Terms Of Service
Last Updated: October 19, 2017
YoDerm, Inc. (“YoDerm”, “us” or we”) provides users of the YoDerm site available at https://www.yoderm.com/ and any successor to such site (the “Website”) (“Users”) with online access to personalized dermatology consultations provided directly to Users by board certified dermatologists (each, a “Dermatologist”) that Users can locate through our website (each, a “Consultation”) and purchase and/or use the products and/or services provided through the Website ("Products") The services offered by YoDerm include the Website and any other features, content, products, or services offered from time to time by YoDerm in connection with the Website (collectively, the “Services”), but you agree that the Services do not include, and that YoDerm does not and will not provide you with, any licensed professional medical services of any kind. This YoDerm Terms of Service (“Agreement”) sets forth the legally binding terms for your use of the Services. By using the Services, you agree to be bound by this Agreement. The Services are only available to residents of the United States, and you hereby represent and warrant that you are a resident of the United States.
BY ESTABLISHING AN ACCOUNT ON THE WEBSITE AND/OR BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO FOLLOW AND BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBSITE OR THE SERVICES. THE TERM “YOU” OR “USER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, THAT ESTABLISHES AN ACCOUNT ON OR USES THE SERVICES.
Additional Terms and Amendments. In order to participate in or receive certain Services, you may be required to agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to the Services in which you choose to participate or that you choose to receive, those additional terms are hereby incorporated into this Agreement. To the extent there is a conflict between the terms in this Agreement and the terms and conditions posted for a specific area of the Website or in connection with a Service, the latter shall have precedence with respect to your use of that area of the Website or Service. This Agreement may be modified by us from time to time. If we make material changes to the Agreement, we will notify you by sending an e-mail to your e-mail address, as specified in your Account (as defined below); You agree that such amended Agreement will be effective thirty (30) days after being sent to you, and your continued use of the Services after that time shall constitute your acceptance of the amended Agreement.
YoDerm takes your privacy seriously. For more information about our privacy practices visit: http://www.yoderm.com/privacy/policy/
General Representations and Warranties of User:
- You understand that the Website is not a substitute for the in-person treatment or advice of your local dermatologist, primary physician, or any other qualified health care professional.
- You understand that the website and Products facilitate dermatology consultations limited to the diagnosis and treatment of acne, rosacea, hypotrichosis (eyelash thinning), androgenic alopecia (male pattern baldness), and skin aging, and not for any other medical or dermatological condition, including skin cancer.
- You understand that the teledermatology services and any prescription products made available through the Website are provided by U.S. licensed medical providers licensed in your state, and that YoDerm, Inc., is not a healthcare provider.
- You understand that you should never delay seeking advice from your dermatologist, primary care physician, or any other health professionals due to any diagnosis, advice, or other information provided (or the omission of any such information) by YoDerm, the Website or the Products, or a healthcare provider through YoDerm, the Website or Products.
- All information you provide to YoDerm is true, accurate, current, and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current, and complete, as long as you are using the Website. If we have reasonable grounds to suspect such information is not true, accurate, current, or complete, we may deny or terminate your access to the Website (or any portion thereof) in our sole direction, subject to compliance with any notice or waiting period provided by applicable law.
1. Eligibility. By using the Services, you represent and warrant that you are thirteen years of age or older and your use of the Services does not violate any applicable law or regulation. We have the right to terminate your Account without warning or notice to you if we have reason to believe that you are in breach of these representations and/or if any Registration Information (as defined below) is false or inaccurate.
2. User Account.
2.1. Creating Your Account. Prior to receiving and in order to receive a Consultation, you must create a User account (an “Account”) by registering through the Services, providing us with true, accurate, and complete information as requested on the registration form (your “Registration Information”), accepting this Agreement, and signing the Authorization for the Use and Disclosure of Health Information (the “Authorization Form”). You will promptly update all Registration Information to keep it true, accurate, and complete. Should we suspect that any Registration Information you provide is not true, accurate, or complete, we have the right to suspend or terminate your use of the Services. When you register, we will ask you to provide a user name and password. You agree to keep your password confidential. You agree to notify us immediately of any unauthorized use of your user name or password or if you believe that your password is no longer confidential. You will be responsible for any activities that occur under your Account until you terminate your Account in accordance with Section 3 We reserve the right to require you to alter your user name and/or password if we believe that your Account is no longer secure. You will not: (a) create an Account for anyone other than yourself or your child; (b) create or use more than one Account at any given time; (c) transfer your Account to anyone else; (d) permit anyone else to use your Account; or (e) use or access any other person’s Account.
2.2. Account Use Restrictions. The Services are for the personal use of Users only and Users may not use them in connection with any commercial endeavors. You represent and warrant that you will use the Services solely for your own personal benefit and that you will not resell or distribute the Services. You will not use any information obtained from the Services in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any User without that User’s prior explicit consent. You will not: (i) interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services; or (ii) introduce software or automated agents to the Services so as to produce multiple Accounts, generate automated messages, or to strip or mine data from the Services. You will not attempt to impersonate another User or person, including, without limitation, any employee of YoDerm. At all times, you will use the Services in a manner consistent with any and all applicable laws and regulations.
2.3. Ordering Services. Prior to receiving a Consultation, you must sign the Authorization Form, and each time you order a Consultation you must provide payment for the Consultation as described in Section 4. To order a Consultation, you must be at least 18 years of age or the applicable age of majority in your jurisdiction. In the event that you are between the age of 13 and 18, your parent or guardian will need to provide a valid e-signature. By placing an order for a Consultation, you represent and warrant that you are at least 18 years of age or the applicable age of majority in your jurisdiction and are ordering a Consultation either for yourself or on behalf of a minor at least 13 years of age as a lawful parent or guardian. Upon completion of your Registration Information, YoDerm will automatically assign a Dermatologist to you who is licensed to practice within your state and will send you a confirmation by e-mail indicating that your order has been placed and identifying the Dermatologist assigned to you. Prior to placing your order, you may elect to change this Dermatologist to another Dermatologist licensed to practice in your state.
3. Term. This Agreement shall remain in full force and effect while you use the Services or have an Account. You may delete your Account at any time, for any reason by within the “My Account” tab inside of your patient profile. YoDerm may terminate your Account for any reason, effective upon sending notice to you at the then-current e-mail address in your Registration Information. Even after any termination, Sections 5 through 16 of this Agreement will remain in effect. You understand that YoDerm reserves the right to delete any of your Registration Information or Content (as defined below) upon termination of this Agreement and/or your Account, but may retain any Registration Information or Content for archival purposes or as required by law. YoDerm will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
4. Fees and Payment.
4.1. Payment Terms. At the time you order any Consultation (or any other Service), you will be required to give us a valid health savings card number or a valid credit card number, issued by an issuer accepted by us, together with any other payment information we request. Your credit card issuer agreement or health savings account agreement governs your use of your designated payment method, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. You agree that no additional notice or consent is required before YoDerm invoices the designated payment method for all amounts due and payable. You agree to pay all such fees and charges incurred in connection with your use of the Services in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. All payment obligations are non-cancelable and all amounts paid are nonrefundable. YoDerm shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. YoDerm’s 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 taxes based solely on YoDerm’s income. You agree to provide YoDerm with complete and accurate billing and contact information. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, YoDerm may terminate your access to the Service in addition to any other legal remedies. YoDerm reserves the right, at any time, to change its prices and billing methods for Consultations and other products and services sold, either immediately upon posting on the Website, or by e-mail delivery to you. Any billing disputes may be delivered to the address set out in Section 14
4.2. Distinct Fees. You acknowledge that the fees and charges incurred in connection with your use of the Services and your order of any Consultation include, even if billed collectively, two distinct fees: 1) an administrative fee for YoDerm’s Services and 2) a professional fee for Dermatologists’ services associated with the Consultation. You further acknowledge that although these fees may be collected at one time, YoDerm does not share in the professional fees collected for any Dermatologist’s services and derives its sole payment from you in the form of the administrative fee. YoDerm will identify to you the respective portions of fees and charges that are for YoDerm’s administrative fees and for Dermatologists’ professional fees.
4.3. Order acceptance policy. Your receipt of an electronic order confirmation merely confirms our receipt of your order and does not signify YoDerm’s acceptance of your order. Your order will be deemed accepted when your assigned Dermatologist provides you with your Consultation. In the event that your assigned Dermatologist cannot provide you with a Consultation for any reason, YoDerm reserves the right at any time after receipt of your order to decline your order. In the event that YoDerm declines your order, YoDerm will return your payment using the same payment method designated by you on your order.
4.4 Monthly subscription, renewals, and cancellation policy. If you purchase a subscription offering on YoDerm, your subscription will automatically renew on each monthly anniversary date of the subscription (or bi-monthly anniversary date, depending on the subscription selections you make). By checking the box demonstrating your consent for automatic monthly renewal of your subscription, YoDerm will charge your Payment Method with the applicable subscription fee and any shipping and handling costs and sales or similar taxes that may be imposed on your subscription fee payments.
You may cancel your subscription at any time by logging into your account page on YoDerm.com. To cancel a membership, please send a message to YoDerm support from within your account or email firstname.lastname@example.org. Cancellation requests submitted must be received at least one full calendar day prior to your next shipping date to avoid being charged for your for that shipment. Cancellation requests received after that shall take effect the following month. If you cancel your subscription, you will enjoy your subscription benefits until the end of the then-current subscription term, and your subscription benefits will expire at the end of the then-current subscription term for which you have paid. You will not be eligible for a prorated refund of any portion of the subscription fees paid for any unused days of the then-current subscription term.
4.5 Pausing and resuming shipping. YoDerm offers it's paying subscribers the ability to temporarily pause their subscription ("Pause Period"). During the Pause Period, subscribers will remain active, but they will not receive any products. A subscriber may be placed on a Pause Period for either a one, two, or three month period. During the Pause Period, members will remain active, continue to receive communications from YoDerm via email, but will not be charged any maintenance or membership fee. Subscribers who are in a Paused Period may resume receiving products by logging into their account and Resuming shipping either immediately or on their bill date. You may email any questions about the Pause Period to email@example.com.
5. Content and Proprietary Rights.
5.1. Your Content. For purposes of this Agreement, “Content” means any and all postings, messages, text, files, images, photos, video, works of authorship, or other material. YoDerm does not claim ownership in any Content that you originate and publish, display, submit, upload or otherwise transfer (“post”) to the Service, including Content that you submit using the Services in connection with any Consultation. You hereby grant to YoDerm a non-exclusive, worldwide, irrevocable, perpetual, fully-paid and royalty free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to reproduce, modify, publicly display, publicly perform, prepare derivative works of, transmit, and distribute Content for the purpose of (a) providing you with the Services and (b) creating, using, and disclosing de-identified and/or aggregated data from Your Content. You represent and warrant that: (i) you own or otherwise have the right to grant the license set forth in this section for the Content that you post on the Service and (ii) your Content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity. You are solely responsible for any and all Content that is posted by or through your Account on any Service.
5.2 User Guidelines. YoDerm reserves the right (but is not obligated) to investigate and to take appropriate legal action in its sole discretion for any violation of this provision or this Agreement or any conduct that is offensive, illegal, or violates the rights of, harms, or threatens the safety of, other Users or third parties, including removing such content from the Services, notifying the appropriate authorities, barring violators from accessing the Services, and terminating the Accounts of such violators. Without limiting the foregoing, you agree that you will not post any Prohibited Content. “Prohibited Content” includes Content that: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) bullies, harasses, or advocates stalking, bullying, or harassment, of another person; (iii) involves the transmission of “junk mail,” “chain letters,” unsolicited mass mailing, or “spamming,”; (iv) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) promotes, reproduces, performs or distributes an illegal or unauthorized copy of another person’s work that is protected by copyright or trade secret law; (vi) is involved in the exploitation of persons under the age of 13 in a sexual or violent manner, or solicits personal information from anyone under 13; (vii) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses and other harmful code; (viii) solicits passwords or personally identifying information for commercial or unlawful purposes from other Users; (ix) except as expressly approved by YoDerm, involves commercial activities and/or promotions such as contests, sweepstakes, barter, advertising, or pyramid schemes; (x) contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software; (xi) violates any applicable law, including, but not limited to export laws; or (xii) otherwise violates this Agreement or creates liability for YoDerm.
5.3. YoDerm Content. The Services contains Content owned and/or developed by or on behalf of YoDerm and its licensors (“YoDerm Content”). YoDerm and its licensors (including Users) own and retain all proprietary rights in the YoDerm Content and the Services. You shall not reproduce, distribute, publicly perform (including by means of digital audio transmission), publicly display, create derivative works of, and otherwise use the YoDerm Content. YoDerm hereby grants you a limited, revocable, non-sublicenseable license to reproduce and publicly display the YoDerm Content (excluding any software code) solely for your personal use in connection with viewing the Website and using the Services.
5.4. The Website is a Venue The Website is a venue designed to connect Dermatologists with Users looking for dermatology YoDerm does not provide or arrange for dermatology services. YoDerm does not participate in the interaction between Dermatologists and Users except to charge Users fees that include administrative fees for YoDerm’s Services and professional fees for Dermatologists’ services associated with Consultations, but YoDerm does not share in the professional fees collected for any Dermatologist’s services and derives its sole payment from you in the form of administrative fees. Any disputes related to any dermatology services received by Users or payment due to any Dermatologist must be resolved directly between User and Dermatologist. You understand and agree that YoDerm has no control over and is not responsible for the acts or omissions of any Users or Dermatologists on or off the Website. You also understand and agree that YoDerm makes no representation or warranty regarding the quality of any services provided by any Dermatologist. YoDerm is not responsible for the accuracy or reliability of any information provided, on or off the Website, by any Dermatologist or any User.
5.5. YODERM EXPRESSLY DISCLAIMS, AND YOU EXPRESSLY RELEASE YODERM FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY DAMAGES, SUITS, CLAIMS AND/OR CONTROVERSIES THAT HAVE ARISEN OR MAY ARISE FROM AND/OR IN ANY WAY RELATE TO ANY ACTS OR OMISSIONS OF DERMATOLOGISTS AND/OR USERS ON OR OFF THE WEBSITE OR IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE PROVISION OF ANY SERVICES BY ANY DERMATOLOGIST.
6. Copyright Policy Upon prompt notification to YoDerm by a copyright owner or a copyright owner’s legal agent, it is YoDerm’s policy to terminate the Account of any User who repeatedly infringes third party copyright rights. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent (using the contact information listed below) with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the location on the Service of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for YoDerm’s Copyright Agent for notice of claims of copyright infringement is as follows:
Attn: Copyright Agent.
330 2nd Street #201
Oakland, CA 94607
7. Third Parties and Other Users and Dermatologists.
7.1 Third Party Content. Content from other persons (including any Users and Dermatologists), advertisers, and other third parties may be made available to you through the Services. Because YoDerm does not control such Content, you agree that YoDerm is not responsible for any such Content, including advertising and information about third party products or services. Because YoDerm does not have control over such Content, YoDerm makes no guarantees about the accuracy, currency, suitability, or quality of such Content, and YoDerm assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Content made available by other persons (including any Users), advertisers, and third parties.
7.2 Responsibility. Your interactions with other persons (including any Users and Dermatologists) or third parties using the Services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other person or third party. You agree that YoDerm will not be responsible for any loss or damage incurred as the result of any such dealings or with respect to any other User’s use or disclosure of your personally identifiable information. If there is a dispute between you and any third party (including any User and/or Dermatologist), YoDerm is under no obligation to become involved; however, YoDerm reserves the right to monitor and, in YoDerm’s sole discretion, become involved in disputes between you and other Users and/or Dermatologists.
8. No Warranty. TO THE EXTENT LEGALLY PERMITTED UNDER THE APPLICABLE LAWS, (A) THE SERVICES ARE PROVIDED “AS-IS” AND AS AVAILABLE, (B) YODERM EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. Limitation on Liability. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, YODERM SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF YODERM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, YODERM’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO THE GREATER OF FIFTY U.S. DOLLARS ($50), OR THE AMOUNTS YOU PAID TO YODERM IN THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE CLAIM. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE YODERM’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF YODERM OR EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10. Release. You hereby release YoDerm, its officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interaction with any other User and/or with any Dermatologist.
If you are a California resident, you hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
11. Indemnity. You agree to defend, indemnify, and hold YoDerm, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Services in violation of this Agreement and/or arising from your breach of any provision of this Agreement.
12. Electronic communications. Communication between you and YoDerm will be affected through electronic means, including, without limitation, through the Website, e-mails, and/or SMS. For contractual purposes, you (a) consent to receive communications from YoDerm in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that YoDerm provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in writing. The foregoing does not affect your statutory rights.
13. Dispute Resolution.
13.1 Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, YoDerm may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different fromCalifornia law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the the Services.
13.2 Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
13.3 You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights 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. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
13.4 You and YoDerm must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR YODERM MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, YoDerm will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) YoDerm also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
13.5 The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of the Agreement. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.
Notwithstanding the foregoing, either you or YoDerm may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
13.6 With the exception of Section 13.4(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either Section 13.4(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor YoDerm shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco County, California. By using the Services in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
14. Governing Law.This Agreement shall be governed by and interpreted by and under the laws of the State of California, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You and YoDerm agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts located in San Francisco, California and the federal courts located in the Northern District of California in such legal action or proceeding. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. Notwithstanding the foregoing, YoDerm may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.
15. Other. This Agreement constitutes the entire agreement between you and YoDerm regarding the use of the Services. If any provision of this Agreement is, for any reason, found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of YoDerm to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Please contact us with any questions regarding this Agreement at YoDerm Customer Service, 25963 Carmel Knolls Dr. Carmel CA, 93923, or at firstname.lastname@example.org.
Information. Copyright © 2013, YoDerm. All rights reserved. The
trademarks, logos and service marks (“Marks”) displayed on the
Website are the property of YoDerm or other third parties. You are not
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17. No Professional Advice All information, materials, content and/or advice on the Website or provided through the Services is for informational purposes only and is not intended to replace or substitute for any professional, financial, medical, legal or other advice. YoDerm expressly disclaims, and You expressly release YoDerm from, any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Website. You should consult with an appropriately trained specialist for all concerns that require professional or medical advice.