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These Terms represent a binding agreement between you and Yama Industrials, Inc. (“YAMA”) and so will, unavoidably, read like a contract. Please read these Terms carefully. By using (including by accessing) the Website (regardless of how you do so), you agree to be bound by these Terms, and any future modifications of these Terms by us. If you don’t agree to these Terms, you may not use the Website.
YAMA may modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of any changes, such as by sending you a notification, posting a notice on the Website, or updating the “Last Updated” date above. Your use of the Website following any revisions to the Terms will confirm your acceptance of the revised Terms. If you do not agree to any changes made to these Terms, you may not use the Website. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms incorporating such changes, or otherwise notified you of such changes.
Description of Services
The Website may make available access to certain products, applications and services, including downloadable, software-as-a-service (SaaS) software products, applications and services (collectively, the “Services”). In addition, the Website may make available access to photographs, graphics, images, videos, audio, text, data, content and other materials (“Materials”), including information about YAMA’s events and initiatives. You may be asked to enter into a separate End User License Agreement with YAMA as a condition of using the Services (the “EULA”). If you enter into the EULA, your use of the Services subject to the EULA, as well as all other rights, responsibilities and obligations with respect to such Services, will be governed by the EULA and these Terms. To the extent that there is any irreconcilable conflict between any term or condition of these Terms and those of the EULA, the terms and conditions of the EULA will take precedence.
The quality of the Website, including the streaming or download speed of Services or Materials, may be affected by a variety of factors, such as your location, the content being streamed or downloaded and the speed of your Internet connection. YAMA makes no representation or warranty regarding use of the Website.
What You Agree, Acknowledge, Represent and Warrant To
You represent and warrant that you will comply with all applicable laws, rules and regulations in connection with the use of your YAMA account and the Website. You also represent and warrant that you will not:
Interfere with or disrupt the operation of the Website or the servers or networks used to make the Website available, or violate any requirements, procedures, policies or regulations of such servers or networks or their providers;
Post, transmit or otherwise make available through or in connection with the Website any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment; Restrict or inhibit any other person from using the Website;
License, sublicense, transfer, assign, reproduce, duplicate, copy, sell, resell, distribute, or exploit for any commercial or production purposes the Website or any use of the Website; Reproduce, modify, rent, lease, loan, timeshare, sell, distribute or otherwise exploit all or any part of the Website, except as expressly authorized herein; Modify, adapt, make derivate works of, translate, reverse engineer, decompile or disassemble all or any part of the Website; Frame or mirror all or any part of the Website, or incorporate all or any part of the Website into any product or service, without YAMA’s prior written consent;
Systematically download or store all or any part of the Website, or use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather Materials or Services or reproduce or circumvent the navigational structure or presentation of the Website. Notwithstanding the foregoing, YAMA permits public search engines to use spiders to copy publicly accessible Materials for the sole purpose of, and to the extent necessary for, creating publicly available searchable indices of the Website;
Remove any copyright, trademark or other proprietary rights notice from the Website;
In connection with the Website (a) defame, threaten, abuse or harass any person, or otherwise violate the legal rights of any person or entity, including any copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right; (b) harvest or collect personally identifiable information from or about any person; (c) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity; or (d) engage in any fraudulent or otherwise unlawful conduct.
Represent, imply or otherwise indicate, in any manner, an endorsement of you or your materials, or any connection or affiliation between you and YAMA; or
Engage in any other activity prohibited by these Terms or that is reasonably deemed by YAMA to be in conflict with the spirit or intent of these Terms.
You represent that you are fully able and competent to enter into the obligations and make the representations and warranties in these Terms, and to abide by and comply with these Terms.
You also represent that you are at least 18 years of age, or an emancipated minor, or possess legal parental or guardian consent.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Website.
You acknowledge and agree that YAMA may, in its sole discretion and without prior notice (a) revoke or suspend any or all rights granted in these Terms, terminate or suspend your right to use the Website or any portion thereof, and/or block or prevent your future use of the Website or any portion thereof, and (b) modify, suspend or discontinue, temporarily or permanently, the Website or portions thereof. Upon any such suspension or termination, your right to use the Website will immediately cease. You agree that we will not be liable for any such suspension or termination, or any such modification, suspension, or discontinuance of the Website or any portions thereof.
License to Submissions
For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
If you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Website or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such feedback is not confidential and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place YAMA under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Website, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
We and our licensors, as applicable, own the Website. The Website is protected by proprietary rights and laws.
Trade names, trademarks and service marks on the Website are owned by us or our licensors, as applicable. These trade names, trademarks and service marks, whether registered or unregistered, may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Website should be construed as granting any right to use any such trade names, trademarks or service marks without the owner’s prior written consent.
Third Party Materials
In addition, you acknowledge that your use of the Website may involve public or other third-party hardware, networks, servers or other resources (including your own device), and the transmission of communications through or using such resources. YAMA is not responsible or liable for any such resources, or for any communications transmitted through or using such resources.
You agree to indemnify, defend, and hold harmless YAMA and its affiliates, and its and their members, employees, licensors, and suppliers (collectively called the “YAMA Parties”) from and against all claims, liabilities, damages, judgments, awards, losses, costs and expenses (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Website; (b) any products, applications, services, photographs, graphics, images, videos, audio, text, data, content and other materials that you post, upload, use, receive, send, distribute, store or otherwise transmit through or using the Website, including any Submission; (c) any violation or alleged violation by you of these Terms or, if applicable, the EULA; (d) any violation or alleged violation by you of the rights of another, including without limitation any intellectual property, publicity, confidentiality, privacy, or propriety right; or (e) any violation or alleged violation by you of any applicable law or regulation, whether in the United States or anywhere else in the world.
THE WEBSITE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU ACKNOWLEDGE THAT NO ADVICE OR INFORMATION MADE AVAILABLE BY YAMA, WHETHER ORAL OR WRITTEN, WILL CREATE ANY REPRESENTATION OR WARRANTY. THE YAMA PARTIES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES IN CONNECTION WITH THE WEBSITE, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
WITHOUT LIMITING THE FOREGOING, NO YAMA PARTY REPRESENTS OR WARRANTS THAT THE WEBSITE OR ITS OPERATION WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, PRIVATE, SECURE, ACCURATE, RELIABLE OR FREE FROM DEFECTS OR ERRORS, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT YOUR COMMUNICATIONS THROUGH OR USING THE WEBSITE WILL BE DELIVERED TO THEIR INTENDED RECIPIENTS.
Limitation on liability
TO THE EXTENT ALLOWED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OR, IF APPLICABLE, IN THE EULA, OR ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, (A) IN NO EVENT SHALL ANY YAMA PARTY BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATING TO LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE, LOSS OR INTERCEPTION OF DATA, INABILITY TO USE THE WEBSITE, OR ANY THIRD PARTY MATERIALS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE, HOWEVER CAUSED, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR OTHER LEGAL THEORY, EVEN IF A YAMA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) THE ENTIRE AGGREGATE, COLLECTIVE LIABILITY OF THE YAMA PARTIES ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR OTHERWISE), IF ANY, SHALL NOT EXCEED THE GREATER OF ONE U.S. DOLLAR (US$ 1.00) OR THE AMOUNT ACTUALLY PAID BY YOU TO YAMA, IF ANY, TO USE THE WEBSITE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE IS TO STOP USING THE WEBSITE.
Applicable law may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
Governing Law, Jurisdiction, Venue and Related Issues
These Terms and, if applicable, the EULA, and all matters arising out of or relating to the foregoing, are to be construed in accordance with and governed by the internal laws of the State of New York, without giving effect to any choice-of-law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the parties. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR, IF APPLICABLE, THE EULA, OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND YAMA, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT YAMA AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY SUCH ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by these Terms. The Consumer Arbitration Rules are available online at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425&revision=latestreleased. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of these Terms and, if applicable, the EULA, and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms and, if applicable, the EULA, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
In choosing to use the Website, you do so on your own initiative and at your own risk. The Website, including the Services, are controlled or operated (or both) from the United States, and are not intended to subject YAMA to any non-U.S. jurisdiction or law. You must comply with all applicable laws, rules and regulations in connection with using the Website, including the Services. We may limit the Website’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time. Not all products or services described on the Website are available in all states or territories.
Without limiting the foregoing, you are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
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 Website infringe your copyright, you (or your agent) may send to YAMA a written notice by mail or e-mail, requesting that YAMA remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to YAMA a counter-notice. 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 YAMA’s DMCA agent, Eugene DeVillamil, as follows: By mail to Eugene DeVillamil at YAMA Industrials, Inc., 387 Park Ave. South 5th Floor, New York, NY 10016 Attn: Eugene DeVillamil; or by e-mail to [email protected].
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the websites
GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that YAMA does not endorse any of the products or services listed at such sites.
Notice for California Residents
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Website, please contact us by writing to YAMA Industrials, Inc., 387 Park Ave. South 5th Floor, New York, NY 10016, California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Entire Agreement; Miscellaneous
These Terms (and, if applicable, the EULA), together with all policies and agreements referred to therein, constitute the entire agreement between you and YAMA concerning their subject matter and supersede all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements and communications, whether oral or written, relating to such subject matter and all past courses of dealing or industry custom. If any provision of these Terms or, if applicable, the EULA, is held to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms or the EULA, as applicable, and shall not affect the validity and enforceability of any remaining provisions. You may not assign, transfer or sublicense any or all of your rights or obligations under these Terms or, if applicable, the EULA, without our express prior written consent, and any such assignment, transfer or sublicense shall be void. We may assign, transfer or sublicense any or all of our rights or obligations under these Terms or the EULA without restriction. Neither these Terms nor, if applicable, the EULA, create or shall be construed to create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and YAMA. No waiver by either party of any breach or default under these Terms, or, if applicable, the EULA, will be deemed to be a waiver of any preceding or subsequent breach or default. Without limitation, a printed version of these Terms or the EULA and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms or the EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. YAMA will not be responsible for any failure to fulfill any obligation due to any cause beyond its control, including without limitation due to acts of God, natural disasters, shortage of supplies (including but not limited to electronic or digital service suppliers), transportation difficulties, labor disputes, riots, war, fire and epidemics.
If you have any questions, or to provide any notice to us, please do not hesitate to contact us at [email protected]. Because email communications are not always secure, please do not include credit card information or other sensitive information in your emails to us.
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