Last revision: July 1, 2013

Please read these Terms of Service ("Terms of Service" or "Agreement") carefully.  They contain important information regarding your legal rights, remedies, and obligations, including various limitations and exclusions of liability, and a dispute resolution clause that governs how disputes related to the service will be resolved. 

Unless otherwise agreed in a signed agreement between you and/or your organization and Yorn (an “Other Agreement,” as more fully described below), these Terms of Service apply to any product, software, or service supplied by Yorn LLC (“Yorn”) whether paid for or not. 

If you do not agree to be bound by these Terms of Service, or are not authorized to do so, you should not access or use any product, software or service supplied by Yorn. This includes interactions with any Yorn Website, SMS texts in response to a Yorn RTF (defined below), or any other type of electronic service offered by Yorn.

1.  NATURE OF SERVICES.  Yorn.com is owned and operated by Yorn LLC collectively, "we", "us" or "Yorn". We provide and maintain an Internet Web site at www.yorn.com (the "Site") for the benefit of all visitors, users, and others who access the Site or use our services ("you" or "User"). On our Site we provide hosted and downloadable proprietary software (“Software”) to allow you to create and/or participate in real-time feedback sessions and opinion polls (together, real-time feedback, or “RTF”), obtain RTF results, use related services, and applications that use text messaging (SMS) (collectively and as applicable, the Site, Software, applications, and related services, "Service" or "Services").  Users may be RTF collectors (“Collectors”) who design and collect RTF through the Services, and/or RTF responders (“Responders”) who respond to Collectors’ requests for RTF through the Services.

The Services and use of the Site are provided to you subject to the terms and conditions set forth in these Terms of Service ("Terms of Service" or "Agreement"), our Privacy Policy (which is expressly incorporated by reference as if set forth fully herein), and any Other Agreements or Special Terms (each as defined below) set forth on this Site or within other aspects of the Service. Together these items comprise the entire agreement between you and Yorn concerning the Services and supersede, replace, and void all prior agreements between us.

By accessing our Site, downloading or using any Software (as defined below), products, code or scripts available on our Site, responding to SMS messages as part of a RTF, or using any other Services that Yorn makes available, you signify that you have read, understood, and agree to be bound by these Terms of Service, whether or not you are a registered user of any particular Service.

2. USEROBLIGATIONS AND RESPONSIBILITIES.

(a)        You are responsible for the content of all visual, written or audible communications and any other material supplied in connection with your use of the Services, including but not limited to any RTF questions or responses using the Services (together, "Content").  Yorn will not be liable to you or any others for any loss or damages due to your use of the Services or your Content. 

(b)        You agree not to upload, post, email, transmit, or otherwise make available any Content (i) that is unlawful, fraudulent, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another's privacy, hateful, or racially, ethnically, or otherwise inappropriate to the Service, (ii) which restricts or inhibits any other person from using or enjoying the Service, (iii) which may expose Yorn or its users to any harm or liability of any type, or (iv) which is otherwise deemed objectionable by Yorn or its affiliates.

(c)        You agree not to upload, post, email, or transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letter," "pyramid schemes," "affiliate links," or any other form of solicitation.

(d)        You agree not to upload, post, email, transmit, or otherwise make available any Content that violates copyright, trademark or other laws protecting intellectual property, or that violates an individual's publicity or privacy rights; or that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law.

(e)        You agree not to upload, download, transmit, or otherwise make available any malicious code, viruses, or other material that harms, disables, damages, overburdens, impairs or interferes with any device, software, network, telecommunications equipment, hardware, or service; or to use or access the Service in any unlawful manner or in any manner that could damage, disable, overburden or impair the Service; or otherwise Interfere with the proper operation of the Service, or intercept or decipher any transmissions to or from the servers on which the Service is operated.

(f)         You agree not to use the Software, Site, or Service to violate any applicable laws, rules, or regulations in your state or country (including but not limited to laws governing intellectual property rights, online conduct or online content).

(g)        You agree that you have all the rights, licenses, and permissions from third parties to use, reproduce, publish, and display any Content belonging to others, including with respect to any Personal Data (as defined below) relating to RTF Responders.

(h)        You agree not to use (a) automated scripts to collect information from or otherwise interact with the Service, and (b) or access the Service to harvest or collect email addresses, account names or other contact information of other Users by electronic or other means.

(i)         You agree not to bypass or circumvent any security measures or access restrictions used in connection with the Site, Service or Software, or otherwise seek to gain unauthorized access to any of the servers on which the Site, Service or Software is operated or any systems or networks connected thereto.

(j)         You agree not to impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with any person or entity.

(k)         You agree that you will not post, transmit, share, store or otherwise make available through the Service any Personal Data of any third party (with the sole exception of Collectors using Personal Data lawfully obtained to distribute RTFs to Respondents), including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; including, without limitation personal information from anyone under 13, nor shall you solicit passwords or Personal Data through the Service, Site, or Software for commercial or unlawful purposes.

(l)         You agree you will not use or attempt to use another's account, service or system without authorization from Yorn, or create a false identity on the Service.

(m)       To the extent you are using the Service to conduct RTFs, you agree to comply fully with Yorn’s Anti-Spam policy as set forth in Section 11.

If you engage in any activity set forth in this paragraph or violate any terms or conditions of these Terms of Service, your account will be terminated and use of the Service, Software, and Site prohibited. Yorn reserves the right to report any unlawful activity to the appropriate authorities and provide any and all information regarding such activity (whether or not containing Personal Data) to appropriate persons or entities.

Yorn further reserves the right to permanently or temporarily terminate, suspend or block your access to the Service and/or any specific services, Software, features or areas of the Site, with or without notice, if in our sole determination, you have violated or threaten to violate any provision of these Terms of Service or if we determine for any other reason that your continued access to the Service may result in any harm or damage to Yorn, other Users or third parties. Notwithstanding any termination, suspension or denial of access to the Service, you will continue to be bound by these Terms of Service.

3. MODIFICATION TO SERVICES PROVIDED; TERMS OF USE.

You acknowledge and agree that we may, with or without notice, modify or terminate the Services and/or the Site. Modifications of the Service may include, without limitation, changes in the maximum allowable number of RTF respondents, number of RTFs, and number of RTF questions that Collectors may create, save, send or use through the Site and Service for free (collectively, "Thresholds"). Further, we may modify these Terms of Service from time to time, including the fees we charge for Services.

We will notify you of material changes in the Service or these Terms of Service by posting a notice on our Site, or, if we choose, by sending you an email. If you do not accept the changes, you must terminate your use of the Service at that time. Your use of the Site, the Software, or the Service after the notice is posted (or we notify you via email) shall be deemed to be acceptance of the modification or termination of the Services or these Terms of Service.

It is your responsibility to review these Terms of Service periodically to make sure you are aware of any changes. If you do not agree to any of these terms or any future amended Terms of Service, you may not access or use any aspects of the Service. These Terms of Service apply to all Users, and others who access the Service or Software, whether or not through the Site.

4. PAYMENT TERMS; AUTOMATIC RENEWAL; CANCELLATION.

This Section applies if You are a Collector using paid Yorn Services.  Collectors agree to pay, and we will automatically charge, all fees pertaining to their use of the Services at the rates posted on the Site, and including any applicable taxes, at the rates in effect when the fees are incurred (together, “Fees”). We may change the Fees then in effect, or add new Fees, by giving Users advance notice.  You must provide us with valid credit card information to keep on file, and must promptly update your Account Information page in Yorn with any changes in credit card validity or expiration date.  Yorn and its credit card processor will keep your credit card information confidential and process it using PCI compliant technology. If payment cannot be charged to the credit card you have on file with us, we reserve the right to suspend or terminate your Yorn account and access to the Services.

Yorn will charge Collectors’ paid accounts on a monthly (30 day) basis in advance, beginning on the date we charge your credit card, (e.g., if you sign-up on January 12, your monthly Billing Cycle will be on the 12th of each subsequent month), and billing shall continue each month (and your subscription shall autorenew on a month to month basis) until Yorn receives a notice of cancellation from you. Collectors may cancel their paid subscription at any time by submitting such request on the Account Information/Settings page at yorn.com. Upon receipt of your request to cancel your paid subscription, we will no longer charge your credit card for any future renewals. Notwithstanding your cancellation selection, you will continue to have full account access for the days remaining in your current Billing Cycle. At the end of your current Billing Cycle in which we received your cancellation request, we will terminate your access to the Services. No refunds of Fees charged for Services provided will be given. We reserve the right to terminate your account and/or discontinue Services at any time as further set forth in these Terms of Service.

5. REGISTRATION & PASSWORD.

Although you are not required to register in order to use the Service, certain services and features, including creation of RTFs, may not be accessible to you unless you register and create a user account. When creating your account, you must provide accurate, current and complete information ("Registration Information"), and you must maintain and promptly update the Registration Information, and any other information you provide to us, to keep it accurate, current and complete. You are solely responsible for keeping your account password and all other identification credentials secure, and you must notify Yorn immediately of any breach of security or unauthorized use of your account. You are also solely responsible and liable for all use of your account and for any actions taken using your account. Yorn will not be liable for any losses caused by any unauthorized use of your account.

Except as set forth in an Other Agreement between you and Yorn, (as defined below), Yorn is a single User service for both Collectors and Responders. Multiple logins and passwords to the same account are not available or permitted. You may not share logins and passwords with others. Sharing login information is in violation of this Agreement and may result in immediate account termination.

6. PRIVACY.

We are committed to protecting the Personal Data of Users. Please click here to see our privacy policy. By using the Services, you are consenting to have your Personal Data transferred to and processed in the United States. You also hereby acknowledge that you have read and understand the Privacy Policy and consent to Yorn’s use of your Personal Data set out therein (including, with respect to Users resident in the European Union, the transfer of your Personal Data outside the European Economic Area).  If you are a Collector, you also represent and warrant that your RTF requests will not target children under 13 and that you will not knowingly collect personally identifiable information from children under 13.

Except as expressly stated in Yorn’s Privacy Policy with respect to Personal Data you provide to Yorn, Yorn has no control over, and is not responsible for, the privacy of any Content that you have shared with others, including in your responses to RTFs, so always use caution when giving out any Personal Data, or confidential or sensitive information.

7. CONTENT.

The Service enables you, among other things, to provide Content to the Website, via SMS, or other aspects of the Service that will allow you to conduct and respond to RTFs in which you may solicit, track, post, analyze, and act on feedback, comments, questions, and other information.

You are solely responsible for any Content that you post or otherwise make available on or through the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your Content. We reserve the right, but do not undertake any obligation, to temporarily or permanently reject, remove or block access to any Content at any time, in our sole discretion.

You represent and warrant that you have all rights necessary to properly grant to Yorn the rights and licenses granted to us with respect to any Content that you post or otherwise make available, that no royalty or other payment will be due to any person or entity by reason of Yorn’s exercise of such rights, and that such Content and Yorn’s use thereof as permitted by these Terms of Service and does not and will not violate any proprietary right of any person or entity, including without limitation any patent, copyright, trademark, trade dress, trade secret, moral right, right of attribution or integrity ("Intellectual Property Rights"), or any right of publicity or privacy or other contractual right arising under the laws of any jurisdiction.

Yorn takes no responsibility and assumes no liability for any Content that you or any other Users or third parties post, send, link to or view over the Service. You understand and agree that you are solely responsible and liable for any loss or damage of any kind that occurs as a result of any Content that you post or otherwise make available or access through the Service. Yorn is not responsible for any public display or misuse of your Content. You understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree that Yorn will not be liable for any damages you allege to incur as a result of such Content, or any use or reliance thereon.

To the extent you are a Collector, we recommend that you keep track of your RTF results and other data in your own records, as we reserve the right to discontinue your account(s) or terminate the Services at any time. Yorn will take commercially reasonable measures to protect the integrity of each Collector’s data and maintain it for at least six (6) months after account deactivation. If a User account remains inactive for a period of 12 months, we reserve the right to deactivate your account.

8. Yorn Software & Scripts.

The Software used by Yorn to provide the Service (including its look and feel, functionality, object and source code, and any API’s) is proprietary to Yorn (and the nonpublic aspects are confidential to Yorn).  Yorn owns all Intellectual Property Rights subsisting in the Software, and it is protected under relevant United States and international intellectual property law.  Yorn hereby grants User a limited, non-exclusive, non-sublicensable, nontransferable license to use the Yorn Software as required to use the Services as permitted in this Terms of Service, during the Term of this Agreement only.  User shall not: (a) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Software or other Yorn technology, or attempt to create a substitute or similar service or product through use of or access to the Software or proprietary information related thereto; (b) sell, assign, license, sublicense, or otherwise transfer, transmit or convey the Software, or any copies or modifications thereof, to any other party; (c) copy, reproduce, reuse in another product or service, alter, or display in any manner any Software or files, or parts thereof; (d) attempt to gain unauthorized access to the Software or to any account, application, platform, computer system or network associated with the Software; or (d) use the Software in any way that violates this Agreement, or any other relevant agreements between you and Yorn or its affiliates or licensors, or any law, rule, or regulation, and (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols or legal disclaimers in or on the Software or associated with the Services (including within the Site).

Yorn may also make available on or through the Service certain Software constituting scripts or code ("Scripts") that implement RTF widgets or other functionality for use on third party web sites ("Yorn Scripts"). You may use and implement Yorn Scripts on your website, subject in all cases subject to these Terms of Service. Without limitation, in connection with any Yorn Scripts, you agree that you will not: (a) alter, edit or modify in any way any Yorn Scripts from the form provided by Yorn; (b) edit, modify, truncate, filter or change the order of any links or Content displayed in or through the Yorn Script; (c) obscure, modify or redirect users of any site on which a Yorn Script is implemented away from any destination page linked to through a Yorn Script (a "Destination Page"), or intersperse any text, video, audio, advertisement, landing page or other content between the Yorn Script and any Destination Page; (d) minimize, remove or otherwise inhibit the full and complete display of the Yorn Script; (e) encourage or require any person to click on any links displayed in or through the Yorn Script using incentives or other methods that are manipulative, deceptive, malicious or fraudulent; (f) remove, deface, obscure, or alter any proprietary rights notices or disclaimers included in any Yorn Script; or (g) copy, cache, mirror, distribute, display, alter, or otherwise use any Content transmitted via the Yorn Script (or authorize or assist any third party to do so) independent from the Yorn Script.

Yorn reserves the right to include advertising in Content displayed on or through Yorn Scripts, provided, that such advertising shall be clearly identified as such.

9. License Grants.

By posting or otherwise making available any Content on or through the Service, you grant to Yorn a royalty-free, transferable, perpetual, irrevocable, non-exclusive, worldwide license, with the right to sublicense through multiple tiers, to use, reproduce, modify, publish, analyze, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed for use in connection with the Service, and for any purpose whether commercial or non-commercial. During the Term of this Agreement, you are granted a limited, nontransferable, revocable license to use the Service, Site, and Software as expressly authorized herein to create RTFs, respond to RTFs, and view RTF responses and results for your personal or business use as an end product only, provided you must at all times maintain Yorn's copyright symbol on Service, Site and Software in any form or medium. Collectors may further publish or display Responders’ Content (e.g., comments) on website(s) owned or controlled by Collectors, provided that (a) Responders’ comments may not be edited in a manner that would be misleading as to the meaning of the original comment, and (b) the Collector provides attribution to Yorn with respect to each Responder comment or group of comments in the form of a notice such as, “Posted on www.yorn.com on [date].”

The Service, Site, and Software are licensed to you, not sold, and may not be resold or redistributed in any form.  While your account is active, you will have the right to access your RTFs, RTF responses, RTF results, and related RTF data; provided that upon (a) deactivation of your account, for any reason, or (b) termination of this Agreement or the license granted herein by us, you will no longer be able to access such information through your account.

10. ANONYMITY OF RESPONDERS.

Yorn will maintain "anonymous attribution" by default for all Content submitted by Responders, unless such Responder opts-in to display their identity. Although submissions from Responders are displayed to Collectors as anonymous posts, Yorn maintains the ability to proxy responses between Collectors and Responders and still maintain the Responders’ anonymity. Notwithstanding, Yorn does not warrant that all submissions from Responders will be anonymous, as Yorn cannot control the posting of Personal Data directly by the Responder. Accordingly, any such Personal Data that is submitted by a Responder in such a post will be exposed as public Content and may no longer remain anonymous.

Further, consistent with Yorn’s Privacy Policy, Yorn may use combined and aggregated Personal Data of Users (“Aggregated Data”) in order to perform statistical analysis of RTF responses or for other purposes, and may provide such Aggregated Data to Collectors or to other third parties, as long as the Personal Data is sufficiently aggregated to be anonymized and not connected with any individual Responder.

11. ANTI-SPAM POLICY.

To maximize the availability of Yorn’s Services, Yorn has developed a stringent policy with respect to unwanted e-mails directed to third parties with whom you do not have a prior relationship (“Spam”). Accordingly, by using the Service to solicit responses to RTFs, you acknowledge, represent, warrant and agree that:

                          a) You will not engage in any spamming activities in your use of the Services.

                          b) You understand that Yorn is serving as "host" and is not the sender or originator of any RTF, and that
                         you are therefore solely responsible for your activities using the Services.

                          c) You warrant that you either have an ongoing business or personal relationship with or have obtained
                       
consents to send messages inviting participation in a RTF to the persons on your own email/mobile
                        phone list and on any lists you have acquired from a third party.

                          d) Your use of the Site and Services will not violate any U.S. or foreign spamming, junk mail or other
                        related laws or regulations prohibiting or discouraging unsolicited mail, including but not limited to the
                        U.S. CAN-SPAM Act.

                        e) If you engage in any unlawful spamming activity, Yorn reserves the right to report such conduct to
                        the appropriate authorities and turn over any and all information, including relevant Personal Data, to
                        appropriate law enforcement persons or entities.

                        f) If you are a Collector, we may request at any time that you provide proof that your Responders have
                        agreed to receive messages from you. We may require that you provide documentation of specific opt-
                        in processes you have used.

We reserve the right to terminate your account(s) and your use of the Services, without notice, if we believe your activities are not in compliance with this Anti-Spam policy and/or our Terms of Service.

12. DISCLAIMER OF WARRANTIES.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE, SOFTWARE, AND THE SITE IS AT YOUR SOLE RISK. THE SERVICE, SOFTWARE, AND THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.  TO THE FULLEST EXTENT ALLOWED BY LAW, YORN EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE SERVICES, SOFTWARE, OR THE SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. YORN ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE SITE, SOFTWARE, SERVICE, OR WITH RESPECT TO CONTENT PROVIDED BY USERS OR OTHERWISE.

YORN IS NOT RESPONSIBLE FOR ANY USER-PROVIDED CONTENT, INCLUDING BUT NOT LIMITED TO THE CONTENTS OF ANY RTF OR INVITATIONS TO TAKE RTFS, OR INVITATIONS TO VIEW RTF RESULTS CREATED ON OR THROUGH THE SERVICE, NOR IS IT RESPONSIBLE FOR THE RESPONSES SUBMITTED TO ANY RTF REQUESTS OR FOR THE RESULTS GENERATED BY RTF RESPONSES. YORN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RELIABILITY OR ACCURACY OF THE REGISTRATION INFORMATION SUPPLIED TO YORN NOR THE RESPONSES OR INFORMATION SUPPLIED BY RTF RESPONDENTS TO USERS IN RESPONSE TO RTFS. YORN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE CONSEQUENCES OF THE USE OF ANY RTF, RTF RESPONSES OR RTF RESULTS NOR DOES YORN WARRANT THE CORRECTNESS, USEFULNESS, RELIABILITY, ACCURACY OR OTHERWISE OF ANY RTF, RTF RESPONSES OR RTF RESULTS. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY RTFS, RTF RESPONSES, RTF RESULTS OR OTHER INFORMATION RECEIVED WHILE USING THE SERVICE OR SITE.

YORN MAKES NO WARRANTY THAT THE SERVICE, SOFTWARE, OR SITE WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERROR-FREE, ACCURATE OR RELIABLE; NOR DOES YORN MAKE ANY WARRANTY AS TO ANY INFORMATION THAT MAY BE OBTAINED THROUGH THE SERVICE OR SITE OR THAT DEFECTS IN THE SOFTWARE FOR THE SERVICE WILL BE CORRECTED OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YORN MAKES NO WARRANTY REGARDING ANY DATA, GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH OR BASED UPON THE SERVICE, SOFTWARE, OR THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR SITE OR THROUGH THE SERVICE OR SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

The Service is controlled and operated from its facilities in the United States. Yorn makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the U.S.

13. LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NEITHER YORN NOR ANY PARENT ENTITIES, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF THIS AGREEMENT OR YOUR ACCESS TO, USE OF, INABILITY TO USE, OR RELIANCE ON THE SERVICE, SOFTWARE, SITE, OR ANY RTFS, RTF RESPONSES OR RTF RESULTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL YORN, OR ANY OF ITS EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS OR LICENSORS, BE LIABLE FOR ANY DIRECT DAMAGES ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SITE, SOFTWARE, OR SERVICE (BASED ON ANY LEGAL THEORY OR CAUSE OF ACTION WHATSOEVER) IN EXCESS OF THE AMOUNT YOU ACTUALLY PAID TO YORN FOR SERVICES IN THE ONE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE UPON WHICH THE RELEVANT CLAIM ACCRUED (IF ANY).

WITHOUT LIMITING THE FOREGOING, YORN ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY USER CONTRIBUTED CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR OTHER THIRD PARTY.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER BASIS, EVEN IF YORN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

14. INDEMNIFICATION

You agree to defend, indemnify and hold harmless Yorn and each of its parent entities, subsidiaries, affiliates, employees, contractors, agents, officers, directors, members, shareholders and licensors, from and against any and all costs, losses, damages, obligations, liabilities, debts, and expenses (including but not limited to attorneys’ fees) arising out of any claim, suit, or action based directly or indirectly out of: (i) your use of and access to the Service, Software, or Site, including any Content or RTF data transmitted or received by you; (ii) your violation of any provision of these Terms of Service, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation in your use of the Software, Service, or Site; (v) any claim or damages that arise as a result of any Content submitted via your User account; or (vi) any other party's access and use of the Service with your unique username and password.  

15.  PROPRIETARY RIGHTS.

As between the parties, Yorn and/or its licensors own all Intellectual Property Rights associated with the Service, the Site, and the Software, including but not limited to any graphics, look and feel, trademarks, logos, brand names, text, software, music, videos, sound, pictures, compilations, RTF templates, Content as aggregated within the Service, page layout, designs, processes, procedures, magnetic translation, data, digital conversion or any other material contained in the Service, Software and the Site. Such items may be protected by relevant copyright, trademark, patent, trade secret laws, or other proprietary rights and laws.  Yorn® is a registered trademark of Yorn LLC. All other trademarks are the property of their respective owners. No one may copy, reproduce, transmit, post, distribute, or create derivative works from, or decompile, reverse engineer or disassemble the Site, Software, or Service, or any component thereof without the express written authorization of Yorn, LLC. The Site, Service, and Software are ©2012-17, Yorn, LLC. All rights reserved.

16. Submissions.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service that you provide to us through the Service ("Submissions"), provided by you to us, whether solicited by us or provided independently by you, are non-confidential and will become the sole property of Yorn. Yorn will own exclusive rights, including all Intellectual Property Rights, and will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you or any other person or entity.

17. DMCA Notices.

If you believe that your own copyrighted work is accessible on the Service in violation of your copyright, you may provide our Designated Agent with a written communication as set forth in the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512(c)(3) that contains substantially the following information (a "Notification"):

      a.     Identify in sufficient detail the copyrighted material or intellectual property that you claim has been infringe. If multiple copyrighted materials are covered by your Notification, you may provide a representative list of such items.

      b.     Identify the URL or other specific location(s) on the Service that contains the material that you claim infringes your copyright described in Item (a) above. You must provide us with reasonably sufficient information to locate the alleged infringing material. For example, "The content at the following URL infringes on my copyright: http://www.yorn.com/xxxxxx."

      c.     Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.

      d.     Include a statement by you that you have a good faith belief that the copyright owner, its agent, or the law does not authorize the disputed use.

      e.     Include a statement by you that the information contained in your Notification is accurate and that you attest under the penalty of perjury that you are the copyright owner or that you are authorized to act on the copyright owner's behalf.

      f.      Include your name, mailing address, telephone number and email address.

You may send your Notification to our Designated Agent by fax, mail, or e-mail as set forth below:
Yorn, LLC Attn: General Counsel / Yorn Designated Copyright Agent
PO Box 740, Narberth PA 19072
Fax: 215-494-5479
Email: legal@yorn.com

Please note that you may be liable for damages, including court costs and attorneys fees if you materially misrepresent that Content on the Service infringes any copyright.

In accordance with the DMCA and other applicable law, Yorn has adopted a policy of terminating, in appropriate circumstances and at Yorn's sole discretion, Users who are deemed to be repeat infringers. Yorn may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

18. LINKS AND ADVERTISERS.

The Service may contain links to third-party websites, advertisers, or services that are not owned or controlled by Yorn. Yorn has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or services. If you access a third party website from the Service, you do so at your own risk, and you understand that these Terms of Service and Yorn's Privacy Policy do not apply to your use of such sites. You expressly relieve Yorn from any and all liability arising from your use of any third-party website or services or third party owned content. Additionally, your dealings with or participation in promotions of advertisers found on Yorn, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Yorn will not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

We encourage you to be aware of when you leave the Service, and to read the terms and conditions and privacy policy of any third-party website or service that you visit.

19. SUSPENSION & TERMINATION.

Yorn reserves the right to permanently or temporarily terminate, suspend or block your access to the Service and/or any specific services, products, features or areas of the Service, with or without notice, if in our sole determination, you have violated or threaten to violate any provision of these Terms of Service, or if we determine for any other reason that your continued access to the Service may result in any harm or damage to Yorn, other Users or third parties. Notwithstanding any termination, suspension or denial of access to the Service, you will continue to be bound by these Terms of Service.

Yorn may terminate or modify the Service at any time. Yorn shall not be liable to you or any third party in any manner for termination of the Service; provided that if Yorn completely terminates your access to the Service for a reason other than one based on your inappropriate conduct and/or breach of this Agreement, and you are a paying Collector, Yorn will refund any prepaid but unearned Fees received from you prior to the effective date of such termination. In the event you should become dissatisfied with the Service, Software, or the Site, your only recourse is to discontinue use of the Service, terminate your subscription (if any), and give notice to us of these actions. Upon termination, your right to use the Service, Software, and the Site cease immediately and Yorn shall have no obligation whatsoever to retain, forward or make available to you any RTFs, RTF responses or RTF results.

20. Eligibility.

The Service is intended solely for Users who are thirteen (13) years of age or older, and any registration, use or access to the Service by anyone under 13 is unauthorized, unlicensed, and in violation of these Terms of Service. Yorn may terminate your account, delete any content or information that you have posted or otherwise made available on the Service, and/or prohibit you from using or accessing the Service (or any portion, aspect or feature of the Service) if it believes that you are under 13.

21. Security.

We have implemented commercially reasonable technical and organizational measures designed to secure your Personal Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your Personal Data for improper purposes. You acknowledge that you provide your Personal Data at your own risk. In addition, to the extent that you elect to include any Personal Data in any User Content you elect to post or otherwise make available on the Service, you acknowledge that other Users may be able to use, view, copy and/or distribute such information, and that Yorn shall have no liability for any such activities.

22. Other Relevant Agreements.

Your rights to use certain Services or Software available on or through this Site may be subject to separate written agreements with Yorn (“Other Agreements”). Particular pages, products, features, contests, games, or other content on or available through this Site or other aspects of the Service that are supplied by Yorn or its licensors or partners may also have different or additional terms ("Special Terms"), which will be disclosed to you when you access those items, and by accessing or using such items, you will be deemed to have agreed to the applicable Special Terms. If there is a conflict between these Terms of Service and the Special Terms, the Special Terms will govern with respect to the items offered pursuant to the Special Terms. In the event of a conflict between these Terms of Service and one or more Other Agreements, the terms of such Other Agreement(s) shall govern and control. 

With the exception of any Special Terms and Other Agreements, these Terms of Service (and the Yorn Privacy Policy, as incorporated herein by reference) represent the entire agreement between you and Yorn with respect to your use of and material available on or through the Site, and use of the Software and Services, and it supersedes all prior or contemporaneous communications and proposals between you and Yorn with respect to the Site, Services, and Software, including, but not limited to, any purchase orders or other terms and conditions that you may provide to us.  Any rights not expressly granted herein are reserved.

23. NATURE OF AGREEMENT.

You agree that your completion of the registration procedure to establish an account, or your use of any Software, Services or the Site constitutes your agreement to these Terms of Service.  You agree that each use of the Services, Software, and the Site reaffirms your acknowledgment and agreement to the most current version of these Terms of Service.

24.       U.S. Government Restricted Rights.  Any Software or Services that are provided from this Site (or otherwise by Yorn) for or on behalf of the United States of America, its agencies and/or instrumentalities ("Government"), are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successors. Use of the Software or Services by the Government constitutes acknowledgment of Yorn’s proprietary rights in them.

25.       SMS Terms.  Certain Services may allow Responders to provide RTF via SMS and Collectors may communicate with Responders via SMS through the Yorn Services.  These SMS Terms shall govern all such interactions. 

(a)        Whether you opt-in via the Yorn Site or by sending an SMS to Yorn, Yorn will send you an SMS message to confirm your signup.  

(b)        You can cancel at any time. Just text "STOP" to 29676. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us.

(c)        If you want to provide RTF again, just sign up as you did the first time and we will start sending SMS messages to you again.

(d)        If at any time you need help, just text "HELP" to 29676. After you send the SMS message "HELP" to us, we will respond with instructions on how to use the Service as well as how to unsubscribe.

(e)        Participating carriers: AT&T Mobility, Sprint, T-Mobile, Verizon, Alltel, US Cellular, NTelos, Cricket, Virgin Mobile, Cincinnati Bell Wireless, Nextel, Boost Mobile.

(f)         As always, message and data rates may apply for any messages sent to you from us and to us from you. Message frequency depends on your interaction. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.

(g)        For all questions about the Services provided by the 29676 short code, you can send an email to support@yorn.com.

26. GENERAL PROVISIONS.

a.         Governing Law. You agree that: (i) the Service will be deemed solely based in the Commonwealth of Pennsylvania; and (ii) the Service will be deemed a passive one that does not give rise to personal jurisdiction over Yorn, either specific or general, in jurisdictions other than the Commonwealth of Pennsylvania. These Terms of Service will be governed by the internal substantive laws of the Commonwealth of Pennsylvania, without respect to its conflict of laws principles or those of any other jurisdiction. 

 

b.         Arbitration. YOU AND YORN AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN ANY SPECIAL TERMS OR OTHER AGREEMENTS, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF USE, THE SERVICE (INCLUDING YOUR USE OF THE SERVICE, SITE, OR SOFTWARE) WILL BE FINAL AND BINDING ARBITRATION, except that to the extent that you have in any manner infringed upon or violated Yorn’s Intellectual Property Rights, or you have violated any of the User conduct rules set forth in Section 2 above, then the parties acknowledge that arbitration is not an adequate remedy at law and that Yorn may seek preliminary injunctive relief or other appropriate relief from any court having jurisdiction.  Arbitration related to these Terms of Service will be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes (the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration will be determined in accordance with such AAA Rules and will be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, Yorn will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction.

            To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS WILL BE PERMITTED. In no event will any claim, action or proceeding by you related in any way to the Site, Software and/or the Service (including your visit to or use of the Site, Software, and/or the Service) be instituted more than one (1) year after the cause of action arose.

c.         Notices. Yorn may provide notifications relating to the Service to you via postings on the Site or Service, email notice, or written or hard copy notice, as determined by Yorn in our sole discretion. 

d.         Assignment. You may not assign any of your rights, or delegate any of your obligations, under these Terms of Service without Yorn's prior written consent, to be given or withheld in our sole discretion. Yorn may assign its rights, or delegate or subcontract its obligations, under these Terms of Service without restriction.

e.         Nonwaiver. No failure or forbearance by Yorn to exercise any rights or insist upon performance of any of your obligations under these Terms of Service, or to enforce any provision of these Terms of Service, will be deemed a waiver or relinquishment of that right, obligation or provision, or any other right, obligation or provision, to any degree or for any purpose. To be effective, any waiver or modification of any right, obligation or provision of these Terms of Service must be made in a writing signed by an authorized representative of Yorn.

f.          Severability. If a court of competent jurisdiction deems any provision of these Terms of Service invalid, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms of Service, which will remain in full force and effect.

g.         Contact.  Please contact us at legal@yorn.com with any questions regarding these Terms of Service or the Privacy Policy. Alternatively, you may send physical mail to us at 2400 Chestnut Street, Philadelphia, PA 19103