Yellow User Agreement
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND WISH FOR YELLOW, LLC.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. SCOPE AND INTENT
Throughout this Agreement, the following terms will have the meanings set forth below:
(a) "Yellow," "we," "us," "our" and "ours" refer to Wish For Yellow, LLC.
(b) "You," "your" and"yours" refer to each individual who has registered on this Site or who uses the Site or the Services.
This Agreement between you and Yellow governs the use of Yellow Services. These Services are accessible to registered users through the use of a personal computer and the Internet. Our fitness services (hereinafter “Fitness Services”) allow qualified users to (i) create their own workout or exercise programs or (ii) take advantage of a predefined workout or exercise program, a customized workout or exercise program created by the Fitness Services based on their preferences, and/or a customized workout or exercise program created by a personal trainer or other user, covering strength-building and/or cardiovascular exercises.. When you use any of the Services you agree to the terms and conditions of this Agreement. You will also be bound by the terms and conditions of this Agreement with respect to your access or use of this Site and any further upgrade, modification, addition or change to this Site. If you do not agree, then do not register and do not use the Site or the Services.
Your use of, or participation in, certain Services may be subject to additional terms, and such terms will be either listed in this Agreement or will be presented to you for your acceptance when you sign up to use such Services. You agree to be bound by and comply with such other written requirements as we may furnish to you in connection with any services or products that you may access through the Services, including, but not limited to the Assumption of Risk, Waiver of Liability, Covenant Not to Sue, and Indemnification Agreement (hereinafter “Participation Agreement”) required for use of our Fitness Services.
Your use of the Fitness Services is conditioned upon your full and accurate completion of our pre-exercise health screening form (“Pre-Exercise Health Screening Form”). Your access to the Fitness Services may also be subject to additional requirements or conditions (e.g. your physician’s written approval of your use of the Fitness Services) or denied altogether depending upon the results of your pre-exercise health screening.
PERMISSION TO USE THE YELLOW SITE AND SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
Our Web Applications and Yellow Content are hosted by our trusted third-party hosting service provider (the “Hosting Provider”) and are made accessible by Yellow to you via Internet connections pursuant to the terms and conditions of this Agreement.
2. USER REGISTRATION AND USER ACCOUNT
Yellow is offering the Services solely for the benefit of the person in whose name a user account is registered through the Site (the "User" or "you") and not for the benefit of any third party. You agree that you will supply accurate and complete information to Yellow when requested and that you will update that information promptly after it changes.
A. USER ELIGIBILITY REQUIREMENTS
By registering as a User you represent and warrant to Yellow that: (i) You are at least 18 years old; (ii) You are of legal age in the jurisdiction in which you reside and that you have the legal capacity and authority to enter into this Agreement; (iii) You are a legal resident of the United States; and (iv) You intend to use the Services for personal, non-commercial purposes.
We do not offer user registration or Fitness Services to businesses, and registration by businesses is not permitted. If you are the sole proprietor of a business or the authorized representative of a business entity you may request registration of your business as a Commercial User by contacting us at: email@example.com.
If you cease to meet the eligibility requirements at any time, you must immediately cancel your registration and cease using the Services.
Individuals prohibited by Yellow from using the Service may not register as a User, and doing so and may result in civil or criminal liability.
We reserve the right to refuse registration or service to anyone for any reason, or for no reason, at any time.
B. USER REGISTRATION & USER ACCOUNT
When registering on our Site you must provide your full legal name, a valid e-mail address, and all other information (if any) requested in order to complete the registration process.
Each User is permitted to create and register one (1) user account through which access to the Site and Services will be provided (“User Account”). Each User Account may only be used for the benefit of the person in whose name the User Account is registered and not for the benefit of any third party or for business or commercial purposes.
You will be responsible for all use of the User Account registered in connection with your registration, including all fees or charges incurred by or through your User Account. You may cancel any User Account registered under your registration at any time by following the instructions on the Site.
YELLOW MAY SUSPEND OR TERMINATE YOUR USER ACCOUNT AT ANY TIME FOR ANY REASON, OR FOR NO REASON, WITH OR WITHOUT NOTICE TO YOU. For purposes of explanation and not limitation, user account suspensions and terminations will occur as the result of violations of the use restrictions or content restrictions in this Agreement. User Accounts terminated by us for any violation of this Agreement will not be reactivated for any reason. Without limiting the generality of the foregoing, the access of any User will be terminated as a result of the failure of a User to consent to any update or amendment to this Agreement.
C. USERNAME AND PASSWORD
During the User Account creation process, you may be required to select a unique username and a password (collectively referred to hereunder as "Login Information"), and you may not share the account or the Login Information with anyone other than as expressly set forth herein. You are responsible for maintaining the confidentiality of the Login Information and security of your User Account. You will be responsible for all uses of the Login Information whether or not authorized by you. In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Yellow by emailing us at: security@Yellow.com. Login Information may only be used by one person. A single User Account shared by multiple persons is not permitted. You are responsible for maintaining the security of your account and password. Yellow cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. We assume no responsibility to discover, audit or report to you any possible breach of security of your User Account, or unauthorized disclosure or use of Login Information. You acknowledge and agree that we are not responsible for transactions performed by unauthorized individuals through your User Account with valid Login Information.
You will not provide inaccurate, misleading or false information to Yellow or to any other User. If information you provided to Yellow subsequently becomes inaccurate, misleading or false, you will promptly notify Yellow of such change. If information you provided to other Yellow User(s) subsequently becomes inaccurate, misleading or false, you will promptly notify such User(s) of such change. Any fraudulent, abusive or unauthorized activity may be grounds for termination of your right to Services or to access the Site.
3. PREMIUM SERVICES
If you purchase any services that we offer for a fee, either on a one-time or subscription basis (“Premium Services”), you agree that we may store your payment card information. You also acknowledge that our Premium Services are subject to this Agreement and any additional terms related to the provision of the Premium Service.
You agree to pay the applicable fees (including, without limitation, periodic subscription fees) for all Premium Services requested or used by you as they become due, and to reimburse us for all collection costs for any overdue amounts. Subscription fees and charges for Premium Services will be posted as part of the ordering process for this Site and are set out in our Schedule of Premium Service Charges and Fees. Your obligation to pay subscription fees continues through the end of the subscription period during which you cancel your subscription. You may cancel your registration or subscription(s) by emailing us at: firstname.lastname@example.org. Our refund policy is explained here.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes on the income of Yellow.
We may revise the pricing for the Services offered through the Site, including without limitation subscription plans at any time. We'll notify you at least thirty (30) days in advance if we change the price of your subscription or any Services. If you don't agree to these changes, you must cancel your subscription and stop using the Service(s) before the changes take place. If you cancel a subscription, your subscription ends at the end of the period in which you canceled.
Your subscriptions will automatically renew, unless you cancel your subscription prior to the renewal date. We’ll notify you of your subscription renewal at least thirty (30) days before your renewal date. We will also notify you at least thirty (30) days before your renewal date, if we change the price of your subscription. If you don’t agree to the revised price, you must cancel your subscription prior to the renewal date and stop using the Premium Service. If you cancel your subscription, your subscription ends at the end of the month in which you cancel or the renewal date (whichever is earlier).
4. THIS SITE DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS OR TREATMENT
Yellow is NOT a healthcare provider (as defined in 45 C.F.R. § 160.103) and does not provide medical or other health services (as defined in 42 U.S.C. 1395x(s)). Our Services are not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified healthcare provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on this Site. Reliance on any fitness information or exercise recommendations provided by Yellow, Yellow employees, or others appearing on the Site is solely at your own risk. We recommend that you consult your physician or a medical professional before beginning any exercise, physical fitness or training program, especially if you have been inactive for a few years, suffer from obesity, smoke or have arthritis, high blood pressure, high cholesterol, or any other health problems or conditions. If you are being treated by a physician, physical therapist or other healthcare professional for a medical condition, you agree to consult with your healthcare provider before using our Fitness Services.
5. LICENSE TO USE YELLOW SERVICES
Our Web Applications and Yellow Content are licensed and not sold to you. Our Web Applications and Yellow Content were developed by and are owned by Yellow and/or its licensors. During the term of your registration, we grant you a personal, revocable, non-exclusive, non-transferable, non-sub-licensable, non-assignable, non-resalable and limited license to access and use our Web Applications and Yellow Content within the United States and in accordance with the terms of this Agreement. Said license shall expire immediately upon the expiration or termination (however so occasioned) of your user registration. Following the expiration or termination of this license (a) you will have no further right to access or to use the Services and (b) your access to the Services may be disabled without notice to you.
This license does not confer upon you any right to receive a copy of the Web Applications or to install the Web Applications, or to have the Web Applications installed, on any computer, or to access the Web Applications on any server other than on the servers owned and operated by Yellow and/or its Hosting Provider. Subscriber shall respect the Hosting Provider’s use, privacy and security requirements as updated by Hosting Provider from time to time. The Hosting Provider’s Acceptable Use Policy may be found at the following web address: http://aws.amazon.com/aup/
6. USE RESTRICTIONS & LICENSE LIMITATIONS
The license granted to you in Section 5 above is subject to the limitations set forth below (collectively, the “License Limitations”). Any use of the Services in violation of the License Limitations will be regarded as an infringement of Yellow’s copyrights in and to the Services.
Access to and use of the Services is limited solely to validly registered Users. To use the Services you must have (i) an Internet access device (e.g. a computer) with service through an Internet service provider, (ii) a web browser, and (iii) a valid User Account.
You agree to use the Services only for purposes that are permitted by (i) the terms of this Agreement and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
Users may use this Site and the Services solely for personal, non-commercial purposes.
You agree not to:
(a) Access (or attempt to access) any of the Services or the Site by any means other than through the interface that is provided by Yellow;
(b) Access (or attempt to access) the Site or any of the Services through any automated means (including use of scripts or web crawlers);
(c) Create derivative works of the Web Applications or Yellow Content;
(d) Make the Services available to any third party by any loan, rental, lease, service bureau, sub-license, or any other arrangement;
(e) "Frame" or "mirror" the Services on any server or other Internet-enabled device;
(f) Reproduce, duplicate, copy, reverse engineer, decompile, disassemble, modify, adapt, or translate the Services;
(g) Distribute, publish, sell, trade, or otherwise transfer the Services to any third party or make the Services available to any third party without Yellow’s prior written approval;
(h) Use the Services outside the United States or permit the Services to be used outside the United States;
(i) Use the Services to operate a business that competes with Yellow;
(j) Use the Services to produce a product or service using the same (or similar) features, functions or graphics as the Services;
(k) Copy any features, functions or graphics of the Services;
(l) Use the Services for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any service, product or software offered by Yellow;
(m) Use any proprietary information or interfaces of Yellow or other intellectual property of Yellow in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Services;
(n) Use the Services in a manner or environment, or for any purpose for which Yellow did not design or license the Services, or in violation of Yellow’s recommendations or instructions on use;
(o) Use the Services in a manner that violates any applicable law;
(p) Violate or attempt to violate the security of the Services or use the Services to violate the security of any web site by any method, including, without limitation, (i) accessing data not owned by, or intended for use by you or logging into a server or account that you are not authorized to access, (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (iii) attempting to interfere with service to any other user(s) of the Services, including, without limitation, by submitting a virus to the Services, overloading, "flooding," "spamming," "mail bombing," attempting “denial of service” attacks, or "crashing," or allow any third party to have access to the Services.
7. SERVICE CHANGES AND DISCONTINUATION
We may modify or discontinue the Services or delete features at any time for any reason with or without notice to you. A particular service or application may be a pre-release version—a beta, for example—and may not function correctly or in the way a final version might function. We may substantially change the final version or decide not to release a final version. We may also from time to time make available additional or new features to the Services, and additional terms and conditions may apply. We reserve the right to charge a fee for the use of any additional services or features that we may introduce.
8. USER CONTENT
A. YOUR CONTENT
"User Content" means any files, communications, images, sounds, text, video clips, directories, databases or listings and all the material and information that you upload onto the Site, except as otherwise provided below. “User Content” does NOT include: (i) Any exercise program, workout or routine, or collection of programs, workouts or routines (hereinafter collectively “Personal Exercise Programs” that you create, customize, personalize or otherwise modify using the Services or on the Site; or (ii) Any Feedback (as hereinafter defined) that you submit to us; or (iii) Any non-personally identifiable biometric data that you provide; or (iv) Any non-personally identifiable data generated by our Web-Applications; or (v) Any Unsolicited Submissions (as hereinafter defined).
You must be a registered User with a valid User Account in order to upload User Content onto the Site.
You are responsible for all User Content posted and activity that occurs through or under your User account. You assume all liability regarding your User Content.
Except for material that we license to you, we do not claim ownership of User Content. Your content remains your content. We do not control, verify, or endorse the content that you or others make available on the Site or through the Services.
You control who may access your User Content. If you share User Content in public areas of the Site or in shared areas available to other Users whom you have chosen, then you agree that anyone with whom you have shared your User Content may use that User Content. When you give others access to your User Content on the Site or through the Services, you grant them a free, nonexclusive permission to use, reproduce, distribute, display, transmit, and communicate to the public the User Content that you have made accessible. If you don't want others to have those rights, then do not use the Site or Services to share your User Content.
You hereby grant Yellow and its affiliates an nonexclusive, royalty-free, perpetual, irrevocable and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display your User Content throughout the world in any media to the extent necessary to provide the Services. You agree that Yellow is free to use any ideas, concepts, know-how that you provide to Yellow. We will not pay you for this right or for your User Content. You represent and warrant that you have all the rights necessary for you to grant the rights in this section and the use of your User Content does not violate any law.
You understand that the Services can be used for the transmission of your User Content, and that during processing, your User Content may be transferred unencrypted over the internet, and you consent to such unencrypted transmission.
User Content may be protected by copyright. You agree not to share User Content on the Site or through the Services in a way that infringes the copyrights, other intellectual property rights, or privacy rights of others.
We do not pre-screen User Content. We may refuse to publish your User Content for any or no reason. We have no obligation to monitor posts to this site or to exercise any editorial control over such posts. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any User Content. We may remove your User Content from the Site at any time if you violate the terms of this Agreement or if we cancel or suspend your registration.
You are solely responsible for backing up the User Content that you store on the Site. If your registration is suspended or canceled, we may permanently delete your User Content from our servers. We have no obligation to return User Content to you after your registration is suspended or canceled. User Content that is deleted may be irretrievable.
B. THE CONTENT OF OTHER USERS
Although we prohibit certain conduct and content on the Site, you agree that we are not responsible for the content posted on the Site by other Users and that you may be exposed to content which you may find objectionable. You agree to use the Site and Services at your own risk.
Any content downloaded or otherwise obtained through the Site is done at each User's sole discretion and risk and each User is solely responsible for any damage to its computer system or loss of data that results from the download or use of any such material.
9. USER CONTENT RESTRICTIONS
You represent, warrant and agree that you will not contribute any User Content that:
(a) Infringes, violates or otherwise interferes with any copyright or trademark of another party;
(b) Reveals any trade secret, unless User owns the trade secret or has the owner's permission to post it;
(c) Infringes any intellectual property right of another or on the privacy or publicity rights of another;
(d) Contains video, audio photographs, or images of another person without that person’s permission;
(e) Disseminates another person’s personal information without that person’s permission, or collects or solicits another person’s personal information for unlawful purposes;
(f) Is intended to interfere with others’ enjoyment of the Site or Services;
(g) Impersonates, or otherwise misrepresents User’s affiliation, connection or association with, any person or entity;
(h) Solicits business from any Users;
(i) Uses scripts, bots or other automated technology to access the Site or Services;
(j) Uses the Site or Services for chain letters, junk mail or spam emails, spimming, phishing, trolling, or similar activities;
(k) Contains any computer viruses, time bombs, Trojan horses, worms, or other harmful, disruptive, or destructive components, devices, codes or other computer programing routine or engine that has the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information or that attempts to automatically gather information from the screen (screen scraping);
(l) Is obscene or contains or refers to any pornography or sex-related merchandising or any other content or otherwise promotes sexually explicit materials or is otherwise harmful to minors;
(m) Intends to defraud, swindle or deceive other Users;
(n) Is libelous, defamatory, abusive, indecent, threatening, or harassing;
(o) Violates any applicable law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, or false advertising);
(p) Promotes or enables illegal or unlawful activities, such as instructions on how to make or buy illegal weapons or drugs, violate a person’s privacy, harm or harass another person, use another person’s identity, or create computer viruses; or
(q) Contains hyper-links to internet sites or files that contain content that falls within the descriptions set forth above.
10. CANCELLATION OF A SUBSCRIPTION OR REGISTRATION BY USER
You may cancel your registration or a subscription at any time and for any reason. You can cancel your subscription(s) or your registration contacting us via phone or email (email@example.com) or in the application bar at the bottom of your screen. You are responsible for properly canceling your subscription(s) or registration. . Upon cancellation of your registration, all of your subscriptions will automatically be cancelled and all your User Content may be deleted from the Site. We cannot guarantee that your User Content can be recovered once your registration is cancelled. If you cancel a subscription before the end of your current paid-up subscription month, your cancellation will immediately take effect and you will not be charged again. You will not receive a refund for the unused portion of any month in which you cancel your subscription.
11. SUSPENSION OR CANCELLATION OF SUBSCRIPTION AND/OR REGISTRATION BY YELLOW
We may cancel or suspend your registration and/or your subscription(s) and your access to the Services at any time without notice and for any reason or for no reason. Reasons for cancellation may include that we stop providing the Service in your region, or that you violate any of the terms of conditions of this Agreement, or that you fail to pay fees that you owe us. If your registration is canceled, your right to use the Services stops immediately. If a subscription is cancelled, your right to use the Premium Services connected with that subscription will stop immediately.
If we cancel your registration or a subscription without cause, we'll refund to you on a pro-rata basis any payments that you have made based on the portion of your subscription that would otherwise remain.
If we cancel your registration or subscription for cause before the end of your current paid-up subscription month, cancellation will immediately take effect and you will not receive a refund for the unused portion of any cancelled subscription.
Upon cancellation of your registration, all of your User Content may be immediately deleted from the Site and from our servers. Your User Content may not be recoverable once your registration is cancelled.
12. LINKS TO THIRD PARTY WEBSITES
This Site may contain links to other websites that are maintained by third parties. These links are provided for your convenience only. These sites are not under our control. Use of these links will cause you to leave this Site. We are not responsible or liable for the content, products or services offered on other sites. We make no representation or warranty regarding any other site or the content, information, products or services offered through or appearing on other sites. We neither sponsor nor endorse the owners or operators of other sites or the content, products, or services they offer. Use of third-party websites is entirely at your own risk. Your use of any third-party sites is subject to the terms and policies applicable to the sites that you access.
13. TRANSACTIONS WITH ADVERTISERS
You may enter into correspondence or transactions with, or participate in promotions of, advertisers who promote their products, services or content on this Site. You acknowledge and agree that any such correspondence, transaction or participation, including the delivery of and the payment for products, services or content, is solely between you and any such advertiser and is entirely at your own risk.
14. TRANSACTIONS WITH THIRD-PARTY FITNESS SERVICE PROVIDERS
Through the Site, Yellow provides Users with the opportunity to purchase services from gyms and personal trainers registered with the Site (“Third-Party Fitness Service Providers”). You are solely responsible for your dealings with Third-Party Fitness Service Providers and any other third parties (including advertisers) who use the Site. Your purchase or use of any services offered by Third-Party Fitness Service Providers is subject to the terms and conditions offered by such Third-Party Fitness Service Providers. We make no representation or warranty regarding any Third-Party Fitness Service Provider or the content, information, products or services offered by Third-Party Fitness Service Providers. You acknowledge that you are fully assuming the risks of all communications and transactions with Third-party Fitness Service Providers. These risks include, but are not limited to: (i) The risk of dealing with persons acting under false pretenses; (ii) Misrepresentations of professional qualifications, certifications, products and services; (iii) The risk of purchasing services from service providers that lack required certifications, regulatory approvals or which are otherwise non-compliant with any applicable law or regulations; and (iv) Fraudulent schemes.
15. COMMUNICATIONS DECENCY ACT NOTICE
This Site is a provider of "interactive computer services" under the Communications Decency Act, 47 U.S.C. Section 230. Our liability for defamation and other claims arising out of any User postings to this Site is limited as described therein. We are not responsible for content or any other information posted to the Site by other Users or any other third parties. We do not warrant the accuracy of such postings or exercise any editorial or other control over such posts. We have no responsibility or liability for investigating or verifying the accuracy of any content or any other information posted by Users or other third parties.
16. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE
If you believe that your copyrighted work has been copied in a way that amounts to copyright infringement and is accessible on this Site, please notify Yellow’s copyright agent, as set forth under the Digital Millennium Copyright Act, 17 U.S.C. Section 512 ("DMCA"). According to the DMCA, you must provide the following information in writing:
(a) A description of the copyrighted work that you claim is being infringed;
(b) A description of the material that is claimed to be infringing and where it is located on the Site;
(c) Information reasonably sufficient to allow us to contact you, including your name, address, telephone number and email address;
(d) A statement by you that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, or its agent, or by law;
(e) A statement by you, under penalty of perjury, that the information in your notification to us is accurate and that you are the copyright owner or are authorized to act on behalf of the owner; and
(f) A physical or electronic signature of the copyright owner or a person authorized to act on behalf of the copyright owner.
All copyright notices should be addressed to our Copyright Agent:
Wish For Yellow, LLC
4279 Roswell Road, STE 208 #110, Atlanta, Georgia 30342
firstname.lastname@example.org (Only copyright notices will be accepted at this email address. All other communications will be deleted)
17. COMPLIANCE WITH LAWS
You acknowledge that the Services may be subject to the customs and export control laws and regulations of the United States and may also be subject to the customs, export, import or other laws and regulations of the country in which you use the Services. You acknowledge that it is your responsibility to comply with those laws and regulations and you agree to fully abide by those laws and regulations.
You represent that: (i) You are not located in, under the control of, or a national or resident of any country that the United States has embargoed (including without limitation Burma, Cuba, Iran, North Korea, Sudan, and Syria); (ii) You have not been identified as a Specially Designated National by the U.S. Treasury Department; and (iii) You have not been placed on the U.S. Commerce Department’s Denied Persons List. You can find more information about the Specially Designated National list at: http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx. You can find more information about the Denied Persons List at: http://www.bis.doc.gov/dpl/default.shtm.
18. MODIFICATIONS, ALTERATIONS, AND AMENDMENTS TO THIS AGREEMENT
This Agreement, any applicable fees and charges may be changed, altered or amended by Yellow at any time and from time to time. In such event, Yellow will provide notice to you. Any use of the Services after the effective date of any change in terms will constitute your agreement to such change(s). In addition, Yellow may, from time to time, revise or update the Services and/or the Site.
19. ELECTRONIC COMMUNICATIONS
So that we may provide you with the Services, you agree that we shall electronically provide to you information related to the Services. You must have the ability to print or download the information. You do not have the option to receive these communications in a paper format. Certain notices, including changes in service, charges or fees, changes in terms, notices concerning amendments to the Yellow User Agreement, account suspension notices, termination notices, cancellation notices, additions of new services, will be delivered via electronic means. You consent to receive these and all legally required notifications via electronic means. You may download or print the notices from your computer. You may withdraw your consent to receiving future notices in electronic form, but if you do, we will immediately terminate your registration.
20. COMMUNICATIONS FROM YELLOW
We will only send information concerning Yellow Services to the street address and/or email address you have designated to us as your primary address. This is done as a security procedure to help ensure the confidentiality of your relationship with Yellow. No Yellow employee or agent will contact you via email or phone requesting your Yellow password, user ID or any account information.
21. RECORDING OF INFORMATION AND DISCLOSURE TO THIRD PARTIES
A. The information you enter through your subscription or registration or user account registration and other communications with us may be recorded. We may disclose information about your accounts with us, your transactions with us or your payments to us to third parties and hereby authorize those third parties to disclose similar information to us:
(a) Where it is necessary for completing a transaction or effecting a payment;
(b) Where required by a federal, state, or local law or regulation to do so;
(c) In response to a subpoena or if we are ordered by a court to do so;
(d) In the investigation or prosecution of alleged fraudulent activity concerning your account;
(e) If you give us your permission; or
Any personal information which we may collect on this site will be stored and processed in our servers located in the United States or other countries. You further consent to the transmission, transfer or processing of such information to, or through, any country in the world, as we deem necessary or appropriate (including to countries outside the EEA).
B. USE OF NON-PERSONALLY IDENTIFIABLE INFORMATION
You agree that we may make full and unrestricted use of non-personally identifiable information. For example, we may use non-personally identifiable information to provide better service to you and to other users, to customize our Services based on your preferences, compile and analyze statistics about the use of this Site, and otherwise administer or improve this Site for your or other users use. We do not link your personally identifiable information to non-personally identifiable information with persistent identifiers. We may share aggregated, non-personally identifiable information publicly and with our partners – like publishers, advertisers or connected sites. For example, we may share information publicly to show trends about the general use of our Services.
22. CALIFORNIA CONSUMER PROTECTION NOTICE
Pursuant to California Civil Code Section 1789.3 and California Business and Professions Code Section 17538, residents of California are hereby advised that the provider of the electronic commercial service on this Site is: Wish For Yellow, LLC, 4279 Roswell Road, STE 208 #110, Atlanta, Georgia 30342.
Users are notified in advance regarding any applicable service charges. Subscription fees and charges for Services will be posted as part of the ordering process for this Site and are availablehere. In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:
Wish For Yellow, LLC
4279 Roswell Road, STE 208 #110, Atlanta, Georgia 30342
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1625 N. Street, Suite N 112, Sacramento, CA 95834, or by telephone at 1-800-952-5210.
A. Our Services (including, without limitation, text, design, graphics, logos, icons, images, audio clips, downloads, interfaces, code and software, as well as the selection and arrangement thereof) are the exclusive property of and owned by Yellow, its licensors, or its third-party content providers. The Services are protected under U.S. copyright laws, international treaties or conventions and other laws. Neither your use of the Services nor anything in this Agreement (or otherwise) will confer any title, ownership interest, or intellectual property rights to you. Company names, logos and all related product and service names, design marks, and slogans of Yellow and its affiliates or any Third-Party Service Providers are the property of the respective company. You are not authorized to use any such name or mark in any advertising, for publicity, or in any other commercial manner. Yellow reserves all rights not expressly granted in and to the Site and the Services.
B. NO OWNERSHIP RIGHTS IN ACCOUNT
You agree that you have no ownership or other property interest in any account stored or hosted on Yellow system, including without limitation any registration or User Account, and further agree that all rights in ad to such accounts are and shall be owned by and inure to the benefit of Yellow.
C. OWNERSHIP OF PERSONAL EXERCISE PROGRAMS
You agree that all Personal Exercise Programs created by you using the Services or on the Site shall be the exclusive property of Yellow, and you hereby relinquish all right, title and interest in and to such Personal Exercise Programs. You hereby assign to Yellow all of your right, title, and interest, including all rights of copyright, patent, and other intellectual property rights, to or in all such Personal Exercise Programs.
D. USE OF FEEDBACK
Some of our Services or portions or features of our Site allow you to submit comments, feedback or suggestions (hereinafter “Feedback”). When you upload or otherwise submit Feedback to us, you grant Yellow an assignable, fully paid up, fully sub-licensable, irrevocable, nonexclusive, perpetual, royalty-free, unlimited, worldwide license to copy, commercialize, create derivative works of, distribute, host, improve, modify, publish, publicly display, publicly perform, store, and use (in any way now known or in the future discovered) the content (including, but not limited to, any concepts, data, ideas, know-how, or techniques) of any Feedback you provide to Yellow, without any further consent, notice and/or compensation to you or to any third party. This license continues even if you stop using our Services or if you cancel your registration. You represent and warrant that you have the necessary rights to grant us this license for any Feedback that you submit to us.
E. UNSOLICITED IDEA POLICY
We do not accept or consider unsolicited ideas, including ideas for new advertising, new promotions, new or improved products or services, or marketing plans (hereinafter “Unsolicited Submissions”). Please do not send any Unsolicited Submissions to us. If, despite this request, you still send us an Unsolicited Submission, then you agree that by uploading the Unsolicited Submission onto our Site or by otherwise sending the Unsolicited Submission to us, the Unsolicited Submission and its contents becomes the property of Yellow, without any compensation to you, regardless of what your letter, email or any other accompanying communication says. We have no obligation to review any Unsolicited Submission or to keep any Unsolicited Submission confidential.
24. NO WARRANTY
YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED "AS-IS" AND “AS AVAILABLE.” WE DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR THIRD PARTY RIGHTS, AND ANY WARRANTY IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING, AND WE MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, OR THE ACCURACY OF ANY INFORMATION OBTAINED FROM OTHER USERS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF OUR CONTENT OR SERVICES IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. WE DO NOT WARRANT OR GUARANTEE THAT YOU WILL ACHIEVE OR OBTAIN ANY EXERCISE, HEALTH, WEIGHT LOSS, FITNESS OR OTHER SPECIFIC RESULT OR IMPROVEMENT FROM THE USE OF OUR SERVICES.
NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING WITHOUT LIMITATION STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY YELLOW’S EMPLOYEES, AGENTS, OR OTHERWISE THAT IS NOT SPECIFICALLY CONTAINED OR REFERENCED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY YELLOW FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF YELLOW WHATSOEVER. YELLOW MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND LIABILITIES FOR ANY THIRD-PARTY SERVICES.
25. EXCLUSION AND LIMITATION OF LIABILITY
YOU UNDERSTAND AND EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK, THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED OR OBTAINED AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR THE OBTAINING OF SUCH MATERIAL AND/OR DATA. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR AS REQUIRED BY LAW, WE ASSUME NO RESPONSIBILITY FOR THE DELETION OR FAILURE TO STORE ANY USER CONTENT. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SITE MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES.
NEITHER YELLOW NOR ITS AFFILIATES, SUPPLIERS, OR THIRD-PARTY CONTENT PROVIDERS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR THE INABILITY TO USE, OR DELAY IN USING THE SERVICES OR THIS SITE, ANY INACCURACY OF ANY INFORMATION OBTAINED FROM US OR FROM OTHER USERS, ANY BREACH OF SECURITY CAUSED BY A THIRD PARTY, ANY TRANSACTIONS ENTERED INTO BASED ON THE SERVICES, ANY LOSS OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR USER CONTENT OR DATA OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE ENTIRE LIABILITY OF YELLOW FOR ANY REASON SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES (IF ANY) PAID BY YOU TO YELLOW DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. YOU AGREE AND ACKNOWLEDGE THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN YOU AND YELLOW, THAT OUR PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION OF RISK AND LIMITATION OF LIABILITY, WE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITH YOU.
IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSIONS OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT PERMIT IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE IS INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, COUNTRY OR OTHER JURISDICTION.
You agree to defend, indemnify, and hold harmless Yellow, its affiliates, and their respective officers, directors, employees and agents, from and against all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), costs and expenses (including but not limited to reasonable attorneys’ fees) threatened, asserted, or filed against Yellow, its affiliates, and/or their respective officers, directors, employees and agents arising out of or relating to: (a) Your use or misuse of the Services or Services; or (b) Any dispute between you and any third party (including any Third-Party Fitness Service Provider).
27. ARBITRATION OF DISPUTES
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO YOUR VISIT TO THIS WEBSITE OR TO OUR SERVICES OR TO OTHER SERVICES ACCESSED THROUGH THIS WEB SITE WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. The Federal Arbitration Act and federal arbitration law apply to this Agreement.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS OF THIS AGREEMENT AS A COURT WOULD.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at: Yellow LLC, 4279 Roswell Road, STE 208 #110, Atlanta, Georgia 30342. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available atwww.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not to seek attorneys' fees and costs in arbitration unless the arbitrator determines that your claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
YOU AND YELLOW EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a claim proceeds in court rather than in arbitration, YOU AND YELLOW EACH WAIVE ANY RIGHT TO A JURY TRIAL. You and Yellow also both agree that you or we may bring suit in any court of competent jurisdiction to enjoin infringement or other misuse of intellectual property rights.
28. GOVERNING LAW
This Agreement and, to the fullest extent permitted by applicable law, all matters arising out of or relating in any way to this Agreement (whether arising in contract or tort), shall be governed by and construed in accordance with the law of Georgia, without giving effect to any choice or conflict of law provision that would cause the application of the laws of any jurisdiction other than Georgia.
If any provision contained in this Agreement is held by a competent tribunal to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
30. FORCE MAJEURE
We shall not be liable for damages for any delay or failure of delivery or disruption of the content or Services delivered through the Site resulting from or arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to Internet disruptions, hacker or denial of service attacks, computer, telecommunications or any other equipment failures, electrical power failures, acts of God, acts of civil or military authority, fires, riots, wars, embargoes, labor disputes, insurrections, civil disturbances, shortages of labor or materials, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.
You may not assign this Agreement to any other party. You agree that we may assign this Agreement to an affiliate of Yellow or to a purchaser of substantially all our assets. We may also assign or delegate certain of our rights and responsibilities under this Agreement to independent contractors or to other third parties.
32. NO WAIVER
No delay or omission on the part of Yellow in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a waiver of any rights or remedies on future occasions.
33. CAPTIONS; HEADINGS
The captions of sections in this Agreement are for convenience only and will not control or affect the meaning or construction of any of the provisions of this Agreement.
34. SUCCESSORS AND ASSIGNS
Any uncertainty or ambiguity with respect to any provision of this Agreement shall not be construed for or against any Party based on attribution of drafting to either Party.
36. ENTIRE AGREEMENT
This Agreement, any attachments, addenda, policies, schedules, and other agreements referred to in this Agreement or linked hereto contain the entire agreement between you and Yellow; and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written between you and Yellow.
37. ADMISSIBILITY OF DOCUMENTS IN PROCEEDINGS
All documents in any format are considered to be true, complete, valid and authentic, and enforceable records of the applicable document admissible in judicial or administrative proceedings to the same extent as if the documents and records were originally generated and maintained in printed form. You will not contest the admissibility or enforceability of your copy of the documents in any proceedings arising out of this Agreement.
38. ADVICE OF COUNSEL
YOU ACKNOWLEDGE THAT YOU HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT.