Terms & Conditions
Last Modified on July 6, 2015
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
WYMP may update this ToU at any time, and WYMP will post a link to the updated version of this ToU on the Site and/or the App. You understand and agree that you will be deemed to have accepted the updated ToU if you use the Site, the App or the Service after the updated ToU is posted on the Site and/or the App. If at any point you do not agree to any portion of this ToU then in effect, you must immediately stop using the Site, the App and the Service.
Provision of the Service.
You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Site, the App and the Service. You acknowledge and agree that WYMP may make changes to the Site, the App and/or the Service at any time without notifying you in advance.
Termination of Service.
WYMP reserves the right to deny service to any person or entity at WYMP’s sole and absolute discretion. You acknowledge and agree that WYMP may stop providing the Site, the App and/or the Service or restrict your use of the Site, the App and/or the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU and/or if WYMP suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If WYMP disables your access to your account, you may be prevented from accessing the Service, your account details and/or any materials contained in your account.
Accounts and Security.
4.1. Account. To access certain aspects of the Service, you must have an account. You can create an account by completing the registration process. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to WYMP will be correct, accurate and up to date. 4.2. Fees. You agree to pay all applicable fees and taxes incurred by you or anyone using your account. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. WYMP may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting a link to an update of this ToU or posting such changes elsewhere on the Site and/or the App. If there is a dispute regarding your payment of fees, or the Service, WYMP shall have the right to terminate your account without prior notice. YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES. 4.3. Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password. You agree to notify WYMP immediately if you become aware of any unauthorized use of your password or of your account. 4.4. Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account with anyone. You may not disclose your password to anyone else. 4.5. Cancellation by You. You have the right to cancel your account at any time. You may cancel your account by sending an email to email@example.com. Once you cancel your account, your personal information will no longer be viewable by other users. However, content previously shared with other users may remain viewable by those users until they delete such content. 4.6. Termination by WYMP. WYMP may at any time terminate your account if: a. WYMP determines that you are (i) in breach of or otherwise acting inconsistently with this ToU or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to WYMP; b. WYMP determines it is required by law to terminate your account; or c. WYMP decides to stop providing the Service or critical portions of the Service. 4.7. Effect of Account Termination or Cancellation. If you voluntarily terminate your account or allow your account to lapse, you will be able to reactivate the account at any time through the account interface on the App and/or the Site. Accounts terminated by WYMP for any type of abuse including, without limitation, a violation of this ToU, may not be reactivated for any reason.
App Use Requirements.
5.1. Installation. In connection with the Service, you may install the App on one or more mobile devices that you own or control and that meet the minimum specifications provided by WYMP. 5.2. Updates. WYMP may require that you download and install updates to the App from time to time. You acknowledge and agree that WYMP may update the App with or without notifying you and add or remove features or functions to the App at any time in its sole discretion. You acknowledge and agree that WYMP has no obligation to make the App available to you, make any subsequent versions of the App available to you or to continue to support the App in any way. You acknowledge that your access to the App may not be continuous, features may change during your use of the App, and WYMP may terminate your access to the App or stop offering the App at any time. 5.3. Agreements. You acknowledge that you may only use the App in connection with the Service provided through the App in accordance with this Agreement and/or WYMP’s End-User License Agreement (if applicable) (the “EULA”). The requirements hereunder and this Agreement may change as the App and/or the Service evolve.
6.1. License Grant. Subject to the terms and conditions of this ToU, WYMP hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to download, install and use the Software (defined below). The Software may only be used in connection with the Service and in accordance with this ToU, the EULA and any rules, restrictions or documentation set forth by WYMP from time to time. 6.2. Updates. WYMP may require that you download and install updates to the App from time to time. You acknowledge and agree that WYMP may update the App with or without notifying you and add or remove features or functions to the App at any time in its sole discretion. You acknowledge and agree that WYMP has no obligation to make the App available to you, make any subsequent versions of the App available to you or to continue to support the App in any way. You acknowledge that your access to the App may not be continuous, features may change during your use of the App and WYMP may terminate your access to the App or stop offering the App at any time. 6.3. Third Party Software and Services. The Software may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements (including, without limitation, terms of service posted on third party websites), and you agree to look solely to the applicable third party and not to WYMP to enforce any of your rights in relation thereto. All modifications or enhancements to the Software and Service remain the sole property of WYMP. You understand that WYMP, in its sole discretion, may at any time for any reason without prior notice suspend or terminate any license hereunder and disable any Software you may already have accessed or installed. WYMP reserves the right to add or remove features or functions to the Software at any time in its sole discretion. When installed with a compatible email client, web browser or email service, the Software periodically communicates with WYMP servers. You acknowledge and agree that WYMP has no obligation to make available to you any subsequent versions of the Software.
Restrictions and Conditions of Use.
7.1. Use of the Service. WYMP permits you to view and use the Site, the App and the Service solely for your personal or limited commercial use, as applicable, consistent with the intended purpose of the Service. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Site, the App or the Service. 7.2. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site and/or the App provided by WYMP. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers) and you agree to comply with the instructions contained in any robots.txt file present on the App, the Site or the Service. 7.3. No Violation of Laws. You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Site, the App and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity). 7.4. Use Restrictions. You may not connect to or use the Site or the Service in any way that is not expressly permitted by this ToU. a. You may not: (i) remove any proprietary notices from the Site, the App or the Service or any copy of software provided to you by WYMP (“Software”); (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site. the App or the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of WYMP; or (iv) make any false, misleading or deceptive statement or representation regarding WYMP and/or the Site, the App or the Service. b. Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Site, the App and/or the Service (or any servers, systems or networks connected to the Site or the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Site, the App and/or the Service or any other person’s or entity’s use of the Site, the App and/or the Service (or any servers, systems or networks connected to the Site or the Service); (ii) attempt to gain unauthorized access to the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the Site, the App and/or the Service; (iii) use the App, the Site or the Service for any commercial purpose unless consistent with this ToU and the intended use of the same, or the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the App, the Site or the Service, unless you are specifically authorized to do so in a separate written agreement with WYMP; (iv) use the Site or the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (v) use the Site, the App or the Service to perform any unsolicited commercial communication not permitted by applicable law; or (vi) use the Site, the App or the Service to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty. c. Without limiting the foregoing, you agree that you will not use the App, the Site or the Service (i) for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for the use of the App, the Site or the Service or any manner not permitted by the licenses granted herein or (ii) for any other unlawful, prohibited, abnormal or unusual activity as determined by WYMP in its sole discretion. 7.5. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email addresses or mobile phone numbers of other account holders or other software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Site, the App or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site, the App or the Service. 7.6. Violation of this ToU. You acknowledge and agree that you are solely responsible, and WYMP has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. WYMP may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 7 or any other terms of this ToU.
8.1. Links from the Site. The Site may contain links to websites operated by other parties. WYMP provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of WYMP and WYMP is not responsible for the content available on the other websites. Such links do not imply WYMP’s endorsement of information or material on any other website and WYMP disclaims all liability with regard to your access to and use of such linked websites. 8.2. Links to the Site. Unless otherwise set forth in a written agreement between you and WYMP, you must adhere to WYMP’s linking policy as follows: (a) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with WYMP’s and/or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with WYMP; and (c) when selected by a user, the link to the Site must display the Site on full-screen and not within a “frame” on the linking Site. WYMP reserves the right to revoke its consent to the link at any time and in its sole discretion.
9.1. Trademarks. The WYMP name and logo are trademarks and service marks of WYMP. Unless permitted in a separate written agreement with WYMP, you do not have the right to use any of WYMP’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws. 9.2. Ownership. You acknowledge and agree that WYMP, or its licensors, owns all right, title and interest in and to the Site, the App and the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Site, the App and the Service are protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that WYMP has designated as confidential and you agree not to disclose such information without WYMP’s prior written consent. 9.3. Copyright Agent. WYMP respects the intellectual property rights of others, and requires that the people who use the App, the Site and the Service do the same. WYMP maintains a policy of terminating users of the App, the Site and/or the Service who engage in repeated infringing conduct. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below: • Your address, telephone number, and email address; • A description of the copyrighted work that you claim has been infringed; • A description of where the alleged infringing material is located; • A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law; • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Copyright Agent: Legal Department WYMP, Inc. 39120 Argonaut Way, Suite 115 Fremont, CA 94538 Email: firstname.lastname@example.org
The Service includes features that operate in conjunction with certain third party social networking websites that you visit such as Facebook and Twitter (“Social Network Features”). While your use of the Social Network Features is governed by this ToU, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. It is impossible for WYMP to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites. You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and of your ability to access these third party websites and, in some cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT WYMP WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
The Site, the App and the Service are operated by WYMP in the United States. If you choose to access the Site, the App and/or the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
13.1. Content of Communications. WYMP is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service. By using the Service, you agree that any content that you submit may be viewable by other users of the Site and/or the Service. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. The content of communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do not submit material that is (a) copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner; (b) a falsehood or misrepresentation; (c) offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; (d) an advertisement or solicitation of business; or (e) impersonating another person. WYMP may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its customers, or otherwise enforce the terms of this ToU. Further, WYMP may in its sole discretion remove such content and/or terminate this ToU and your Account if you use any content that is in breach of this ToU. 13.2.WYMP does not claim ownership of any communications or materials you submit or make available through the Site, the App and/or the Service (“Submitted Content”) via forums, blogs, email functions, chat functions, video hosting, sharing and/or publishing or any other function on the Site and/or Service which allows you to post, upload, edit, host, share and/or publish content. With respect to such Submitted Content, you grant WYMP a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of such Submitted Content in connection with the Service and WYMP’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each user of the Service a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You may take down any Submitted Content at any time; however, you acknowledge and agree, that WYMP may still have access to such Submitted Content and that the above licenses granted by you to WYMP will remain in effect despite your removal of such Submitted Content from the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 13.2. 13.3. You acknowledge and agree that: (a) by using the Site or Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (b) you are solely responsible for, and WYMP has no responsibility to you or any third party for any Submitted Content that you create, submit, post or publish on the Site or Service; (c) WYMP does not guarantee any confidentiality with respect to Submitted Content, whether or not they are published; and (d) WYMP is not responsible for any Submitted Content that you may have access to through your use of the Site or Service and all Submitted Content is the responsibility of the person from whom such Submitted Content originated. You acknowledge and agree that (i) WYMP has no control over and is not responsible for the use of Submitted Content by a user, including any user that has uploaded such Submitted Content to such user’s personal device; and (ii) WYMP may not be able to remove certain Submitted Content that is uploaded onto another user’s device. WYMP does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content. 13.4. You acknowledge that WYMP has the right to pre-screen any Submitted Content, but no obligation to do so. At WYMP’s sole discretion, any Submitted Content may be included in the Service in whole or in part in a modified form. In addition, WYMP and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Site, the App and/or the Service that violates this TOU or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property. 13.5. You acknowledge that the Submitted Content is your sole responsibility. You are entirely responsible for the Submitted Content and agree, under no circumstances, will WYMP be liable in any way for Submitted Content, including, but not limited to, for any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
Each party providing an advertisement or sponsored posting on the Site and/or the App (the “Advertiser”) represents and warrants that (a) the Advertiser has full power and authority to enter into transactions and market, advertise, distribute, promote, reproduce, offer for sale and sell the properties and to use all marks, names and designs used in connection with the foregoing; and (b) the property information, documentation and specifications that the Advertiser has provided to WYMP is accurate, true, correct, complete and not misleading.
WYMP shall not be responsible for monitoring whether the advertisements or sponsored postings by Advertisers are accurate and does not guarantee that such advertisements or promotions are being honored.
The Site, the App and the Service are not directed toward children under 13 years of age and WYMP does not knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personal information about yourself to WYMP.
DISCLAIMER OF WARRANTIES.
17.1. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE, THE APP AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SITE, THE APP AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. 17.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WYMP EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. 17.3. WYMP MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE, THE APP OR THE SERVICE. 17.4. WYMP DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SITE, THE APP AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SITE, THE APP OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SITE, THE APP OR THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SITE, THE APP OR THE SERVICE WILL BE CORRECTED; OR (e) THE SITE, THE APP OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 17.5. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL. Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.
18.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WYMP, AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR: a. ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE APP AND/OR THE SERVICE, EVEN IF WYMP AND/OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES; b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR c. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SITE, THE APP OR THE SERVICE. 18.2. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF WYMP OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100). Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of WYMP and the Related Parties shall be limited to the fullest extent permitted by law.
You agree to defend, indemnify and hold WYMP and the Related Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Site, the App and/or the Service; or (b) your breach of this ToU or any other policies that WYMP may issue for the Site, the App and/or the Service from time to time.
Governing Law; Jurisdiction.
This ToU is governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and WYMP agree that, except as otherwise provided in Section 21 below, the state and federal courts located in the County of Alameda, California will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Site or the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, WYMP shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
21.1. Arbitration Procedures. You and WYMP agree that, except as provided in Section 21.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 21 and the JAMS Rules, the terms in this Section 21 will control and prevail. Except as otherwise set forth in Section 21.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and WYMP will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and WYMP may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND WYMP WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. 21.2. Location. The arbitration will take place in Fremont, California, unless the parties agree to video, phone and/or internet connection appearances. 21.3. Limitations. You and WYMP agree that any arbitration shall be limited to the Claim between WYMP and you individually. YOU AND WYMP AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION. 21.4. Exceptions to Arbitration. You and WYMP agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of WYMP’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration. 21.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules. 21.6. Severability. You and WYMP agree that if any portion this Section 21 is found illegal or unenforceable (except any portion of Section 21.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 21.4 is found to be illegal or unenforceable then neither you nor WYMP will elect to arbitrate any Claim falling within that portion of Section 21.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Alameda, California, United States of America, and you and WYMP agree to submit to the personal jurisdiction of that court.
22.1. ToU Revisions. This ToU may only be revised in a writing signed by WYMP, or published by WYMP on the Site. 22.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and WYMP as a result of this ToU or your use of the Site or the Service. 22.3. Assignment. WYMP may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without WYMP’s prior written consent, and any attempted unauthorized assignment by you shall be null and void. 22.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect. 22.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, except as otherwise provided in Section 21.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation. 22.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by WYMP of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time. 22.7. Notices. All notices given by you or required under this ToU shall be in writing and sent to email@example.com. 22.8. U.S. Government Rights. If you are, or are entering into this ToU on behalf of, any agency or instrumentality of the United States Government, the Software is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Software are governed by the terms of this ToU. 22.9. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Software, the Site or the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls. 22.10. Equitable Remedies. You acknowledge and agree that WYMP would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws. 22.11. Entire Agreement. This ToU, including the documents referenced herein, constitutes the entire agreement between you and WYMP with respect to the Site, the App and the Service and supersedes any and all prior agreements between you and WYMP relating to the Site, the App and/or the Service.