Last Updated: June 18, 2021
Welcome, and thank you for your interest in Youpi Inc. (“Youpi,” “we,” or “us”) and our website at https://youpi.camera/, along with our related websites,
networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding
contract between you and Youpi regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY,
THE SERVICE, AND YOUPI’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY YOUPI AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 16, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU
AND YOUPI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that
may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury (See Section 16).
- Youpi Service Overview. Youpi provides a mobile application that enhances users’ own video recordings with animated bubbles, rich fonts and user generated sound effects. Users can post their videos for other users to browse or build a timeline of
memories with their videos. Users can connect with one another with mutual consent based on the mutual interests shared in videos posted to the Youpi Service.
- Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed
from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and
warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
- Accounts and Registration. To acc
ess most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, phone number, or other contact information. You agree that the information you
provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you may be asked to provide a password or other security credentials. You are solely responsible for maintaining the confidentiality of your account and security
credentials, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
- 4.1      Limited License. Subject to your complete and ongoing compliance with these Terms, Youpi grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to:
(a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control;
and (b) access and use the Service.
- 4.2      License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service;
or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
- 4.3      Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Youpi an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid,
royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
- Ownership; Proprietary Rights. The Service is owned and operated by Youpi. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the
Service (“Materials”) provided by Youpi are protected by intellectual property and other laws. All Materials included in the Service are the property of Youpi or its third party licensors. Except as expressly authorized by Youpi, you may not make use of the Materials.
Youpi reserves all rights to the Materials not granted expressly in these Terms.
- Third Party Terms
- 6.1      Third Party Services and Linked Websites. Youpi may provide tools through the Service that enable you to export information, including User Content (defined below), to third party services, including through features that allow you to link your account on
Youpi with an account on the third party service, such as Snapchat, Instagram, or TikTok, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Youpi may transfer that information to the applicable third party
service. Third party services are not under Youpi’s control, and, to the fullest extent permitted by law, Youpi is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Youpi’s
control, and Youpi is not responsible for their content.
- 6.2      Third Party Components. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”).
Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses. For information
about Third Party Components used in our Services visit our Credits Page (available at https://youpi.camera/credits.html).
- User Content
- 7.1      User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including messages, reviews, photos, video, images, folders, data, text, and any other works of
authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service. In the event that you delete your User Content from the Service, Youpi may, but is not obligated to retain copies of your deleted User
Content. Youpi may use incidental copies of Your Content retained on Youpi’s systems for internal business purposes.
- 7.2      Limited License Grant to Youpi of Your Private Content. By Posting User Content to a private area of the Service (e.g., creating, but not sharing, a timeline), you grant Youpi a worldwide, non-exclusive, royalty-free, fully paid right and license to host, store, transfer, display, perform,
reproduce, and modify such User Content for the full period of time that you maintain your account on the Services, to enable your use of the intended features and functionality of the Service with respect to that User Content, or to resolve any issues that may arise with the Services.
- 7.3      Limited License Grant to Youpi of Your Public Content. By Posting User Content to or via a public area Service (e.g., sharing a timeline or posting a video), you grant Youpi a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense
through multiple tiers) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content Posted or otherwise used on external services via the Service. You agree to pay all monies owing
to any person resulting from Posting your User Content, including from Youpi’s exercise of the license set forth in this Section.
- 7.4      Limited License Grant to Other Users of User Content. By Posting User Content to or via the Service to other users of the Service or to a public area of the Service (or by sharing User Content with other users through a private communication feature on the Service), you grant those users a
non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service. Deletion of User Content from a public area of the Services does not affect rights of Users in the copies of your User Content that other Users downloaded before deletion. Please be aware that Youpi cannot
control what other users or third parties who have access to such content do with such content once they have been exposed to it, so you should use common sense and good judgement in the decisions you make regarding what content to post to or through the Service.
- 7.5      Specific Rules for Photographs and Images. If you Post a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide
license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, Facebook, Instagram, and Twitter, but not to promote any third-party product, good, or service. The license contained in this Section does not permit the subject of any
photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
- 7.6      You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. You are solely responsible for your User Content
and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Youpi and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Youpi, the Service,
and these Terms;
- your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or
any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Youpi to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation
or other amounts or provide any attribution to any third parties; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, violent, or otherwise inappropriate.
- 7.7      User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post, and will not be in any way responsible or liable for User Content. Youpi may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our
sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy
you have or may have against Youpi with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
For clarity, Youpi does not permit infringing activities on the Service.
- 7.8      Monitoring Content. Youpi does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Youpi reserves the right to, and may from time to time, monitor any and
all information transmitted or received through the Service for operational and other purposes. If at any time Youpi chooses to monitor the content, Youpi still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded,
- 8.1      Text Messaging. Youpi and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include verification codes, operational messages about your use of the Service or other information. You may opt out of receiving marketing text messages at
any time by sending an email to email@example.com indicating that you no longer wish to receive marketing texts along with the phone number of the mobile device receiving the texts. You may continue to receive text messages for a short period while we process your request, and you may also receive text messages confirming the receipt
of your opt-out request. Operational text messages are essential to the Service. If you do not wish to receive operational text messages from us, do not use the Service. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive marketing text messages is not a condition of any purchase or use of
the Service. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
- 8.2      Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
- Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
- create or distribute, or encourage others to create or distribute, any content that could be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, violent or otherwise inappropriate;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Youpi;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another
user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 5) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 8 or assist or permit any person in engaging in any of the acts described in this Section 8.
- You may report any suspected violations of this Section 9 or any other of these Terms by emailing firstname.lastname@example.org. Youpi will take actions that Youpi, in its sole discretion, deems reasonable and appropriate.
- Intellectual Property Rights Protection
- 10.1      Respect of Third Party Rights. Youpi respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
- 10.2      DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material Posted on the Service, you may contact our Designated Agent at the following address:
- Legal Department (IP Notification)
- 112 Alley Way,
- Mountain View, CA 94040
- Phone: +1 213-309-6779
- Email: email@example.com
- 10.3      Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual
property right you own or control, then please promptly send a “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property right that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Your Notification of Claimed Infringement may be shared by Youpi with the user alleged to have infringed a right you own or control, and you consent to Youpi making such disclosure. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- 10.4      Repeat Infringers. Youpi’s policy is to: (a) remove or disable access to material that Youpi believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) remove any User Content uploaded to the Service by “repeat infringers.” Youpi considers a “repeat infringer” to be any User that has Posted User Content and for whom Youpi has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. Youpi reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
- 10.5      Counter Notification. If you receive a notification from Youpi that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Youpi with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Youpi’s Designated Agent through one of the methods identified in Section 10.2, and include substantially the following information:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Youpi may be found, and that you will accept service of process from the person who provided notification under Section 10.2 above or an agent of that person.
- A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid Counter Notification under the Copyright Act.
- 10.6      Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Youpi in response to a Notification of Claimed Infringement, then Youpi will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Youpi will replace the removed User Content or cease disabling access to it in 10 business days, and Youpi will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Youpi’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Youpi’s system or network.
- 10.7      False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of Youpi’s relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Youpi reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
- Modification of these Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in this Section, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
- Term, Termination and Modification of the Service
- 12.1      Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 12.2.
- 12.2      Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Youpi may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by: (a) deleting your account within the Service; or (b) contacting customer service at firstname.lastname@example.org.
- 12.3      Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Youpi any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 4.3, 5, 12.3, 14, 15, 16, 17 and 18 will survive.
- 12.4      Modification of the Service. Youpi reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Youpi will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
- Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Youpi and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Youpi Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
- Disclaimers; No Warranties
- 14.1       THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. YOUPI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. YOUPI DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND YOUPI DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
- 14.2       NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR YOUPI ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE YOUPI ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
- 14.3       THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Youpi does not disclaim any warranty or other right that Youpi is prohibited from disclaiming under applicable law.
- Limitation of Liability
- 15.1       TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE YOUPI ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY YOUPI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
- 15.2       EXCEPT AS PROVIDED IN SECTION 16.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE YOUPI ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO YOUPI FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
- 15.3       EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
- 16.1      Generally. In the interest of resolving disputes between you and Youpi in the most expedient and cost effective manner, and except as described in Section 16.2 and 16.3, you and Youpi agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND YOUPI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- 16.2      Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- 16.3      Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 within 30 days after the date that you agree to these Terms by sending a letter to Youpi, Attention: Legal Department – Arbitration Opt-Out, 112 Alley Way, Mountain View, CA 94040 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Youpi receives your Opt-Out Notice, this Section 16 will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- 16.4      Arbitrator. Any arbitration between you and Youpi will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Youpi. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- 16.5      Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Youpi’s address for Notice is: Youpi, 112 Alley Way, Mountain View, CA 94040. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Youpi may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Youpi must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Youpi in settlement of the dispute prior to the award, Youpi will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- 16.6      Fees. If you commence arbitration in accordance with these Terms, Youpi will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the county and state of your residence or billing address, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence or billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Youpi for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- 16.7      No Class Actions. YOU AND YOUPI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Youpi agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- 16.8      Modifications to this Arbitration Provision. If Youpi makes any future change to this arbitration provision, other than a change to Youpi’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Youpi’s address for Notice of Arbitration, in which case your account with Youpi will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- 16.9      Enforceability. If Section 16.7 or the entirety of this Section 16 is found to be unenforceable, or if Youpi receives an Opt-Out Notice from you, then the entirety of this Section 16 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 17.2 will govern any action arising out of or related to these Terms.
- 17.2      Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Youpi submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- 17.4      Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- 17.6      Contact Information. The Service is offered by Youpi, located at 112 Alley Way, Mountain View, CA 94040. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
- 17.7      Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 1-(800)-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- 17.8      No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
- 17.9      International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
- Notice Regarding Apple. This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Youpi only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.