics.com ("Web Site"), INCLUDING the services offered by Yoyometrics on the Web Site ("Services"). BY ACCESSING OR USING ANY PART OF THE WEB SITE, OR BY REGISTERING FOR AND USING THE ANY YOYOMETRICS SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THESE TOS.
YOYOMETRICS RESERVES THE RIGHT TO MAKE CHANGES TO THIS TOS AT ANY TIME. YOUR CONTINUED USE OF THE WEB SITE CONSTITUTES ASSENT TO ANY NEW OR MODIFIED PROVISION OF THIS TOS THAT MAY BE POSTED ON THE WEB SITE.
1. Your use of the website
2. Prohibited Conduct. In your use of the Web Site, you may not: (i) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any party; (ii) disrupt or interfere with the security or use of the Web Site, or any Web Sites linked to the Web Site; (iii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Web Site; (iv) interfere with or damage the Web Site, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (v) impersonate another person or entity, misrepresent your affiliation with a person or entity, including (without limitation) us, or use a false identity; (vi) attempt to obtain unauthorized access to the Web Site; (vii) engage, directly or indirectly, in transmission of “spam,” chain letters, junk mail or any other type of unsolicited solicitation; (viii) collect, manually or through an automatic process, information about other users without their express consent or other information relating to the Web Site; (ix) submit false or misleading information to us; (x) violate any law, rule, or regulation; (xi) engage in any activity that interferes with any third party’s ability to use or enjoy the Web Site; or (xii) assist any third party in engaging in any activity prohibited by these TOS.Registration. To use the Services, you must open an account. You must complete the registration process by providing the complete and accurate information requested on the registration form. You must promptly notify Yoyometrics if any of this information changes. If you fail to provide or update this information, Yoyometrics may terminate your right to use the Web Site or the Services. You will also be asked to provide a user name and password. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, username, or password of someone else at any time. You agree to notify Company immediately on any unauthorized use of your account, user name, or password. Company shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.FEES
(A) Payment. You must pay for your use of the Services in accordance with the instructions and provided on the Web Site. We provide the Services based on various pricing plans, that may change from time to time. All payments you make to Yoyometrics are non-refundable.Taxes. You will solely be responsible for all taxes arising from, relating to or connected with your use of the Web Site or Services, except for taxes relating to Yoyometrics’s income. Yoyometrics will have the right to charge your credit card for any taxes that it is required to pay or in fact collects.
CONTENT; INTELLECTUAL PROPERTY Your ContentThird-Party Intellectual Property. When accessing the Web Site or using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service and the Web Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any Content you provide or transmit, or that is provided or transmitted using your account. The burden of proving that any Content does not violate any laws or third party rights rests solely with you.
(A) Our Intellectual Property Rights. All materials on the Web Site, including without limitation, the logos, design, text, graphics, other files, and the selection and arrangement thereof are either owned by us or are the property of our suppliers or licensors. You may not use such materials without permission. © 2011 Yoyometrics. ALL RIGHTS RESERVED. Yoyometrics is our trade name. We own yoyometrics.com, yoyometrics, yoyoit, yoyoit.com and the related design marks, and the other trademarks on the Web Site are owned by third parties. Page headers, custom graphics, button icons and scripts are our trademarks or trade dress. You may not use any of these trademarks, trade dress, or trade names without our express written permission.
(B) Comments. All comments, feedback, suggestions, ideas, and other submissions that you disclose, submit or offer to us in connection with your use of the Web Site, including, without limitation, all data generated through the use of the Web Site and Service (collectively, “Comments”) will become our exclusive property. Such disclosure, submission or offer of any Comments shall constitute an assignment to us of all worldwide right, title and interest in all patent, copyright, trademark, and all other intellectual property and other rights whatsoever in and to the Comments and a waiver of any claim based on moral rights, unfair competition, breach of implied contract, breach of confidentiality, and any other legal theory relating to submissions. Thus, we will own exclusively all such right, title and interest and shall not be limited in any way in the use, commercial or otherwise, of any Comments. You should not submit any Comments to us if you do not wish to assign such rights to us. We are and will be under no obligation: (i) to maintain any Comments in confidence; (ii) to pay to you or any third party any compensation for any Comments; or (iii) to respond to any Comments. You are and shall remain solely responsible for the content of any Comments you make.
2.3 Our License to You
(A) License. We may make certain technology available to you from the Web Site. If you download documents from the Web Site, the technology, including the technology and images embedded in those documents, and accompanying data (collectively, “Technology”) are deemed to be licensed to you by us, for your personal, noncommercial, home use only. Subject to this TOS and your compliance with the TOS, we grant you a non-exclusive, revocable license to make personal, non-commercial use of the Service solely for the purposes that we intend, as described on the Web Site. We do not transfer either the title or the intellectual property rights to the Technology, and we retain full and complete title to the intellectual property rights therein. All trademarks and logos are owned by Company or its licensors and you may not copy or use them in any manner. Other than the limited license granted to you in this Section 4.3(A), you have no other right, title or interest in or to the Service, Software or Documentation. Any rights not expressly granted to you are fully reserved by us and our suppliers or licensors, as applicable, and no such rights are conferred by estoppel, operation of law, implication or otherwise.
(B) Third-Party Software. Certain portions of the Technology may be subject to separate licensing terms as set forth from time to time in revisions of the TOS. By using the Web Site and Services, you agree that you have read, understand and agree to be bound by such terms.
2.4 Copyright Infringement. Yoyometrics has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or with the Service. Yoyometrics has adopted a policy that provides for the immediate suspension and/or termination of any Site or Service user who is found to have infringed on the rights of us or of a third party, or otherwise violated any intellectual property laws or regulations. Our policy is to make reasonable efforts to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want us to delete, edit, or disable the material in question, you must provide us with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have 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 (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to our designated agent at:
Jason Reuben, CEO
120 Broadway, Suite 300
Santa Monica, CA 90401
Notwithstanding the above, pursuant to Section 9 we will not be liable to you for our failure to remove the infringing material of third parties.
Notices. All notices required by or permitted to be given under this TOS will be in writing and delivered to the other party by any of the following methods: (i) hand delivery, (ii) certified U.S. mail, return receipt requested, postage prepaid, (iii) overnight courier, (iv) electronic mail. If you give notice to Yoyometrics, you must use the address shown on the Web Site. If Yoyometrics provides notice to you, Yoyometrics must use the contact information provided by you to Yoyometrics. All notices will be deemed received as follows: (i) if by hand-delivery, on the date of delivery, (ii) if delivery by U.S. Mail, on the date of receipt appearing on a return receipt card, (iii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iv) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. Each party agrees that any notice that it receives from the other party electronically satisfies any legal requirement that such communications be in writing. You hereby consent to receive communications from us, whether via telephone, facsimile, or addressed to the email address or postal address associated with your account or other email address that you provide to us for any reasonable purpose, including, but not limited to, verifying account information or improving the Web Site.
Indemnification. You agree to indemnify and hold us and our employees, representatives, agents, attorneys, affiliates, directors, employees, officers, managers and shareholders (the “Indemnified Parties”) harmless from any damage, loss, cost or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach of any provision of these TOS by you or (ii) arising from, related to, or connected with your use of the Web Site. If you are obligated to provide indemnification pursuant to this provision, we may, in our sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limitation of the foregoing, you may not settle, compromise or in any other manner dispose of any Claim without our express written consent.
DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.DISCLAIMER OF WARRANTIES. WE PROVIDE THE WEB SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT REPRESENT OR WARRANT THAT THE WEB SITE, ITS USE, OR ANY INFORMATION ON IT: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. WE MAKE NO WARRANTIES OTHER THAN THOSE THAT MAY BE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.SUPPORT. WE HAVE NO OBLIGATION TO MAINTAIN OR SUPPORT THE TECHNOLOGY OR THE SERVICE. WE AND OUR R LICENSORS MAY, WITHOUT FURTHER NOTICE TO YOU, PERIODICALLY ACCESS YOUR ACCOUNT REMOTELY TO UPDATE, MODIFY, ADD TO OR UPGRADE THE TECHNOLOGY. IN RARE INSTANCES, SUCH UPDATES, MODIFICATIONS, ADDITIONS OR UPGRADES MAY CAUSE DATA LOSS OR OTHER ISSUES. YOU ARE SOLELY RESPONSIBLE FOR REGULARLY BACKING UP THE DATA STORED IN YOUR ACCOUNT TO PREVENT THIS FROM OCCURRING.LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES. OUR LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR LOSS OF GOODWILL, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEB SITE OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY US. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THESE TOS OR THE WEB SITE, INCLUDING THE SERVICES, EXCEED $100.Force Majeure. We will not be liable for failing to perform under these TOS by the occurrence of any event beyond our reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to perform, fire, terrorism, natural disaster or war.Waiver of Class Action Rights. By agreeing to these TOS, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claims arising out of, relating to, or connected with these TOS must be asserted individually.Limitation of Actions. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Web Site, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
Termination. Termination By Yoyometrics. Yoyometrics will have the right in its sole discretion, for any reason or no reason at all, without notice or liability to you or any third party, to terminate your account or your access to the Web Site or Services, with or without cause. Such reasons may include, without limitation: (i) your breach of any part of this TOS, (ii) your violation of the rights of any third party; (iii) the invalidity of your credit card; (iv) your exceeding your credit card limit; (v) "chargeback" of a fee or other payment; or (vi) your account becoming inactive for an extended period of time.Termination By You. If you are registered with the Web Site, you may terminate your account for any reason at any time by providing notice to Yoyometrics of your intention to do so, subject to this TOS.Effect of Termination. If your account is terminated, Yoyometrics may, in its sole discretion, delete any web sites, files, graphics or other content or materials relating to your use of the Web Site or Services on Yoyometrics’s servers or otherwise in its possession and Yoyometrics will have no liability to you or any third party for doing so or for failing to do so. Following termination, you will not be permitted to use the Web Site or the Services. If your account or your access to the Web Site or Services is terminated, Yoyometrics reserves the right to exercise whatever means it deems necessary to prevent unauthorized access to the Web Site or the Services, including, but not limited to, technological barriers, IP mapping and direct contact with your Internet Service Provider. If your account is terminated, you must immediately pay Yoyometrics any fees that you owe it. Regardless of whether you have the right to access or use the Web Site or the Services, this TOS will survive indefinitely unless and until Yoyometrics chooses to terminate it.
UNITED STATES USE ONLY. The Web Site is controlled and operated by Yoyometrics from its offices in the State of California. We make no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to the Site should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California. You represent that you are a United States resident.
Choice of Law; Jurisdiction. These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California and the United States without regard for conflict of law principles. You hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in Los Angeles County, California, USA in all disputes arising out of or related to the use of the Web Site or Service.
Miscellaneous. These TOS contain the entire understanding of you and us regarding the use of the Web Site, and supersede all prior and contemporaneous agreements and understandings between you and us regarding the use of the Web Site. These TOS and all of your rights and obligations under them will not be assignable or transferable by you without our prior written consent. We are independent contractors, and no agency, partnership, joint venture, employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect.