These Terms and Conditions Agreement (this “Agreement”) are entered into by and between Yumi Limited  (“Yumi” or “we” or “us”) and you (“you” or “your”) concerning your use of (including any access to) the Kasual mobile app (the “App”), the Kasual site currently located at https://www.kasualapp.com (the “Site”) or any other platforms or services that We may offer (collectively, the “Services”).   You and Yumi may also be referred to individually as a “Party” and, collectively, as the “Parties.”

IT IS ESSENTIAL THAT YOU READ THESE TERMS OF SERVICE AS THEY DESCRIBE AND, IN SOME CASES, LIMIT YOUR RIGHTS.

YOUR ACCESS OR USE OF THIS APP, THE SITE OR ANY OF THE SERVICES INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT. If you do not agree with or do not wish to be bound by any provision of this Agreement, cease using the Services immediately.

THE APP AND THE SITE ARE NOT INTENDED FOR PERSONS UNDER 18 YEARS OF AGE.

This Agreement contains a mandatory arbitration provision that, as further set forth in Section 16.2 below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.

Therefore, the Parties agree as follows:

1. Changes to this Agreement.

We may update or modify this Agreement from time to time by notifying you through any reasonable means, including by posting a revised Agreement through the App or Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.

If you are a Member with a paid Membership Plan, changes to this Agreement will become binding only upon renewal of your Membership, unless otherwise stated. Members will be notified of material changes by email. For all other users, it is your responsibility to review the Agreement periodically for changes.

Your continued use of the Services following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed.

We may, at any time and without liability, modify or discontinue all or part of the Services; charge, modify or waive any fees required to use the Services; or offer features or services to some users but not others.

2. Definitions.

In addition to the definitions provided throughout the Agreement, the following terms have the following meanings when used herein:

“Affiliate” means a person, natural or legal, that (a) is owned or controlled, directly or indirectly, by a Party, (b) owns or controls, directly or indirectly, a Party (c) is under common control as a Party or (d) is a familial relative of a Party.

“Documentation” means any websites, manuals, videos, documentation, emails and other supporting materials related to the App including but not limited to this Agreement and the Privacy Policy that we elect to provide you or that you can access under this Agreement.  Documentation is considered part of the Services.

“Encounter” means any communication, meeting or other interaction between two or more Users, including but not limited to you.

“Member” means a person who has purchased a Membership.

“Membership” means the result of purchasing a subscription.

“Membership Fee” means the amount paid for a Membership.

“Membership Plan” the features of each level of Membership as defined on the subscription page of the App.

“Membership Term” means the period from the commencement of a Membership Plan to its termination.

“Post” means to post, upload, publish, link to, transmit, record, display or otherwise make User Content available on the App.

“Third Party Materials” means information, products, services and other materials made available by third parties.

“User” means any person who uses the App to connect with any other person.

“User Content” means the profile (including personal information), photographs, videos, chat and messages (text or voice) of each User that such User elects to post publicly or privately on or through the App.

3. The App

You do not have to purchase a Membership or any other service or product to use the App. Since you are not required to identify yourself, the App is specific to the device you are using and will remember your device but, if you use multiple devices, you will have to create a profile on each device.

The App is licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for as long as We permit you to use the App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to download and use the App to one or more mobile devices that you own or control, solely for your personal, non-commercial use. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device.

There may be photographs, videos, User Content and other information on the App which are available for viewing whether or not you are a Member.  Any and all restrictions, rules, ownership rights, disclaimers and waivers provided herein shall apply equally to all such information available on or through the App whether you are a Member or not.

4.  In-App Purchases.

4.1 In-App Purchases.

From time to time, Yumi may offer products and services for purchase through the App Store ℠, Google Play or other application platforms (“in app purchases”), such as Memberships and Boosts. If you choose to make an in app purchase, you will be prompted to enter details for your account with the mobile platform you are using (e.g., Apple, Android, etc.) (“your IAP Account”), and your IAP Account will be charged for the in app purchase in accordance with the terms disclosed to you at the time of purchase as well as the general terms for in app purchases that apply to your IAP Account.

If you purchase an auto-recurring periodic subscription through an in app purchase, your IAP Account will be billed continuously for the subscription until you cancel in accordance with the platform terms. After your initial subscription commitment period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing.

If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to log in to your IAP account and follow instructions to cancel your subscription, even if you have otherwise deleted your account with us or if you have deleted the App from your device.

Deleting your account or deleting the App from your device does not cancel your subscription and, in such case, we will retain all funds charged to your IAP Account until you cancel your subscription through your IAP Account. In all cases, please refer to the terms of your application platform that apply to your in app purchases.

Because the App may be utilized without a subscription, canceling your subscription does not remove your account from the App. If you wish to fully delete your account, you must delete your account in the App.

4.2 Memberships

If you purchase a Membership, you shall have a limited, non-exclusive license to access, through the App, the User Content.   When you join as a Member, you will receive the benefits provided for the type of Membership you purchase, as described on the Subscription Page of the App.

Memberships are purchased through the Apple App Store or Google Play, which will require a valid payment card on which you will be charged the subscription fee based on the Membership Plan you chose on the Subscription Page – monthly, quarterly or semi-annually.

Membership Plans automatically renew until terminated by you or us, as provided herein.  Upon renewal, the method of payment provided by you shall be charged the Membership Fee as specified for the Membership Plan you selected.  In the event the payment method provided by you is declined, Apple will notify you and you will have the opportunity to provide an alternative method of payment within Sixteen (16) business days of notice of decline, or Google will notify you and you will have the opportunity to provide an alternative method of payment within Fourteen (14) business days of notice of decline. If a payment is not effectively processed, your Membership will be terminated.

4.3  Termination

Yumi reserves the right to change its prices for the Membership Plans at any time PROVIDED that no increases in prices will be effective for any Membership Plan that has already commenced.

In addition to termination for failure of payment, any Membership Plan and/or this Agreement may be terminated by either you or Yumi at any time, for any or no reason.

In the event of a termination by you other than on the renewal date of a Membership Term,

(a) you will continue to have such level of access to User Content as provided under the Membership Plan you had at the time of termination for the remainder of the then-current Membership Term; and

(b) except as required by applicable law, there will be no refunds, discounts or credits for amounts paid with respect to any portion of the then-current Membership Term remaining after the effective date of termination regardless of reason.

At the conclusion of the Membership Term during which you request termination,

(a) you will not be billed for any recurring Membership Fees; and

(b) you will no longer have access to the User Content.

In the case of a termination of a Membership Plan by Yumi due to a breach by you of this Agreement, Yumi reserves the right to immediately suspend or cease access to the Services and User Content and/or claim additional damages as Yumi determines to be appropriate and warranted.

5. State-Specific Cancellation Rights

Generally, all purchases are final and nonrefundable, and there are no refunds or credits for partially used periods, except if the laws applicable in your jurisdiction provide for refunds.

For Users residing in Arizona, California, Colorado, Connecticut, Illinois, Iowa, Minnesota, New York, North Carolina, Ohio, Rhode Island or Wisconsin: You may cancel your auto-renewing subscription purchased through an in app purchase at any time prior to midnight of the third business day following the date you subscribed, without penalty or obligation.

If this right applies to you and you made your subscription through your IAP Account (via the Apple App Store or Google Play), your refund request must be directed to the application platform through which the purchase was made, not to us. Please refer to the terms of your applicable IAP Account for further instructions on managing cancellations and refunds.

6. Creation of User Content.

6.1  Your Responsibilities.  You are solely responsible for the User Content that you Post and agree that any User Content you Post may be viewed by other Users. If you choose to make any of your personally identifiable or other information available in any User Content you Post, you do so at your own risk.

6.2  Monitoring by Us. We have no control over and are not responsible for any use or misuse (including any distribution) by any third party of any User Content. You understand and agree that we may, but we are not obligated to, monitor or review any User Content you or others Post on the App. We reserve the right to delete any User Content, in whole or in part, that in our sole judgment violates this Agreement or may harm the reputation of the App or the Company.

6.3  Limited License. For purposes of clarity, you retain ownership of User Content you Post. You hereby grant to us, our Affiliates, licensees and successors an irrevocable, perpetual, non-exclusive, transferable, sub-licensable, royalty-free, fully paid-up, worldwide right and license to (i) use, copy, store, perform, display, reproduce, record, play, adapt, modify and distribute the User Content, (ii) prepare derivative works of the User Content or incorporate the User Content into other works for any purpose, and (iii) grant and authorize sublicenses of the foregoing in any media now known or hereafter created.

6.4  Prohibited User Content.  The following is a partial list of User Content that is prohibited from the App. You may not Post User Content that:

• contains overtly sexual or pornographic material, defined by Webster’s Dictionary as “explicit descriptions or displays of sexual organs or activities intended to stimulate erotic rather than aesthetic or emotional feelings;”
• promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
• advocates harassment or intimidation of another person (includes bullying);
• requests money from, or is intended to otherwise defraud, other Users;
• involves the transmission of junk mail, chain letters, or unsolicited mass mailing or spamming (or spimming, phishing, trolling or similar activities);
• promotes information that is false or misleading, or promotes illegal activities or conduct that is defamatory, libelous or otherwise objectionable;
• contains realistic portrayals of people or animals being killed, maimed, tortured or abused, or content that encourages violence;
• contains inflammatory religious commentary or inaccurate or misleading quotations of religious texts;
• promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
• contains video, audio photographs, or images of another person without his or her permission (or in the case of a minor, permission of the minor’s legal guardian);
• contains restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page);
• provides material that exploits people in a sexual, violent or other illegal manner, or seeks to engage with or collect information from anyone under the age of 18;
• provides instructional information about illegal activities such as making or buying illegal weapons or drugs, violating someone’s privacy, or providing, disseminating or creating computer viruses;
• contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices;
• impersonates, or otherwise misrepresents affiliation, connection or association with, any person or entity;
• provides information or data you do not have a right to make available under law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information);
• disrupts the normal flow of dialogue, causes a screen to scroll faster than other users are able to type, or otherwise negatively affects other users’ ability to engage in real time exchanges;
• solicits passwords or personal identifying information for commercial or unlawful purposes from other users or disseminates another person’s personal information without his or her permission; and
• publicizes or promotes commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.

7. Your Use of the App.

7.1  Your Responsibilities. There is no tolerance for objectionable content or abusive Users. We reserve the right, in our sole discretion, to investigate and take any legal action against anyone who violates this provision, including removing the offending User Content from the App and terminating or suspending the account of such violators.

You will (a) be responsible for your compliance with this Agreement, (b) use reasonable efforts to prevent unauthorized access to the User Content, and notify Yumi promptly of any such unauthorized access or use, and (c) use the App only in accordance with the Documentation and all applicable laws and regulations, including, without limitation, applicable export control laws and regulations.  You are solely and exclusively responsible for the security of the accounts issued to you.  Yumi shall be entitled to rely on the authority of any person using the account in providing information to and taking all actions that the authorized user would be entitled to take or direct.

7.2 No Solicitation or Commercial Use.  You may not use the Services to solicit, advertise, promote, or facilitate any form of commercial sexual services, escort services, or similar transactions. The App is intended solely for personal, non-commercial use. Any attempt to use the platform to arrange or promote commercial sexual activity, including offering or requesting payment or compensation in exchange for sexual services, is strictly prohibited.

7.3  Restrictions.  You will not (a) make the User Content available to, or use the User Content for the benefit of, anyone other than yourself, (b) sell, resell, license, sublicense, distribute, rent, or lease the User Content, or include the User Content in a service bureau or outsourcing offering, (c) use the App to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the App to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the App or any third-party data contained therein, (f) attempt to gain unauthorized access to the App or any related systems or networks, (g) permit direct or indirect access to or use of the User Content in a way that circumvents a contractual usage limit, (h) copy the User Content or any part, feature, function, or user interface thereof, (i) frame or mirror any part of the App or User Content other than as permitted in the Documentation, (j) access, record or copy the App or User Content in order to build a competitive product or service, (k) reverse engineer, disassemble or decompile the App, (l) modify the App or User Content, (m) harvest or collect information about Users, or (n) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Service content, or reproduce or circumvent the navigational structure or presentation of the Services, without our express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Site’s root directory, Yumi grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Yumi reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.

7.4  Your use of the App, including all User Content you Post, must comply with all applicable laws and regulations. You agree that we may access, preserve and disclose your account information, User Content, and information regarding your access to and use of the Services if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any User Content violates the rights of third parties; (iv) respond to your requests for customer service or allow you to use the Services in the future; or (v) protect the rights, property or personal safety of Yumi or any other person.

8. Your Representations and Warranties.

You represent and warrant the following:

(a) You are eighteen (18) years of age or older.

(b) The contents of your profile and any information you may provide about yourself is yours only and shall be accurate at all times (including updates you may provide from time to time).

(c) Any User Content you Post shall be original to you, is owned exclusively by you and no other person has any right, title or interest therein; you have all rights necessary to grant the license in Section 6.3, and such User Content does not infringe or violate the rights of any third party.

(d) You are accessing the User Content exclusively for your personal use with no intent to broadcast, republish, misrepresent, edit, copy, display or in any way use the User Content for any purpose other than your personal use and entertainment.

9. Intellectual Property.

Yumi owns all rights, title and interest in and to the Services, Documentation and any trademarks, copyrights, trade secrets and inventions, whether or not any of the foregoing are registered, and any ideas, suggestions, proposals, research or test results obtained through, from or as a result of your use of the App (collectively, “Intellectual Property”).  Your rights to use the Services are limited to the rights expressly granted to you in this Agreement.  Accordingly, you shall not use the Services in any manner except as provided herein. Yumi reserves all rights not expressly granted in this Agreement.  You agree that you shall not attempt to claim, register or protect any interest in or to any part of the Intellectual Property.

If you send comments or suggestions about the Intellectual Property to us, including but not limited to notes, text, drawings, images, designs or computer programs, such submissions shall become and shall remain the sole property of Yumi. No such submission shall be subject to any obligation of confidence on the part of Yumi. We shall exclusively own all rights to any such submission (including intellectual property rights thereto), and shall be entitled to the unrestricted use, publication and dissemination of all such submissions for any purpose, commercial or otherwise, without any acknowledgment or compensation to you.

10. Third Party Materials and Links.

Certain Site functionality may make available access to Third Party Materials, or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.

We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Yumi with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Site at any time. In addition, the availability of any Third Party Materials through the Site does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.

Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).

11. Copyright Infringement.

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Services infringe your copyright, you (or your agent) may send to Us a written notice by mail or e-mail, requesting that We remove such material or block access to it. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to by e-mail to [email protected].

12. Indemnification.

To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold Yumi harmless from and against any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) that may arise out of or be related to or connected with (i) any violation or alleged violation of this Agreement by you, (ii) your use or misuse of, or activities in connection with, the Services, (iii) use or misuse of, or activities in connection with, the App by any person other than you who accesses the App using your account, (iv) User Content, (v) your conduct towards other Users, or (vi) any personal injury (physical, emotional or psychological) or property damage to you or anyone else resulting from or relating to your use of the App. 

For purposes of Sections 10-13, any reference to Yumi shall include Yumi’s Affiliates, shareholders, directors, officers, employees, agents and contractors.

13. Disclaimer of Warranties.

YUMI PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YUMI DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND THOSE ARISING OUT  DEALING, USAGE OR TRADE.

While we try to maintain the timeliness, integrity and security of the Services, we do not guarantee that the Services is or will remain updated, complete, correct or secure, or that access to the Services will be uninterrupted. The Services may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Services. If you become aware of any such alteration, contact us at [email protected] with a description of such alteration and its location on the Services.

14. Assumption of Risk and Waivers.

You acknowledge and understand that engaging with people you meet online or via an app has inherent risks, including psychological, emotional, financial and even physical injury, and that those risks may be heightened by the limited or no personal information, background or context typically available in such interactions.

You expressly and unconditionally assume any risks and waive any and all claims against Yumi, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions, and regardless of the source or the cause of the issue including but not limited to failures of third-party applications, applications with which the App interacts or suggestions provided in the App:

(a) any personal injury to you or anyone else, whether physical, emotional, psychological or financial, relating to or caused by any Encounter or any third-party goods and services depicted on the Services;

(b) any unauthorized person uses your account to access the App with any result, including but not limited to making changes in authorizations or your User Content;

(c) the App is partially or totally inoperative or inaccessible, or the quality or resolution thereof on your device(s) is not as indicated in the Documentation;

(d) use of the Services or Documentation;

(e) viruses or other malicious software are transferred to your computer or other device by using the Services;

(f) bugs, errors or inaccuracies in the Services or Documentation;

(g) third-party content, actions or inactions on or with respect to the Services;

(h) a suspension or other action taken with respect to your account by Yumi; or

(i) deletion, corruption or destruction of any of your account information or User Content.

No waiver by Yumi of any breach by you of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by Yumi in exercising any right, power, or privilege under this Agreement operate as a waiver to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.

15. Limitation of Liability.

To the extent permitted by law, in no event shall Yumi have any liability to you for any indirect, special, incidental, punitive, or consequential damages (including for loss of profit, revenue, or data) arising out of or in connection with the Services, User Content or this Agreement, however caused, and under whatever cause of action or theory of liability brought (including under any contract, negligence, indemnification or other tort theory of liability) even if advised of the possibility of such damages.  To the extent permitted by applicable law, Yumi’s total cumulative liability to you or any third-party arising out of or in connection with the Services, User Content or this Agreement, from all causes of action and all theories of liability, will be limited to and will not exceed the greater of the Membership Fees (if you are a Member) paid by you during the Twelve (12) months immediately preceding the claim or One Hundred U.S. Dollars ($100.00).  The Parties agree that this section represents a reasonable allocation of risk.

16. Termination.

This Agreement is effective until terminated. Yumi may terminate or suspend your use of the Services at any time and without prior notice, for any or no reason, including if Yumi believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Services will immediately cease, and Company may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials.

17. Governing Law and Venue.

This Agreement will be governed by and interpreted in accordance with the laws of Hong Kong, without giving effect to any principles of conflict of laws.

18. Dispute Resolution.

18.1 Disputes Between Users On and Through the App.

If and to the extent a dispute arises between you and another User relating to User Content or an Encounter exclusively on and through the App, and other than a matter relating to an Encounter outside of the App or a matter which involves a criminal act under applicable law, and to the extent permitted by law, you agree that all such disputes will be resolved exclusively by Yumi, in Yumi’s sole and absolute discretion, that you waive your right, to the extent permitted by law, to maintain legal action therefor in any court of law and that in resolving any such dispute, Yumi may consider whatever evidence Yumi deems appropriate.

All decisions by Yumi shall be final and non-appealable.

18.2 Disputes Between You and Yumi.

All disputes arising out of and related to this Agreement (each, a “Dispute”) between you and Yumi shall be resolved exclusively by arbitration initiated and conducted in Hong Kong, by and in accordance with the rules of the Hong Kong International Arbitration Centre. Arbitration shall be final and binding upon the Parties. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. The Parties shall maintain the confidential nature of the arbitration proceeding and the award, except as may be necessary in connection with a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

You agree that you may bring a claim against Yumi only in your capacity as an individual User, not as the member of or participant in any group or class. 

Notwithstanding anything herein to the contrary, any Party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award, or to seek any provisional remedy, including injunctive or similar relief, without posting a bond or other security.  Otherwise, no Party shall initiate or prosecute any lawsuit or administrative action in any way related to any Dispute. Any such legal action or proceeding arising under this Agreement will be brought exclusively in courts located in Hong Kong, and the Parties irrevocably consent to personal jurisdiction and venue therein.  The prevailing Party in any such proceeding shall be entitled to recover its cost and reasonable attorneys’ fees incurred in such proceeding, including enforcement of any judgment.

EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON,  RELATING TO OR ARISING OUT OF THIS AGREEMENT, USE OF THE SERVICES, USER CONTENT OR PARTICIPATION IN ANY OF THE ACTIVITIES OR USE OF ANY OF THE PRODUCTS INCLUDED OR DEPICTED IN THE SERVICES (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. EACH PARTY HERETO CONSENTS TO SERVICE OF PROCESS BY CERTIFIED MAIL AT ITS ADDRESS LISTED HEREIN.

19. Miscellaneous.

19.1 Assignment.  You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise.  Yumi may assign this Agreement, in part or whole,  without your consent, to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets or equity.

19.2 Binding Effect.  This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.  This Agreement shall not otherwise give rise to claims by any third-party beneficiaries.

19.3 Force Majeure.  Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, communication line failure, governmental orders (including but not limited to quarantines and business closures) and power failures.

19.4 Notices.  Notices, demands or requests which either Party is required or desire to give the other hereunder shall be deemed to have been properly given for all purposes if sent by email to the address provided by Yumi below or to you at the email address provided by you, effective on the next business day (based on Yumi’s time zone).

To Yumi: [email protected]

To you:  By email as provided by you at the time of contacting us.                              

By registering on the App or becoming a Member, you expressly consent to receive any notices, announcements, agreements, disclosures, reports, documents, communications concerning new products or services, or other records or correspondence from Yumi, its Affiliates and third-parties with which Yumi does business.  You consent to receive notices electronically by email, text or other messaging service.

19.5 Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

19.6 Section Headings.  Section headings are included for ease of reference only and have no binding effect.

19.7 Interpretation.  You acknowledge and agree that you have had sufficient time and opportunity to have this Agreement reviewed by your legal counsel. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any Party as the drafter.  This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.

19.8 Headings. The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.

19.9 Entire Agreement.  This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the Parties with respect to the subject matter of this Agreement.

19.10 Survival.  Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 2, 4.2 and 6-15.

19.11 Apple-Specific Terms.  In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the price of purchases or subscriptions. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Yumi in accordance with the “Notes” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the App may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Yumi’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.