Terms of Sale And End-User License Agreement

Terms of Sale and Use and End-User License Agreement

Last updated: December,2023

PLEASE READTHIS AGREEMENT (this "Agreement") CAREFULLY BEFORE ACCESSING OR USINGTHE YOUSHIE MOBILE APP PLATFORM. BY ACCESSING OR USING THE PLATFORM (as hereinafter defined), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. The Platform and Agreement on Terms of Sale and Use

These are the terms of sale, use and service (the “Terms”) which governs the relationship and serves as an agreement between you and the company that you represent (the “User”, “Client”, “you” or “your”) and our company, Youshie, Inc. (“us” or “we” or “Youshie”).  These Terms set forth the terms and conditions by which you may use the Youshie Mobile App SaaS Platform and all associated websites, services, products, software, documentation and content, including, without limitation, the iOS App and the Android App (collectively, the “Apps”) and the Youshie Dashboard (all of the foregoing herein collectively referred to as the “Platform”). For purposes of these Terms, “you” and “your” means you or any other member of your organization as the user of the Platform.

As these Terms form a legally binding agreement between you and us, please review them thoroughly. We are happy to address any questions or concerns that you may have.  Please submit any questions or concerns to us via the Contact Us option on our website.

If you are using the Platform on behalf of a business or entity, you represent and warrant that (i) you are authorized to do so on behalf of that business or entity, (ii) you have the authority to bind the business or entity to these Terms on the business’ or entity’s behalf, (iii) the business or entity is legally responsible and liable for your use of the Platform, (iv) the business or entity is legally responsible and liable for all other associated users of your account, including any employees, contractors or agents, and (v) the terms “you” and “your” includes you and that business or entity.

ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A CLAUSE THAT CONTAINS A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. OTHER THAN FOR THE SPECIFIC EXCEPTIONS SET OUT IN THE ARBITRATION CLAUSE, YOU AGREE THAT ANY DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION.  YOU ALSO AGREE THAT YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

2. Acceptance of the Terms, Consent to Changes and Fees

By using the Platform, you agree that a binding contract between you and us is formed based on these Terms and that you agree to comply with these Terms. You also agree that use of the Platform is subject to, and requires compliance with, our Privacy Policy which is incorporated herein by reference and which terms you also consent to. User acknowledges and agrees that we may collect, store, and process personal data and other information provided by you in connection with your use of the Platform.

From time to time, including when the Platform is updated or when there are regulatory changes, we will amend these Terms. In such cases, we will use commercially reasonable efforts to notify all users of any material changes to these Terms. Notwithstanding the foregoing, it is your responsibility to review these Terms regularly to check for any such changes. The “Last Updated” date contained in these Terms is the effective date of the most recent changes. Your continued use of the Platform after the date of the new Terms constitutes your acceptance of the new Terms. If you do not agree to the new Terms, you must stop using the Platform.

Client agrees to pay Youshie a monthly subscription fee and transaction fee, if applicable (collectively, the “Subscription Fee”) based on the advertised rate at the time of signup for the Platform and based on the tier of service selected, plus applicable taxes, due and payable monthly.  The Subscription Fee shall be fixed for the first twelve months of the term of this Agreement. Thereafter, Youshie shall be entitled to revise the Subscription Fee based on the prevailing rate at the time charged by Youshie for use of the Platform for the tier of service subscribed for.

3. Maintenance, Commitment Level and System Monitoring

MAINTENANCE WINDOWS: Youshie and/or its third-party hosting or telecommunications vendor(s) may perform system maintenance, from time to time(“Maintenance Windows”). Youshie will make reasonable efforts to minimize any disruptions to the Platform during these Maintenance Windows. You understand and agree that there may be instances where Youshie and/or its third-party hosting or telecommunications vendor(s) need to interrupt access to the Platform without notice in order to protect the integrity of the Platform due to security issues, virus attacks, spam issues or other unforeseen circumstances.

COMMITMENT LEVEL: (a) Subject to paragraph (b), Youshie will provide 99%“availability” to the Platform during the Term, calculated on a monthly basis. If Youshie provides less availability in any given calendar month, Youshie shall credit ten (10%) percent of the Subscription Fee for such month to the Client to be applied against the Subscription Fee for the next month. You must notify Youshie in writing of both the date and the amount of time the Platform was unavailable (excluding any Maintenance Windows) within five (5) business days of the end of the month in which unavailability occurred. Youshie will confirm the information provided in such notice. The credits described above shall be the sole and exclusive remedy to you for any unavailability. Except as expressly set forth herein, any remedy you may receive pursuant to this section does not relieve you, or allow a set-off, of any other payment obligations to Youshie under this Agreement. (b) Youshie may utilize reputable third-party hosting providers for the hosting and infrastructure of the Platform. In the event of a hosting provider outage or service interruption, Youshie shall make commercially reasonable efforts to notify you of the issue and to work with hosting provider to restore service as soon as possible.

SYSTEM MONITORING: Youshie will monitor performance indicators on the systems and network infrastructure (its own and that of third-party suppliers)in order to gauge the overall performance of its hosting services and will take reasonable steps to address systems and network infrastructure as required to maintain application performance. Youshie will use an internal system to measure whether the Platform is available, and you agrees that this system will be the sole basis for resolution of any dispute that may arise between you and Youshie regarding this Agreement. Youshie will not systematically monitor User Content, but Youshie reserves the right to review User Content from time to time in its discretion to ensure the performance of the systems, network infrastructure and the Platform.

We continually strive to ensure that the Platform operates free from errors and that the information shown within the Platform is accurate. Unfortunately, sometimes the Platform may contain typographical errors, omissions and / or inaccuracies, including, without limitation, errors relating to product descriptions, pricing, offers, availability and / or promotions. We reserve the right to correct any errors, omissions or inaccuracies and to change or update information within the Platform that is inaccurate at any time, all without prior notice to you.

4. Communication and Rights Regarding Subscriptions

Without limiting the generality of these Terms, we reserve the right to limit or refuse any subscription for the Platform. In addition, we reserve the right to cancel any subscription if we find evidence of fraud or other violation of these Terms.

By using the Platform, you consent to our communication to you of the status of your subscription and other matters related to your subscription. We are not responsible for inaccuracies or message delivery failures due to unforeseen circumstances or events that are beyond our control.

5. Your Use of the Platform

Your use of the Platform is subject to these Terms and all applicable laws and regulations.  As such, you agree not to:

• access or use the Platform unless you are fully able and legally competent to agree to these Terms;
• sell, transfer, license, or distribute, in whole or in part, any portion of the Platform or any derivative works thereof;
• make unauthorized copies, translate, adapt, modify, reverse engineer, decompile, disassemble or create any derivative works of the Platform or its contents, including any documentation, files or tables (or any portion thereof) or attempt to determine any source code, algorithms, methods or techniques included in the Platform or any derivative works thereof;
• market the use of the Platform for a fee or charge;
• interfere with the proper working of the Platform, including, without limitation, disrupting our website or any networks connected to the Platform, or bypass any measures we may use to prevent or restrict access to the Platform, or cause undue strain on the servers which host the Platform;
• use the Platform to develop a competing software or service;
• remove or modify any proprietary notices or labels on the Platform;
• incorporate the Platform or any portion thereof into any other program or product;
• use automated scripts or similar processes to collect information from or otherwise interact with the Platform;
• falsely state or otherwise misrepresent you or your affiliation with any person or entity;
• intimidate or harass any other user or non-user, or promote sexually explicit material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or any other prohibited ground;
• use or attempt to use another user’s account without our consent;
• create a false identity on the Platform;
• use the Platform to upload, transmit, distribute, store or otherwise make available in any way files that contain viruses, trojans,     worms, logic bombs or other material that is malicious or technologically harmful;
• post any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation;
• post any personal identifiable information of any other person or entity, including, without limitation, their addresses, phone numbers, email addresses, passport numbers or credit card numbers;
• post any material which may or does infringe any copyright, trademark or other intellectual property or privacy rights of any other person or entity;
• post any material which is obscene, offensive, hateful, pornographic, inflammatory or defamatory of any person or entity;
• post any material that would constitute, encourage or provide instructions for a criminal offence, dangerous activities or self-harm;
• post any material that is designed to provoke or antagonize people, including trolling and bullying, or is intended to harm, hurt, harass, scare, distress, embarrass or upset any other person;
• post any material that contains a threat of any kind, including threats of physical violence;
• post any material that you are not properly licensed to provide; or
• post material that, in our sole judgment, is objectionable or which may expose us or other users to any harm or liability of any type.

If we discover content that, in our sole discretion, violates any of the foregoing requirements, we reserve the right, without prior notice, to remove or disable access to such content and / or to cancel your subscription.

6. Your Account

To use the Platform, you are required to create an account with us. If any of the account information you provide to us changes, please be sure to update your account profile to keep the information current and complete. Please keep your account password confidential. If someone not authorized by you accesses your account, or if you suspect that someone has accessed your account without your authorization, please contact us immediately through the ‘Contact Us’ option on our website. You also agree that you are responsible (to us and to others) for any activity that occurs under your account.

We reserve the right to disable your account at any time if your use violates these Terms in any way or if the activities which occur on your account, in our sole discretion, might cause damage to or impair the Platform, infringe or violate the rights of any third party or violate any applicable laws or regulations.

If you would like to delete your account, please contact us using the submission form on our website. You can reactivate your account by similarly contacting us, however your content or information that you previously posted may not be able to be retrieved.

7. Intellectual Property Rights

By using the Platform, you agree to the terms of our Legal and Copyright Policy and you acknowledge that Youshie retains all right, title, and interest in and to the Platform, including all intellectual property rights. This Agreement does not convey any ownership rights to User. You also agree not to use any trademarks, services marks, logos or other proprietary designations of Youshie without our prior written consent.

8. Platform Content

All content on the Platform(other than content uploaded by you, such as product content), including, without limitation, text, images, graphics, illustrations, logos, patents, trademarks, copyrights, service marks, photographs, audio, videos, ‘look and feel’ of the Platform, and all intellectual property rights related thereto (collectively, the “Platform Content”), are either owned or licensed by us. Use of the Platform Content for any purpose not expressly permitted by these Terms is strictly prohibited. You agree not to download, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise use the Platform Content for any purpose whatsoever without our (or our licensor’s) prior written express consent, which consent may be withheld for any reason whatsoever.

Subject to these Terms, you are granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, North American license to access and use the Platform and to access the Platform Content solely for your use. You agree that this license may be terminated by us at any time and for any reason or no reason, and we reserve the rights not expressly granted herein in the Platform and the Platform Content, on either our behalf, or on behalf of the Licensor / owner of such content.

We make no representations, warranties or guarantees, whether express or implied, that any Platform Content is accurate, complete or up to date. We have no control over the contents of any third-party site or resource and where the Platform Content contains links to such third-party sites and resources, the links are provided for informational purposes only. Accordingly, such third-party links should not be interpreted as approval by us of those linked websites or information you may obtain from them. You also agree that we have no obligation to pre-screen, monitor, review, or edit any content posted by you and other users on the Platform(including user ratings, reviews and comments).

9. User-Generated Content

Users of the Apps may be permitted to post, upload or otherwise submit comments pertaining to products available on the Platform (collectively, “User Content”).

You warrant and agree that User Content created by your users will comply with these Terms and that you will monitor such content. You further agree that you will be liable to us and indemnify us for any breach of this warranty, including, without limitation, bearing responsibility for any loss or damage we suffer as a result of your breach of warranty.

Any User Content will be considered non-confidential and non-proprietary.

In addition, you further grant us a royalty-free license to use your username and any other identifying information that you have provided to us to identify you as the source of any of your User Content.

All of the rights you grant in your User Content in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of third-party services will not have any separate liability to you or any other third party for User Content posted or used on such third-party service via the Platform.

Waiver of Rights to User Content. Users of the App posting User Content, waive any and all rights of privacy, publicity or other similar rights in connection with your User Content or any portion thereof.  You further agree to waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also hereby agree to waive and never assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in any User Content you post through the Platform, to the extent any such moral rights are not transferable or assignable.

We reserve the right to delete, edit, or refuse to post your User Content at our sole discretion, if, in our opinion, your post does not comply with these Terms or in response to complaints from other users or third parties, with or without notice and without any liability to you.

We do not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will we be liable in any way for any User Content.

Any feedback that you provide to us, including, without limitation, comments, suggestions for improvements, product features, new products, product modifications or enhancements, technologies, computer code or other materials (collectively, “Feedback”),then regardless of what your accompanying communication may say, the following shall apply: (i) we have no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason, (ii)Feedback is provided on a non-confidential basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way, and (iii) you irrevocably grant us perpetual and unlimited permission to use and exploit the Feedback or any part thereof (and whether as provided or as modified) for any purpose and without restriction, free of charge and without attribution of any kind.

10. Indemnity

You agree to defend, indemnify, and hold harmless us, our parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents and advisors from any and all claims, liabilities, costs, and expenses, including, but not limited to, legal fees and expenses, arising out of a breach by you or any user of your account of these Terms or arising out of a breach of your obligations, representation and warranties under these Terms.

11. EXCLUSION OF WARRANTIES

NOTHING IN THESE TERMS SHALL AFFECT ANY STATUTORY RIGHTS THAT YOU CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE AND ARE LEGALLY ALWAYS ENTITLED TO.

THE SERVICES ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OR REPRESENTATION TO YOU WITH RESPECT TO THEM. IN ADDITION, WE DO NOT REPRESENT OR WARRANT TO YOU THAT:

• YOUR USE OF THE PLATFORM WILL MEET YOUR REQUIREMENTS;
• ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE; AND
• DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE PLATFORM WILL BE CORRECTED.

NO CONDITIONS, WARRANTIES OR OTHER TERMS (INCLUDING ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR CONFORMANCE WITH DESCRIPTION) APPLY TO THE SERVICES EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THESE TERMS.WE MAY CHANGE, SUSPEND, WITHDRAW OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF THE PLATFORM FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE.

12. LIMITATION OF LIABILITY

NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

SUBJECT TO THE PARAGRAPH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR:

• ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM OR THIS AGREEMENT;
• ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY);
• ANY LOSS OF GOODWILL;
• ANY LOSS OF OPPORTUNITY OR BUSINESS INTERRUPTION;
• ANY LOSS OF USE OF THE PLATFORM OR OTHER INTANGIBLE LOSSES, REGARDLESS OF THE THEORY OF LIABILITY;
• ANY LOSS OF DATA SUFFERED BY YOU;
• ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY YOU; OR
• ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF:

·       ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OFANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND US OR BETWEEN YOU AND ANY USER OF THE APPS OR BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE PLATFORM;

·       ANY CHANGES WHICH WE MAY MAKE TO THE PLATFORM, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE PLATFORM (OR ANY FEATURES WITHIN THE PLATFORM);

·       THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OFTHE PLATFORM;

·       YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR

·       YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.

ANY OTHER LOSS WILL BE LIMITED TO THE AMOUNT PAID BY YOU TO US WITHIN THE LAST 12 MONTHS.

THESE LIMITATIONS ON OUR LIABILITY TO YOU SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

YOU ARE RESPONSIBLE FOR ANY INTERNET OR MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF THE PLATFORM, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE PLATFORM.

TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE US AND OUR AFFILIATES AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

13. Other Terms

Open Source. The Platform may contain certain open-source software. Each item of open-source software is subject to its own applicable license terms.  

Entire Agreement. These Terms constitute the whole legal agreement between you and us and governs your use of the Platform and your purchase of products and services from us, and completely replaces any prior agreements between you and us in relation to the Platform.

Term and Termination. This agreement shall remain in effect until terminated. Either party may terminate this agreement at any time without cause, by providing written notice to the other party. Such termination shall be effective as of the last day of the next billing cycle for the Platform, and you agree to pay for such services until the effective date of termination. Upon termination, your access to the Platform will be terminated, and you shall immediately cease all use of the Platform. You also acknowledge that the Apps will no longer operate following termination. Notwithstanding any other provision of this agreement, sections 5, 7, 10, 11, 12 and 13 of this Agreement shall survive termination and shall continue in effect following termination.

Links. If you wish to link to our homepage, you may do so provided that the website you are linking complies in all respects with the content guidelines set out in these Terms.  In addition, you cannot link to our website in any way that might suggest any form of association, approval or endorsement by us where none exists.  Notwithstanding the foregoing, we reserve the right to withdraw linking permission without notice.  ‍

No Waiver. No failure by us to insist upon or enforce any provision of these Terms shall be construed as a waiver of any provision or right.

Security.  It is your responsibility to configure your technology to access the Platform in accordance with these Terms, including, without limitation, using appropriate virus protections software.

Severability. If any court of law having jurisdiction rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of these Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.

Applicable Law. You agree that the laws of the Province of Ontario, Canada govern any use of the Platform, without regard to rules relating to conflict of laws. The courts of the Province of Ontario shall have exclusive jurisdiction over all claims, and the United Nations Convention on Contracts for the International Sales of Goods shall not apply.

ARBITRATION AND CLASSACTION WAIVER. Please review this section carefully as it contains an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). If you disagree with this arbitration agreement, you may opt out of the arbitration agreement by following the opt out procedure described below.

Informal Process First: If there is any dispute between you and us, you agree to contact us and make a good faith effort to resolve the dispute before resorting to more formal means of resolution, including any court action.

Arbitration Agreement: Should the informal resolution process not resolve the dispute in whole or in part, any remaining dispute (hereinafter referred to as a “Claim”) relating in any way to your use of the Platform, or relating in any way to the communications between you and us or to the purchase of products or services from us, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and us. However, this arbitration agreement does not govern any Claim by us for infringement of our intellectual property or access to the Platform that is unauthorized or exceeds authorization granted in these Terms or bars you from making use of applicable small claims court procedures in appropriate cases. If you are an individual, you may opt out of this arbitration agreement within thirty (30) days of the first date you accessed or used the Platform by following the procedure described below.

You agree that the Ontario Arbitration Act (the “Act”) governs the interpretation and enforcement of this provision, and that you and us are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.

If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration to our address posted on our website.

Payment of all filing, administration and arbitrator fees will be governed by the applicable arbitration rules as set out in the Act.

The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.

If you do not want to arbitrate disputes with us and you are an individual, you may opt out of this arbitration agreement by sending us an email within thirty (30) days of the first date you accessed or used the Platform.

Class Action Waiver. Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”).The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action or make an award to any person or entity not a party to the arbitration. Any claim that all or part of this class action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.

If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and us each waive any right to a jury trial.

App Stores. To the extent permitted by applicable law, the following supplemental terms shall apply when accessing the Platform through specific devices:

Notice regarding Apple. By downloading the Platform from a device made by Apple, Inc. (“Apple”) or from Apple’s App Store, you specifically acknowledge and agree that:

• These Terms are between you and us; Apple is not a party to these Terms.
• The license granted to you hereunder is limited to a personal, limited, non-exclusive, non-transferable right to install the Platform on the Apple device(s) authorized by Apple that you own or control, subject to the Usage Rules set forth in Apple’s App Store Terms of Services.
• Apple is not responsible for the Platform or the content thereof and has no obligation whatsoever to furnish any maintenance or support services with respect to the Platform.
• Apple is not responsible for addressing any claims by you or a third party relating to the Platform or your possession or use of the Platform, including without limitation (a) product liability claims; (b) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
• In the event of any third-party claim that the Platform or your possession and use of the Platform infringes such third party’s     intellectual property rights, Apple is not responsible for the investigation, defence, settlement or discharge of such intellectual property infringement claim.
• You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you     are not listed on any U.S. Government list of prohibited or restricted parties.
• Apple and its subsidiaries are third party beneficiaries of these Terms and upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary hereof.
• We expressly authorize use of the Platform by multiple users through the Family Sharing or any similar functionality provided by Apple.

Google Play. By downloading the Platform from Google Play (or its successors)operated by Google, Inc. or one of its affiliates (“Google”), you specifically acknowledge and agree that:

• to the extent of any conflict between (a) the Google Play Terms of Services and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and (b) the other terms and conditions in these Terms, the Google Play Terms shall apply with respect to your use of the Platform that you download from Google Play, and

you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by us or you (or any other user) under these Terms or the Google Play Terms.