Terms and Conditions | Yoyo Chinese
TERMS AND CONDITIONS AGREEMENT
PLEASE REVIEW THIS TERMS AND CONDITIONS AGREEMENT (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "CUSTOMER") AND YOYO CHINESE INC ("YOYO CHINESE" OR "WE") WITH RESPECT TO YOUR USE OF YOYO CHINESE'S ON DEMAND SERVICES WHICH INCLUDE DELIVERY OF SUCH LEARNING MATERIALS SUCH AS VIDEOS, AUDIOS AND TEXT MATERIALS (THE "SERVICES"). BY USING THE SERVICES, YOU AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU WILL NOT BE ALLOWED TO USE THE SERVICES.
2. Fees and Payment. In consideration for the Services to be provided by YOYO CHINESE, customer agrees to pay the subscription fees set forth in the "Plans & Pricing“ page (the "Subscription Fees"). YOYO CHINESE offers a full refund within the first 15 days of subscription/membership. Payments for Fees and reimbursements for expenses, if any, will be due immediately upon receipt of invoice; or may be pre-paid in advance; or otherwise may be paid pursuant to the terms set forth in the Sales Order. The Fees shall include all applicable foreign, federal, state and local taxes payable with respect to this Agreement.
3. Customer Information. YOYO CHINESE collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information and payment information (the "Customer Information"). YOYO CHINESE collects such information in order to provide the Services or the Professional Services, as the case may be, and related technical support. If you have provided your Customer Information, YOYO CHINESE may contact you for marketing purposes by various means, including, but not limited to, email or telephone. When you activate an YOYO CHINESE account, you expressly consent to receive marketing communications via email (at the email address you provided when you activated your account), telephone (at the number you provided when you activated your account), pre-recorded messages (at the number you provided when you activated your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods.
4. Data Disclosures. Except as otherwise set forth herein, YOYO CHINESE does not disclose, sell or rent Customer Information (the "Data"), without Customer's prior consent or unless required by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Customer expressly permits YOYO CHINESE to disclose the Data to: (i) YOYO CHINESE personnel who access and manage the Data in connection with the Services; (ii) service providers for purposes of providing functions or services related to the Services and YOYO CHINESE's customers' accounts; and (iii) YOYO CHINESE marketing partners through which Customer purchased the Services, if any. Except as otherwise set forth herein, YOYO CHINESE will not provide any Data to any third party without Customer's authorization and will use commercially reasonable efforts to prohibit any third party that receives any such Data from selling or redistributing such Data without Customer's authorization.
5. Passwords. In connection with YOYO CHINESE's provision of the Services, YOYO CHINESE will send to Customer's email address (as designated by Customer at the time an account is established), information such as user-IDs and/or passwords which will enable Customer to access the Services (the "Passwords"). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify YOYO CHINESE promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer's negligence or intentional misconduct. Any unauthorized use of the Passwords by Customer will constitute a material breach of this Agreement.
6. Third Party Products and Services. From time to time, certain third parties may offer products and services related to the Services (and the Professional Services, as applicable). Any subsequent business relationship, exchange of data or other interaction between Customer and such a third party, and/or any purchase, download or use by Customer of any product or service offered by such third party, is solely between Customer and such third party. Regardless of any recommendation by YOYO CHINESE or use of such third party products or services, YOYO CHINESE does not make any representations, warranties or guarantees with respect to any such third parties or any of their products or services. While YOYO CHINESE may rely on data or information provided or generated by such third party products and services in the course of providing the Services (and the Professional Services, as applicable), Customer hereby acknowledges that YOYO CHINESE specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agrees that YOYO CHINESE shall not be liable for any acts or omissions based on its reliance thereon. Accordingly, Customer hereby releases and holds harmless YOYO CHINESE from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising therefrom.
7. Open Source Software. Customer acknowledges and understands that certain open source code may be incorporated into the Service (the "Source Code"). Except as otherwise set forth in the applicable Source Code license therefor, the Source Code is provided "as is," and without representation or warranty of any kind. Customer hereby releases and holds harmless YOYO CHINESE from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising therefrom.
8. Disclaimer of Warranties. THE SERVICES (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOYO CHINESE AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, AGENTS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE "REPRESENTATIVES") DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES OR THE PROFESSIONAL SERVICES. THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES OR THE PROFESSIONAL SERVICES WILL MEET CUSTOMER'S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES OR THE PROFESSIONAL SERVICES.
9. Limitation of Liability. IN NO EVENT WILL YOYO CHINESE OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF YOYO CHINESE OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL YOYO CHINESE OR ANY REPRESENTATIVE'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICES, OR THE PROFESSIONAL SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO YOYO CHINESE FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM, LOSS, OR DAMAGE. No claim may be asserted by Customer against YOYO CHINESE more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or YOYO CHINESE's non-provision, of the Services (or the Professional Services as the case may be), Customer's sole and exclusive remedy shall be for YOYO CHINESE to use commercially reasonable efforts to repair or provide the Services (or the Professional Services as the case may be).
10. Indemnification. Customer agrees to indemnify, defend and hold harmless YOYO CHINESE, the Representatives, and its and their respective affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising from: (i) Customer's acts or omissions; (ii) Customer's violation of any applicable law; (iii) Customer's breach of any term or condition set forth in this Agreement (including in the Policies); (iv) Customer's breach of any of its representations or warranties set forth herein; and/or (v) Customer's infringement or misappropriation of any intellectual property rights or other rights of any person or entity.
11. Governing Law. This Agreement will be governed by the laws of the State of California as applied to agreements entered into and performed entirely within the State of California, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
12. Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in Los Angeles, California. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, YOYO CHINESE shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of California, to which jurisdiction, for such purpose, Customer hereby irrevocably consents.
13. Relationship. This Agreement does not create a partnership, joint venture or agency relationship between YOYO CHINESE and Customer. Customer does not have any right, power, or authority to act as a legal representative of YOYO CHINESE.
14. Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of YOYO CHINESE. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
15. Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
16. Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
17. Entire Agreement. This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between YOYO CHINESE and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the YOYO CHINESE and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement. At any time prior to, or during, its use of the Services, Customer may enter into certain other agreements with YOYO CHINESE which are subject, expressly or otherwise, to the terms and conditions set forth in this Agreement. In the event of any conflict between a term or condition set forth therein and herein, the term or condition which most favors YOYO CHINESE, as determined by YOYO CHINESE, shall govern.
18. No Waivers. YOYO CHINESE's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
19. Miscellaneous. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by YOYO CHINESE and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries. BY CHECKING THE "AGREE" BOX BELOW, CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, THAT IT UNDERSTANDS THE PROVISIONS OF THE AGREEMENT AND THAT IT AGREES TO BE BOUND TO AND BY THE TERMS AND CONDITIONS OF THE AGREEMENT.