Welcome to YGYI.com by (“YGYI” or “Company“)!
1.1. Effective Date.
The effective date of this Agreement is December 9, 2016.
Company recommends that you read the following terms and conditions carefully.
By accessing or using the YGYI website and any related software, plug-ins or
mobile applications made available by YGYI (together, the “Website“), however accessed or
used, you agree to be bound by these terms (the “Terms of Service” or the “Agreement“). We encourage you to print the Agreement or save
it to your computer for reference.
have read and understood, and agree to be bound by, this Agreement and YGYI
Policy“), which is incorporated into this Agreement by reference. The
Associate Application and Agreement and Policies and Procedures for
your use of the Website, as defined above.
Your distributor relationship, if any, with Company is and continues to
be covered by your Associate Application and Agreement and CompanyÕs Policies
and Procedures, as amended (collectively, the “Distributor Agreements“).
The Distributor Agreements are incorporated herein by reference. To the extent any conflict exists
between this Agreement and the Distributor Agreements, the terms of the
Distributor Agreements shall govern.
Permission Without Agreement. If you do not understand this Agreement, or
the Website, and you must immediately cease accessing or using the Website.
and Remedies. These terms contain a mandatory arbitration
of disputes provision that requires the use of arbitration on an individual
basis to resolve disputes, rather than jury trials or class actions, and also
limits the remedies available to you in the event of a dispute. See Section
24 (Dispute Resolution) for full details.
Policy. By using the Website, you consent to the collection and use of
applicable laws, rules, and regulations change frequently. YGYI reserves the
to you (including by posting a new version, or sending you a change notice). It
unacceptable, you must immediately cease accessing the Website. Unless YGYI
and not to information collected under any earlier versions of the Privacy
accessing and/or using the Website, including by doing so after accessing this
Agreement, you represent and warrant that you are either (1) at least 18 years
old, and are otherwise legally qualified to enter into and form contracts under
applicable law or (2) between the ages of 13 and 18 and have submitted a signed
parental and/or guardian consent form to YGYI.
4.2. Corporate Use.
If you are using the Website on behalf of a company, you further represent and
warrant that you are authorized to act and enter into contracts on behalf of
Platform. Without limitation, you agree that the Website is merely a
technology platform, and that you use the Website at your own risk and pursuant
to Section 9 (Assumption of Risk; Release).
Subject to your compliance with these Terms of Service, YGYI grants you a
non-exclusive, non-sublicensable, revocable as stated
in this Agreement, non-transferable license to access the Website, and to use
the Website. No part of the Website, including the Website, may be reproduced,
duplicated, copied, modified, sold, resold, distributed, transmitted, or
otherwise exploited for any commercial purpose without the prior express
written consent of YGYI. All rights not expressly granted in this Agreement are
reserved by YGYI. Without limitation, this Agreement grants you no rights to
the intellectual property of YGYI or any other party, except as expressly
stated in this Agreement. The license granted in this section is conditioned on
your compliance with this Agreement. Your rights under this section will
immediately terminate if, in the sole judgment of YGYI, you have breached any
provision of this Agreement.
Updates. YGYI reserves the right, in its sole discretion, to update,
modify, or remove the features, functionality, or other aspects of the Website
at any time.
Reliance on Third Party Content. Opinions, advice, statements, or other
information made available through the Website by third parties are those of
their respective authors, and should not necessarily be relied upon. Those
authors are solely responsible for their content. YGYI does not: (i) guarantee the accuracy, completeness, or usefulness of
any third-party information accessible on or through the Website; or (ii)
adopt, endorse, or accept responsibility for the accuracy or reliability of any
opinion, advice, or statement made by a third party through the Website. Under
no circumstances will YGYI be responsible for any loss or damage resulting from
your reliance on information or other content posted through the Website
transmitted to or by any third party.
of Risk; Release. You knowingly and freely assume all risk
when using the Website. You, on behalf of yourself, your personal
representatives, and your heirs, voluntarily agree to release, waive,
discharge, hold harmless, defend, and indemnify Company and its stockholders,
officers, directors, employees, agents, affiliates, consultants,
representatives, sublicensees, successors, and
assigns (collectively, the “Company Parties“) from any and all claims, actions, or losses for bodily injury,
property damage, wrongful death, emotional distress, loss of privacy, or other
damages or harm, whether to you or to third parties, that may result from your
use of the Website.
Account, Accuracy, and Security.
10.1. User Account. To use
the Website, you must register and create a user account (“Account“). During the Account
creation process, you will be asked to provide information that personally
identifies you, including your Distributor ID (“Personal Information“).
10.2. Profile Viewable By Members. All users of the Website have Profiles,
which include some of the Personal Information provided during Account
registration. In some circumstances, such as a forum for Distributors, these
Profiles may be accessible by other Distributors who have registered with the Website,
created Accounts, and connected with each other. However, YGYI cannot guarantee
that the Personal Information in your Profile will remain private to registered
users of the Website.
10.3. Account Information
Accuracy. You represent and warrant that all user information you provide
in connection with your Account and your use of the Website is current,
complete, and accurate, and you agree that you will update that information as
necessary to maintain its completeness and accuracy by updating your personal
Profile. You agree that you will not submit any fake content (including without
limitation any Account, username, likeness, or Profile) to willfully and
credibly impersonate another person, whether actual or fictitious. As a
non-exhaustive example, you agree that you will not upload a Profile image that
is not your likeness, or provide inaccurate information about certifications.
If YGYI believes in its sole discretion that the information you provide is not
current, complete, or accurate, YGYI has the right to refuse you access to the Website,
or to terminate or suspend your access at any time, or both. For additional
information, see the Section concerning “User Ability to Access, Update,
10.4. No Pseudonyms. You
must use your real name on YGYI; pseudonyms are not allowed. Any use of a
pseudonym violates Section 10.3 (Account Information Accuracy) and is
cause for suspension or deletion of your Account.
10.5. Account Security. You
will also be asked to provide a username, password, and possibly other
information to secure your Account. You are entirely responsible for
maintaining the confidentiality of your password. You may not use the username
or password of any other person, nor may you share your username and password,
nor may you circumvent any authentication mechanism requiring the entry of
usernames, passwords, or any other information to gain unauthorized access to
the Website. You agree to notify YGYI immediately of any unauthorized use of
your Account. YGYI shall not be liable for any loss that you incur because of
someone else using your Account, either with or without your knowledge. You may
be held liable for any losses incurred by YGYI, its affiliates, officers, directors,
employees, consultants, agents, and representatives due to someone else’s use
of your Account.
with Other Users. Certain parts of the Website may facilitate
communication between users, such as a blog, forum, reviews, or comments section.
You are solely responsible for your interactions with other Distributors and
users. You acknowledge and understand that YGYI has not, and does not, in any
way guarantee that it will: (a) screen its users; (b) inquire into the
backgrounds of its users; or (c) review or verify the statements of its users.
You agree to exercise reasonable caution in all interactions with other users,
particularly if you decide to meet another user in person. YGYI does not
represent, warrant, endorse, or guarantee the conduct of its users. In no event
shall YGYI be liable for indirect, special, incidental, or consequential
damages arising out of or relating to any user’s conduct in connection with
such user’s use of the Website, including, without limitation, bodily injury,
property damage, wrongful death, emotional distress, loss of privacy, or any
other damages resulting from communications or meetings between users.
to Receive Electronic Communications from Company. By registering for the Website
and providing your name, email, postal or residential address, and/or phone
number through the Website, you expressly consent to receive electronic and
other communications from YGYI, over the short term and periodically, including
email and short-message Service (“SMS” or “text message”)
communications. These communications will be about the Website, new product
offers, promotions, and other matters. You may opt out of receiving electronic
communications at any time by following the unsubscribe instructions contained
in each communication, or by sending an email to unsubscribe@YGYI.com. You
agree that these electronic communications satisfy any legal requirements that
communications or notices to you be in writing.
13.1. Credit Card Information.
If you wish to purchase any product or service made available through the
Services (each such purchase, a “Transaction“),
you may be asked to supply certain information relevant to your Transaction
including, without limitation, your credit card number, the expiration date of
your credit card, the 3-digit security code for your credit card, your billing
address and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE
THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED
IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant
to Company the right to provide such information to third parties for purposes
of facilitating the completion of Transactions initiated by you or on your
behalf. Verification of information may be required prior to the acknowledgment
or completion of any Transaction.
13.2. Reservation of Rights.
Company reserves the right, with or without prior notice, to do any one or more
of the following: (i) limit the available quantity of
or discontinue any product or service; (ii) impose conditions on the honoring
of any coupon, coupon code, promotional code or other similar promotion; (iii)
bar any user from making or completing any or all Transaction(s); (iv) refuse
to provide any user with any product or service; (v) change the fees and
charges in effect, or to add new fees and charges, by posting such changes or
providing notice to you.
13.3. Payment. You agree to
pay all charges that may be incurred by you or on your behalf through the Site,
at the price(s) in effect when such charges are incurred including, without
limitation, all shipping and handling charges. In addition, you remain
responsible for any taxes that may be applicable to your Transactions.
13.4. Refunds or Exchanges. Distributors, Preferred, and Retail
Customers of Company that need to return product for any reason, will be
required to follow the procedures as outlined in Section M of CompanyÕs
Policies and Procedures. Anyone failing to follow the procedures as described
will not be entitled to a refund from Company.
From time to time, Company may make certain products and services available
through the Service on a subscription-payment basis (each a
“Subscription”). The terms of this Section 14 apply to any
Subscriptions purchased by you.
14.1. Automatic Billing. If
your Subscription plan provides for Automatic Billing, you understand and agree
that Company will bill your Subscription fees automatically to the payment
method (e.g., credit card) you designate when signing up.
14.2. Automatic Renewal.
Unless you cancel your Subscription, your Subscription will renew automatically
at the end of its term. For example, if your Subscription requires payment on
the 1st day of every month, your credit card will continue to be
charged every month according to your Subscription plan until you cancel your
Subscription pursuant to Section 14.3 below.
14.3.1. How to
Cancel. To cancel your Subscription, you must either (1) log into the Website
with your Account and modify or cancel the Subscription, or (2) email Company
of Cancellation. Once your cancellation is confirmed by Company, your
Subscription will be terminated. If your pre-cancellation billing period was
paid up, then Company will not bill you further, but Company will not refund
you for any remainder of that term.
Party Websites. The Website may be linked with the websites of third
parties (“Third Party Websites“),
some of whom may have established relationships with YGYI and some of whom may
not. YGYI does not have control over the content and performance of Third Party
Websites. YGYI has not reviewed, and cannot review or control, all of the
material, including computer software or other goods or services, made
available on Third Party Websites. Accordingly, YGYI does not represent,
warrant, or endorse any Third Party Websites, or the accuracy, currency,
content, fitness, lawfulness, or quality of the information, material, goods,
or services available through Third Party Websites. YGYI disclaims, and you
agree to assume, all responsibility and liability for any damages or other
harm, whether to you or to third parties, resulting from your use of Third
16.1. User Content Defined.
“User Content” is any
content, material, or information, not including personally identifiable
information (e.g., first and last name, address, phone number, email address,
etc.), that you submit, upload, and/or post to, or transmit, display, perform,
or distribute through the Website, whether in connection with your use of the
Website or otherwise. This includes, without limitation, personal photos and
16.2. You Own Your User Content.
YGYI does not claim ownership of any User Content. You retain all right, title,
and interest, including without limitation all worldwide intellectual property
rights, in and to your User Content.
16.3. License of User Content.
submitting, uploading, or posting User Content in any form with, through, or to
the Website, you grant the Company Parties a royalty-free, perpetual,
non-exclusive, unrestricted, fully paid-up, worldwide, sublicensable,
revocable (as set forth in Section 6 (License) of this Agreement),
assignable license to copy or otherwise reproduce, modify, adapt, translate,
distribute, enhance, transmit, publicly display or perform, reformat, and/or
otherwise use User Content in connection with the operation of the Website, or
any other similar or related business, in any medium now existing or later
devised, including without limitation in advertising and publicity. You further
agree that the Company Parties may publish or otherwise disclose your personal
information in connection with their exercise of the license granted under this
section. You agree to waive, and waive, any claims arising from or relating to
the exercise by the Company Parties of the rights granted under this section,
including without limitation any claims relating to your rights of personal
privacy and publicity. You will not be compensated for any exercise of the
license granted under this section.
16.4. Your Representations About
User Content. You represent and warrant that you: (a) own all rights,
title, and interest in and to all User Content you submit, or are otherwise
authorized to grant the rights provided the Company Parties under this section;
or (b) have written consent, release, and/or permission of every identifiable
individual person in any User Content you submit to use the name and likeness
of every identifiable person in the User Content. You agree that you will not
submit any User Content that does not fully comply with YGYI’s prohibitions
against Objectionable Content, as detailed in Section 18 (Objectionable
16.5. Company’s Right to Reject
User Content. YGYI reserves the right, in its sole discretion, to reject
any User Content for any reason. The categories specified in Section 18
(Objectionable Content) and Section 19 (Prohibited Uses) are not
exhaustive lists of content that YGYI reserves the right to remove or deny.
Responsibility for Defamatory Comments.
17.1. You agree and understand that
you may be held legally responsible for damages suffered by other users or
third parties as the result of your remarks, information, feedback, or other
content posted or made available through the Website that is deemed defamatory
or otherwise legally actionable. Under Section 230 of the Federal
Communications Decency Act of 1996, YGYI is not legally responsible, nor can it
be held liable for damages of any kind, arising out of or in connection to any
defamatory or otherwise legally actionable remarks, information, feedback, or
other content posted or made available through the Website.
17.2. If you raise or file any
claim against YGYI for conduct that a Court of Competent Jurisdiction later
finds to constitute an “exercise of a publisher’s traditional editorial
functions,” or the legal equivalent, you agree to fully and immediately
compensate YGYI for all losses, liability, damages, costs, and expenses,
including without limitation all attorneys’ fees and expenses in defending the
action and resolving the matter. If you fail to compensate YGYI for any such
claim, you agree and authorize YGYI to report your Personal Information,
including without limitation your unpaid claim, to consumer credit reporting services,
collection agencies, and others.
Content. You agree that you shall not use the Website to upload, post,
transmit, display, perform, or distribute any content, information, or
materials that: (a) are libelous, defamatory, abusive, threatening, excessively
violent, harassing, obscene, lewd, lascivious, filthy, or pornographic; (b)
constitute child pornography; (c) solicit personal information from or exploit
in a sexual or violent manner anyone under the age of 18; (d) incite,
encourage, or threaten physical harm against another; (e) promote or glorify
racial intolerance, use hateful and/or racist terms, or signify hate toward any
person or group of people; (f) glamorize the use of illegal substances and/or
drugs; (g) advertise or otherwise solicit funds or constitute a solicitation
for goods or services; (h) violate any provision of this Agreement or any other
proprietary information; (j) are false or fraudulent; (k) contains images or
videos of individuals captured or posted without their consent; (l) promote
self-destructive behavior (including without limitation eating disorders or
suicide); or (m) are generally offensive, rude, mean-spirited, or in bad taste,
as determined by YGYI in its sole discretion (collectively, “Objectionable Content“). YGYI
disclaims any perceived, implied, or actual duty to monitor content made
available through the Website, and specifically disclaims any responsibility or
liability for information provided on the Website. Without limiting any of its
other remedies, YGYI reserves the right to terminate your use of the Website or
your uploading, posting, transmission, display, performance, or distribution of
Objectionable Content. YGYI, in its sole discretion, may delete any
Objectionable Content from its servers. YGYI intends to cooperate fully with
any law enforcement officials or agencies in the investigation of any violation
of this Agreement or of any applicable laws.
Uses. YGYI imposes certain restrictions on your use of the Website. Any
violation of this section may subject you to civil and/or criminal liability.
The following are expressly prohibited:
19.1. harassing or stalking any
person, or contacting any person who has requested not to be contacted
19.2. providing false, misleading,
or inaccurate information to YGYI or any other person in connection with the
19.3. impersonating, or otherwise
misrepresenting affiliation, connection, or association with, any person or
19.4. modifying or changing the
placement and location of any advertisement posted through the Website
19.5. harvesting or otherwise
collecting information about users, including email addresses and phone numbers
19.6. without express written
permission from YGYI, using or attempt to use any engine, software, tool,
agent, or other device or mechanism (including without limitation browsers,
spiders, robots, avatars, or intelligent agents) to harvest or otherwise
collect information from the Website for any use, including without limitation
use on Third Party Websites
19.7. accessing content or data not
intended for you, or logging into a server or account that you are not
authorized to access
19.8. attempting to probe, scan, or
test the vulnerability of the Website, or any associated system or network, or
breaching security or authentication measures without proper authorization
19.9. interfering or attempt to
interfere with the use of the Website by any other user, host, or network,
including (without limitation) by submitting malware or exploiting software
19.10. using the Website to send unsolicited
email, including without limitation promotions or advertisements for products
19.11. forging, modifying, or falsifying any
network packet or protocol header or metadata in any connection with, or
transmission to, the Website (for example, SMTP email headers, HTTP headers, or
Internet Protocol packet headers)
19.12. while using the Website, using
ad-blocking or other content-blocking software, browser extensions, or built-in
browser options designed to hide, block, or prevent the proper display of
19.13. attempting to modify, reverse-engineer,
decompile, disassemble, or otherwise reduce or attempt to reduce to a
human-perceivable form any of the source code used by the Company Parties in
providing the Website, including without limitation any fraudulent effort to
modify software or any other technological mechanism for measuring the number
of impressions generated by individual content and/or the overall service to
determine and/or audit advertising revenues and payments, if applicable
19.14. creating additional accounts to promote
your (or another’s) business, or causing others to do so
19.15. paying anyone for interactions on the
20.1. Compliance with Law.
20.1.1. You represent and warrant that, when using the
Website, you will obey all applicable laws and respect the intellectual
property rights of others. Your use of the Website is at all times governed by
and subject to copyright and other intellectual property laws. You agree not to
upload, post, transmit, display, perform, or distribute any content,
information, or other materials in violation of any third party’s copyrights,
trademarks, or other intellectual property or proprietary rights.
20.1.2. You represent and warrant that you are the
sole and exclusive owner of any User Content that you submit through the
Website. You shall be solely responsible for any violations of any laws and for
any infringements of third-party rights caused by your use of the Website. YGYI
users bear the sole burden of proving that content, information, or other
materials do not violate any laws or third-party rights.
20.2. Trademarks. YGYI, Youngevity, and the Youngevity
logos (collectively, the “Company
Marks“) are trademarks or registered trademarks of YGYI. Other
trademarks, service marks, graphics, logos, and domain names appearing anywhere
on, through, or in connection with the Website may be the trademarks of third
parties. Neither your use of the Website nor this Agreement grant you any
right, title, or interest in, or any license to reproduce or otherwise use, the
Company Marks or any third-party trademarks, service marks, graphics, logos, or
domain names. You agree that any goodwill in the Company Marks generated as a
result of your use of the Website will inure to the benefit of YGYI, and you
agree to assign, and do assign, all such goodwill to YGYI. You shall not at any
time, nor shall you assist others to, challenge YGYI’s right, title, or
interest in, or the validity of, the Company Marks.
20.3. Copyrighted Materials;
Copyright Notice. All content and other materials available through the
Website, including without limitation the YGYI logo, design, text, graphics,
and other files, and their selection, arrangement, and organization, are either
owned by YGYI or are the property of YGYI’s licensors and suppliers. Except as
explicitly provided, neither your use of the Website nor this Agreement grant
you any right, title, or interest in any such materials.
20.4. DMCA Policy.
20.4.1. As YGYI asks others to respect YGYI’s
intellectual property rights, YGYI respects the intellectual property rights of
others. YGYI follows the notice and takedown procedures in the Digital
Millennium Copyright Act (“DMCA“).
20.4.2. If you believe content located on or linked to
by the Website violates your copyright, please immediately notify YGYI by
emailed DMCA takedown notice (“Infringement
Notice“), providing the information described below. If YGYI takes
action in response to an Infringement Notice, it will make a good faith attempt
to contact the party who made the content available at the most recent email
address that party provided to YGYI.
20.4.3. Under the DMCA, you may be held liable for
damages based on material misrepresentations in your Infringement Notice. You
must also make a good-faith evaluation of whether the use of your content is a
fair use; fair uses are not infringing. (See 17 U.S.C. Section 107, available
at https://www.law.cornell.edu/uscode/text/17/107, and Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sep. 14,
2015), available at https://www.courtlistener.com/opinion/2937139/stephanie-lenz-v-universal-music-corp/.)
If you are not sure if content located on or linked to by the Website infringes
your copyright, you should first contact an attorney.
20.4.4. The DMCA requires that all Infringement Notices
must include the following:
A signature, electronic or physical, of the
copyright owner or a person authorized to act on their behalf;
An identification of the copyright claimed to
have been infringed;
A description of the nature and location of the
material that you claim to infringe your copyright, in sufficient detail to
permit YGYI to find and positively identify that material;
Your name, address, telephone number, and email
A statement by you: (i)
that you believe in good faith that the use of the material that you claim to
infringe your copyright is not authorized by law, or by the copyright owner or
such owner’s agent; and, (ii) under penalty of perjury, that all of the
information contained in your Infringement Notice is accurate, and that you are
either the copyright owner or a person authorized to act on their behalf.
20.4.5. Infringement Notices should be sent to firstname.lastname@example.org
with the subject line “DMCA Notice: Youngevity“.
20.4.6. YGYI will respond to all DMCA-compliant
Infringement Notices, including, as required or appropriate, by removing the
offending material or disabling all links to the offending material.
20.4.7. Disclosure. All received Infringement
Notices may be posted in full to the Lumen database (https://lumendatabase.org/),
previously known as the Chilling Effects Clearinghouse.
Limitation of Liability.
21.1. No Warranties. YGYI,
on behalf of itself and its licensors and suppliers, expressly disclaims any
and all warranties, express or implied, regarding the Website, arising by
operation of law or otherwise, including without limitation any and all implied
warranties of merchantability, fitness for a particular purpose,
non-infringement, no encumbrance, or title, in addition to any warranties
arising from a course of dealing, usage, or trade practice. Neither YGYI nor
its licensors or suppliers warrants that the Website
will meet your requirements, or that the operation of the Website will be
uninterrupted or error-free. YGYI disclaims all implied liability for damages
arising out of the furnishing of the Website pursuant to this Agreement,
including without limitation, mistakes, omissions, interruptions, delays,
tortious conduct, errors, representations, or other defects arising out of the
failure to the furnish the Website, whether caused by acts of commission or
omission, or any other damage occurring. YGYI shall not be liable for any
indirect, incidental, special, consequential, or punitive damages (including
without limitation damages for lost profits or lost revenues), whether caused
by the acts or omissions of YGYI, Company Parties, or YGYI users, or their
agents or representatives.
21.2. Your Responsibility for
Loss or Damage; Backup of Data.
21.2.1. You agree that your use of the Website is at
your sole risk. You will not hold YGYI or its licensors and suppliers, as
applicable, responsible for any loss or damage that results from your access to
and/or use of the Website, including without limitation any loss or damage to
any of your computers, mobile devices, including without limitations tablets
and/or smartphones, or data. The Website may contain bugs, errors, problems, or
21.2.2. Importantly, you acknowledge that a
catastrophic disk failure or other similar event could result in the loss of
all of the data related to your account. You agree and understand that it is
your responsibility to backup your data to your personal computer or external
storage device and to ensure such backups are secure.
21.3. Limitation of Liability.
no event shall YGYI or its licensors or suppliers be liable to you for any
claims arising from your use with the Website, including without limitation for
special, incidental, or consequential damages, lost profits, lost data or
confidential or other information, loss of privacy, costs of procurement of
substitute goods or services, failure to meet any duty including without
limitation of good faith or of reasonable care, negligence, or otherwise,
regardless of the foreseeability of those damages or of any advice or notice
given to YGYI or its licensors and suppliers arising out of or in connection
with your use of the Website. This limitation shall apply regardless of whether
the damages arise out of breach of contract, tort, or any other legal theory or
form of action. You agree that this limitation of liability represents a
reasonable allocation of risk and is a fundamental element of the basis of the
bargain between YGYI and you. The Website would not be provided without such
21.4. Application of Disclaimers.
above disclaimers, waivers, and limitations do not in any way limit any other
disclaimer of warranties or any other limitation of liability in any other
agreement between you and YGYI or between you and any of YGYI’s licensors and
suppliers. Some jurisdictions may not allow the exclusion of certain implied
warranties or the limitation of certain damages, so some of the above
disclaimers, waivers, and limitations of liability may not apply to you. YGYI’s
licensors and suppliers are intended third-party beneficiaries of these
disclaimers, waivers, and limitations. No advice or information, whether oral
or written, obtained by you through the Website or otherwise shall alter any of
the disclaimers or limitations stated in this section.
Representations and Warranties. You represent and warrant that your use of the
Website will be in accordance with this Agreement and any other YGYI policies,
and with any applicable laws or regulations.
23.1. Without limiting any
indemnification provision of this Agreement, you (the “Indemnitor“) agree to
defend, indemnify, and hold harmless YGYI and the Company Parties
(collectively, the “Indemnitees“) from and against any and all claims,
actions, demands, causes of action, and other proceedings (individually, “Claim“, and collectively,
“Claims”), including but not limited to legal costs and fees, and
providing sole and exclusive control of the defense of any action to YGYI,
including the choice of legal counsel and all related settlement negotiations,
arising out of or relating to: (i) the relationship
between you and YGYI, whether based in contract, tort, statute, fraud,
misrepresentation, or any other legal theory; (ii) your breach of this
Agreement, including without limitation any representation or warranty
contained in this Agreement; (iii) your access to or use of the Website; (iv)
your provision to YGYI or any of the Indemnitees of
information or other data; (v) your violation or alleged violation of any
foreign or domestic, international, federal, state, or local law or regulation;
or (vi) your violation or alleged violation of any third party’s copyrights,
trademarks, or other intellectual property or proprietary rights.
23.2. The Indemnitees
each have the individual right, but not the obligation, to participate through
counsel of their choice in any defense by you of any Claim as to which you are
required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior
written consent of the concerned Company Parties.
23.3. Without limitation, the Indemnitor also agrees to compensate YGYI for any and all
lost revenues, future lost profits, reasonable search costs, and any other
reasonable expenses resulting from any Indemnitor
violation of Section 19 (Prohibited Uses), including without limitation
any suspension of affiliate accounts or affiliate payment attributable to
fraudulent efforts to manipulate or otherwise modify reported impressions
generated by the Company Parties under any affiliate advertising agreement.
24.1. Binding Arbitration.
24.1.1. If you and YGYI cannot resolve a Claim through
negotiations, either party may elect to have the Claim finally and exclusively
resolved by binding arbitration. Any election to arbitrate by one party shall
be final and binding on the other(s).
24.1.2. You acknowledge that without this provision,
you would have the right to sue in court with a jury trial or to participate in
a class action.
24.1.3. The language in this Agreement shall be
interpreted in accordance with its fair meaning and not strictly for or against
24.1.4. For Distributors, the arbitration shall be
commenced and conducted pursuant to Section J9 of CompanyÕs Policies and
Procedures. For all other persons
and entities, and to the extent Section J9 is found to be unenforceable or
inapplicable to you, then you understand and agree that the following will
apply: The arbitration will
commence under the Commercial Arbitration Rules of the American Arbitration
Association (“AAA“), as
modified by this Agreement, available at the AAA website www.adr.org or by
calling the AAA at 1-800-778-7879. Except as otherwise provided for in this
Agreement, YGYI will pay the AAA filing, administration, and arbitrator fees.
If, however, the arbitrator finds that either the substance of your claim or
the relief sought is frivolous or brought for an improper purpose (as measured
by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you
will pay the arbitrator fees, in addition to any amount that exceeds the filing
fees. In that case, you also agree to reimburse YGYI for all payments disbursed
that are your obligation to reimburse under the AAA Rules. The arbitrator is
bound by the terms of this Agreement. All issues are for the arbitrator to
resolve, except that issues relating to the enforceability of the arbitration
provision are for a Court of Competent Jurisdiction to resolve. The arbitration
may be conducted in person, through document submission, through telephone, or
online. The arbitrator will issue a decision in writing, but need only provide a
statement of reasons if requested by a party. The arbitrator must follow
applicable law, and any award may be challenged if the arbitrator fails to do
so. YGYI may litigate to compel arbitration in court, to stay proceedings
pending arbitration, or to modify, confirm, vacate, or enter judgment on the
award entered by the arbitrator. The arbitrator shall award costs to the
prevailing party (including, without limitation, fees, expenses, and reasonable
attorneys’ fees) at any time during the proceeding and upon request from either
party, within 14 days of the arbitrator’s ruling on the merits.
24.2. Restrictions Against
Joinder of Claims.
24.2.1. You and YGYI agree that any arbitration
shall be limited to each Claim individually. You and YGYI agree that each may
only bring claims against the other in your or YGYI’s individual capacity and
not as a plaintiff or class member in any purported class or representative
24.2.2. If this specific provision is found to be
unenforceable in a Court of Competent Jurisdiction, the Claim will still be
finally and exclusively resolved by binding arbitration upon the election of
either party, and any election to arbitrate by one party shall be final and
binding on the other(s). In addition: (1) no arbitration shall be joined with
any other arbitration, and (2) there is no right for any Claim to be arbitrated
on a class-action basis or to employ class action procedures, and (3) there is
no right of authority for any dispute to be brought in a purported representative
capacity on behalf either of the general public or any other individuals.
24.3. Remedies in Aid of
Arbitration; Equitable Relief. This agreement to arbitrate will not
preclude you or YGYI from seeking provisional remedies in aid of arbitration,
including without limitation orders to stay a court action, compel arbitration,
or confirm an arbitral award, from a Court of Competent Jurisdiction.
Furthermore, this agreement to arbitrate will not preclude you or YGYI from
applying to a Court of Competent Jurisdiction for a temporary restraining
order, preliminary injunction, or other interim or conservatory relief, as
necessary. “Court of Competent
Jurisdiction” means any federal or state court: (1) that has
jurisdiction over the subject matter; and (2) that is located in the State of California.
24.4. Venue for any Judicial
24.4.1. This Agreement, including without limitation
this Agreement’s interpretation, shall be treated as though this Agreement were
executed and performed in the State of California, and shall be governed by and
construed in accordance with the laws of the State of California without regard
to its conflict of law principles. The language in this Agreement shall be
interpreted in accordance with its fair meaning and not strictly for or against
24.4.2. The proper venue for any judicial action
arising out of, relating to, or in connection with this Agreement will be the
state and federal courts located in or nearest to san Diego, California. The
parties stipulate to, and agree to waive any objection to, the personal
jurisdiction and venue of such courts, and further expressly submit to
extraterritorial service of process.
25.1. By Company. Without
limiting any other provision of this Agreement, YGYI reserves the right to, in YGYI’s
sole discretion and without notice or liability, deny use of the Website to any
person for any reason or for no reason at all, including without limitation for
any breach or suspected breach of any representation, warranty, or covenant
contained in this Agreement, or of any applicable law or regulation.
25.2. Automatic Termination Upon
Breach by You. This Agreement shall automatically terminate if you breach
any of this Agreement’s representations, warranties, or covenants. Such
termination shall be automatic, and shall not require any action by YGYI.
25.3. By You. You may
terminate this Agreement and your rights under it at any time, for any or no
reason at all, by providing to YGYI notice of your intention to do so, in the
manner required by Section 26 (Notices).
25.4. Effect of Termination.
25.4.1. Any termination of this Agreement automatically
terminates all rights and licenses granted to you under this Agreement,
including all rights to use the Website. Upon termination, YGYI may, but has no
obligation to, in YGYI’s sole discretion, rescind any services and/or delete
from YGYI’s systems all your Personal Information and any other files or
information that you made available to YGYI or that otherwise relate to your
use of the Website. Upon termination, you shall cease any use of the Website.
25.4.2. After termination, YGYI reserves the right to
exercise whatever means it deems necessary to prevent your unauthorized use of the
Website, including without limitation technological barriers such as IP
blocking and direct contact with your Internet Service Provider.
25.5. Legal Action. If YGYI,
in YGYI’s discretion, takes legal action against you in connection with any
actual or suspected breach of this Agreement, YGYI will be entitled to recover
from you as part of such legal action, and you agree to pay, YGYI’s reasonable
costs and attorneys’ fees incurred as a result of such legal action. The
Company Parties will have no legal obligation or other liability to you or to
any third party arising out of or relating to any termination of this
25.6. Survival. Upon
termination, all rights and obligations created by this Agreement will
terminate, except that the following Sections will survive any termination of
this Agreement: Section 1.2 (Agreement), Section 2 (Privacy
Policy), Section 4 (Eligibility), Section 6 (License), Section
8 (No Reliance on Third Party Content), Section 9 (Assumption of
Risk; Release), Section 10 (User Account, Accuracy, and Security), Section
15 (Third Party Websites), Section 16 (User Content), Section 17
(Your Responsibility for Defamatory Comments), Section 18 (Objectionable
Content), Section 19 (Prohibited Uses), Section 20 (Intellectual
Property), Section 22 (Disclaimers; Limitation of Liability), Section
22 (Your Representations and Warranties), Section 23 (Indemnity by
You), Section 24 (Dispute Resolution), Section 25 (Termination), Section
26 (Notices), and Section 27 (General).
All notices required or permitted to be given under this Agreement must be in
26.1. YGYI shall give any notice by
email sent to the most recent email address, if any, provided by the intended
recipient to YGYI. You agree that any notice received from YGYI electronically
satisfies any legal requirement that such notice be in writing.
26.2. You bear the sole responsibility
of ensuring that your email address on file with YGYI is accurate and current,
and notice to you shall be deemed effective upon the sending by YGYI of an
email to that address.
26.3. You shall give any notice to YGYI
by email to email@example.com.
27.1. Entire Agreement. This
Agreement constitutes the entire agreement between YGYI and you concerning your
use of the Website.
27.2. Partial Invalidity.
Should any part of this Agreement be declared invalid, void, or unenforceable
by a Court of Competent Jurisdiction, such decision shall not affect the
validity of any remaining portion of this Agreement, which shall remain in full
force and effect, and the parties acknowledge and agree that they would have
executed the remaining portion without including the part so declared by a
Court of Competent Jurisdiction to be invalid, void, or unenforceable.
27.3. Amendments. This
Agreement may only be modified by a written amendment signed by an authorized
executive of YGYI, or by the unilateral amendment of this Agreement by YGYI
along with the posting by YGYI of that amended version.
27.4. No Waiver. A waiver by
either party of any term or condition of this Agreement, or any breach, in any
one instance, will not waive that term or condition or any later breach.
27.5. Assignment. This
Agreement and all of your rights and obligations under it will not be
assignable or transferable by you without the prior written consent of YGYI.
This Agreement will be binding upon and will inure to the benefit of the
parties, their successors, and permitted assigns.
27.6. Independent Contractors.
You and YGYI are independent contractors, and no agency, partnership, joint
venture, or employee-employer relationship is intended or created by this
27.7. No Third Party
Beneficiaries. There are no third-party beneficiaries to this Agreement,
with the following exceptions: the Company Parties; YGYI’s
licensors and suppliers (to the extent expressly stated in this Agreement); and
to the extent stated in the following Sections: Section 8 (No Reliance
on Third Party Content), Section 15 (Third Party Websites), and Section
21.4 (Application of Disclaimers).
27.8. Injunctive Relief. You
acknowledge and agree that any actual or threatened breach of this Agreement or
infringement of proprietary or other third-party rights by you would cause
irreparable injury to YGYI and YGYI’s licensors and suppliers, and would therefore
entitle YGYI or YGYI’s licensors or suppliers, as the case may be, to
27.9. Headings. The headings
in this Agreement are for convenience only, and shall have no legal or