Welcome to www.mytime.com, an internet platform (“Website”) and mobile application (“MyTime Application”) owned and operated by Melian Labs, Inc., a Delaware corporation (“MyTime”, “Melian Labs,” “we,” “our”, or “us”). In order to use the MyTime Service (as defined below), you must agree to these Terms of Use (“Terms of Use” or “Agreement”). The Terms of Use contain many legal disclosures that you should read carefully, including terms of sale that apply when you buy something through the Site and other terms that specify permissible uses of the Site. We operate this Website, the MyTime Application, the mobile and touch versions of the Website and any individual sites or merchant-specific, city-specific, or other area-specific sites we have now or in the future. The MyTime Application, the Website, and links contained within or otherwise available through external hyperlinks within our Site or the MyTime Application (the “Microsites”), and the MyTime Scheduler will be collectively referred to as the “Site” or “MyTime Service” in these Terms of Use. By accessing the Site or using the MyTime Service or MyTime Scheduler, you (“you” and “your” shall refer to each Merchant (as defined herein) and end user of the MyTime Service; users of the MyTime Service that are not Merchants are referred to as “End User(s)” or “Users”) agree that you are authorized to accept the terms set forth below on behalf of yourself and your company and agree to these Terms of Use, our Privacy Policy (published at http://www.mytime.com/terms/privacy and incorporated here by reference), any Terms and Conditions, and any additional terms applicable to certain programs in which you may elect to participate or with respect to any Microsite, as any of the same may exist from time to time (collectively, the “Terms of Use” or “Agreement”). The term “you” also refers to the person accessing or using the Site or the MyTime Service, or the company or organization on whose behalf that person accesses the Site or the MyTime Service. If you do not agree to be subject to these Terms of Use, do not use the Site. By continuing to use the Site, you agree to be bound by these Terms of Use.
1. The MyTime Service. The MyTime Service allows merchants and service providers (collectively, “MyTime Merchant(s)” or “Merchant(s)”) to post availability of their services (“Services”) on the Site. Consumers interested in these services may book appointments for the Services or, for certain Merchants, pay for the Service through the Site (“Order(s)”). The Services will be sold at a price that the Merchant determines, and at their discretion. The Services are provided by our various Merchants and not by MyTime. The Services that you book through the Site or the MyTime embeddable booking widget, which may be added to third-party websites, are the responsibility of the Merchant that provides them. MyTime also provides promotion and marketing services on behalf of certain Merchants.
2. Availability of the MyTime Service
You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the MyTime Service accessible, the MyTime Service may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control, access to the MyTime Service may be interrupted, suspended or terminated. MyTime retains the right at our sole discretion to deny service, or access to the MyTime Service to anyone or an account, at any time and for any reason.
3. Operation of MyTime Service
We reserve complete and sole discretion with respect to the operation of the MyTime Service. We may, among other things: (a) delete email or private messages if it has not been accessed by an End User within the time established by our policies;(b) make available to third parties information relating to Site and End Users (subject to our Privacy Policy); (c) withdraw, suspend or discontinue any functionality or feature of the MyTime Service; and (d) review uploaded files, conferences, BBSs, forums, chats and User Submissions and authorize restrictions on access thereto.
4. Ownership. Your access to the MyTime Service is licensed and not sold. The content and information on the MyTime Service, as well as the infrastructure used by the Site, and all materials therein or transferred thereby and all intellectual property rights related thereto, are the exclusive property of MyTime. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights and you agree not to modify, adapt, edit, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products or services obtained from or through the MyTime Service.
5. Transmission of Information. Because we do not control the security of the Internet or other networks you use to access the MyTime Service or communicate with us, we are not responsible for the security of information that you choose to communicate with MyTime and the MyTime Service while it is being transmitted. In addition, MyTime is not responsible for any data lost during transmission.
6. Your Conduct on Our Site. All interactions with the MyTime Service must be lawful and must comply with these Terms of Use. To the extent your conduct (as judged by us in our sole discretion), restricts or inhibits any other user from using or enjoying any part of the MyTime Service, we may limit your privileges on the MyTime Service and seek other remedies. Please do not engage in the following activities, they are prohibited on the Site and constitute express violations of this Agreement:
7. Creating an Account on our Site
7.1 If you create an account for the MyTime Service, you may only create and hold one (1) account that you are solely responsible for managing. Your account is non-transferrable and may not be sold, combined or otherwise shared with any other person. If you violate any of these limitations, we may terminate your account and, without limitation, you may forfeit any pending, current or future promotional account credits and any unredeemed gift cards in your account. If we terminate your account, you may not re-enroll or join under a new account unless if we formally invite you to do so. If you commit fraud or falsify information in connection with your use of the MyTime Service or in connection with your MyTime account, your account will be terminated immediately and we reserve the right to hold you liable for any and all damages caused by your conduct, to pursue legal action through relevant local and national law enforcement authorities and to notify your Internet Service Provider of any fraudulent activity we associate with you or your use of the MyTime Service.
7.2 Email, Text, and Phone Communications
(a) By creating a MyTime User or Merchant account, you expressly consent and agree to accept and receive communications from us, including via e-mail, text message, calls, and push notifications to the cellular telephone number you provided to us. By consenting to being contacted by MyTime, you understand and agree that you may receive automated SMS or MMS messages (“Text(s)”) or communications generated by automatic telephone dialing systems and/or communications containing prerecorded messages sent by or on behalf of MyTime, its Merchants, or Users, including but not limited to: appointment confirmations or notifications, communications concerning your User/Merchant account or use of the MyTime Site or services, updates concerning new and existing features on the MyTime Site, communications concerning promotions run by us or our Merchants, and news concerning MyTime and industry developments. IF YOU WISH TO OPT-OUT OF EMAIL, TEXTS, OR OTHER COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS PROVIDED TO YOU IN EACH EMAIL, OR BY FOLLOWING THE TEXT AND PHONE COMMUNICATION OPTIONS DESCRIBED BELOW. You may opt-out of receiving Texts from MyTime or affiliated Merchants at any time by responding to any Text with only the number “9”. However, you acknowledge that opting out of Texts may lead to missed Appointment Notifications or other important notifications or updates, and in general impact your use of the MyTime Site as a User or Merchant. You may also opt-out of phone calls by emailing your request to support [at] mytime.com].
(b) Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. You acknowledge that you are not required to consent to receive promotional messages as a condition of using MyTime.
8. Information on the Site. We do not control the information provided by End Users and Merchants. You may find other End Users’ and Merchants’ information to be inaccurate, harmful or offensive. By using the MyTime Service you assume all of the risks associated with the use of the MyTime Service and the Merchants and you agree to accept such risks and agree that MyTime is not responsible for the acts or omissions of any End User or Merchant. Notwithstanding the foregoing, we reserve the right to edit or remove any content placed on the MyTime Service. MyTime does not currently conduct criminal background checks or screenings of its users or Merchants. MyTime does not inquire into the backgrounds of its users or Merchants or attempt to verify the information provided by users or Merchants. MyTime makes no representations or warranties as to the conduct of the users or Merchants of the MyTime Service.
9. Terms of Sale for Orders
9.1 General. By scheduling a Booking, you agree to the terms of the Order and any additional terms or “fine print”, regardless of labeling. Fine print includes, but is not limited to, the expiration date, price, discount, and all limitations. Specific state redemption expiration requirements are solely the responsibility of the Merchant, which apply to all Orders. In the event of a conflict between these Terms of Use and a Booking’s fine print, the Booking’s fine print will control. If you have a question or need a refund pursuant to these Terms of Sale, please contact us by email at support [at] MyTime.com.
9.2 Credit Card Charges. When payment for the Merchant’s Service is accepted through the Site, MyTime will charge the user’s credit card for the cost of services purchased through the MyTime Site after the appointment for the purchased services. MyTime may also put a hold on the user’s credit card for the cost of the services at the time the appointment is booked through the MyTime Site to ensure that payment can be taken at the appropriate time.
9.3 Orders
(a) Orders you pay for through our Site as a MyTime account holder are for certain Services provided by the Merchant identified in the Order. Orders are not redeemable for cash, unless required by law. Unauthorized reproduction, resale, modification or trade of Orders is prohibited. Some Orders are for appointments set at a certain date and time, known as the “Appointment Time”
(b) MyTime is a service provider for the Merchant identified in the Order and the Merchant is the sole issuer of the Order. At times, you may buy a discounted Order (“Discounted Order(s)”) during times specified by a Merchant for a specific Appointment Time or you may purchase full priced Order for products or services at non-discounted times. Discounted Orders can only be used on, and will expire on, the expiration of the specified Appointment Time. You understand and agree that Discounted Orders are not redeemed by their specific Appointment Time for any reason (excluding the cancellation of such Order pursuant to Section 9.7 below) are forfeited and no refund of such Discounted Order will be issued. You must contact the Merchant directly with any questions regarding the expiration of a Discounted Order. Full-priced Orders expire on the date as stated in the confirmation of the Order.
9.4 Bundles and Packages. Merchants may make bundles or packages available in which Users can purchase multiple services or sessions in a single transaction. Merchants may set an expiration date for any bundle or package, and any unused package value is lost as of the expiration date.
9.5 Cancellation and Refund Policy
(a) Purchases may be canceled up to the “Cancellation Period” (the advance notice prior to the scheduled appointment time required to effect an appointment cancellation) prior to the appointment taking place. If you wish to cancel an Appointment Time, you must do so by using the appointment cancellation feature on the Site or by contacting the Merchant directly prior to any Cancellation Period for such Appointment Time. You understand and agree that should you cancel your Appointment Time after the Cancellation Period or if you do not show up for your Appointment Time, you will lose the full value of the Order for the Merchant goods or services to be received.
(b) Merchants set their own cancellation policies, and MyTime must enforce these cancellation policies. It is therefore very important to understand a Merchant’s cancellation policy prior to attempting to cancel an appointment. A full refund may be issued to you upon three events: (a) if you cancel an Appointment Time before the Cancellation Period, (b) if the Merchant cancels your Appointment Time; or (c) if the Merchant refuses to honor any Order at the agreed date and time. If you wish to make a request for a refund, any such request for refund must be made prior to the expiration of the Cancellation Period for the Appointment Time. For each valid refund request, MyTime will refund the amount paid upon request in the original form of payment, or will credit the MyTime account of the purchaser with an equivalent value in MyTime “Credits” for future purchases on the Site. MyTime Credits do not expire.
9.6 Limitation of Liability
(a) Merchant’s Liability. You understand and agree that the Merchant listed as the provider of the products or service specified in the Order is (a) solely responsible for redeeming the Order; (b) fully responsible for all products and services it provides to you, and (c) liable for all damages or losses arising out of the goods or services provided.
(b) MyTime’s Liability. You further acknowledge and agree that MyTime is not responsible for (a) any price adjustments made by a merchant related to an Order, or an appointment time or a merchant product or service, and (b) any claims for injuries, illnesses, damages, liabilities and costs (“Liabilities”) that you may suffer, directly or indirectly, in full or in part, whether related to an Order or any Services.
(c) General Limitation of Liability. To the fullest extent permitted by law, you agree to and hereby waive and release MyTime and its parent company, subsidiaries, affiliates partners, officers, directors, staff members, stockholders and agents from any liabilities arising from or related to (a) any act or omission of a merchant in connection with an Order or the Services, including a merchant’s failure to comply with applicable law and/or failure to abide by the terms of an Order , and/or (b) any Service , any action or inaction by a merchant and/or (c) any indirect, special, punitive, consequential, (including, lost profits or lost data collected through the Services), or incidental damages, whether based on a claim or action of contract, warranty, negligence, strict liability, or other tort, breach of any statutory duty, indemnity or contribution, or otherwise, even if MyTime has been advised of the possibility of such damages. In no event will MyTime’s liability arising out of or related to this agreement exceed the amounts paid by you for the Order or five hundred dollars, whichever is less.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MYTIME ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE MYTIME SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE MYTIME SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE MYTIME SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE MYTIME SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. No Liability for Third Party Websites. We do not have control over websites that MyTime may link to. MyTime may contain links to third-party websites that are not owned, operated, or controlled by MyTime. Therefore, we cannot and do not assume responsibility for the content, privacy policies, or practices of such websites or the companies that own or operate them. Additionally, we cannot and will not censor or edit the content of any third party site. By using MyTime you expressly relieve us from any and all liability arising from your use of any third party website.
11. Intellectual Property
11.1 Ownership
(a) Everything located on or in this Site is the exclusive property of MyTime or is being used with permission. Any copying, distributing, transmitting, posting, linking, deep linking, or otherwise modifying of this Site or Microsites without the express written permission of MyTime is prohibited. Any violation of this requirement may result in a copyright, trademark or other intellectual property right infringement that may subject you to civil and/or criminal penalties.
(b) This Site contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site are protected by copyright as a collective work under the United States copyright laws. MyTime owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. You may download, print, and/or save copyrighted material for your personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express written permission of MyTime or the copyright owner is permitted. If copying, redistribution or publication of copyrighted material is permitted, you will make independent attribution and/or agree to make no changes in or deletion of any author attribution, trademark legend or copyright notice. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material from the Site.
(c) MYTIME®, MYTIME SCHEDULER™, and MYTIME MARKETPLACE™ are trademarks owned by Melian Labs, Inc. These trademarks, together with other trademarks that are located within or on the Site otherwise owned or operated in conjunction with MyTime shall not be deemed to be in the public domain but rather the exclusive property of MyTime, unless such mark or site is under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of MyTime unless otherwise stated.
(d) You will not upload, post or otherwise make available on this Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. MyTime does not have any express burden or responsibility to provide you with indications, markings or anything else that may aid you in determining whether the material in question is copyrighted or trademarked. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. By submitting material to any public area of this Site, you warrant that the owner of such material has expressly granted MyTime the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. You also permit any other end user to access, view, store or reproduce the material for that End User’s personal use. You also grant MyTime the right to edit, copy, publish and distribute any material that you make available on this Site.
11.2 Copyright Policy and Digital Millennium Copyright Act (DMCA) Procedures. MyTime reserves the right to terminate its agreement with you or any other End User who infringes third-party copyrights. If you believe that any material has been posted via the Site by an End User in a way that constitutes copyright infringement, you shall provide MyTime with the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work;
(b) an identification of the copyrighted work and the location on the Site of the allegedly infringing work;
(c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law;
(d) your name and contact information, including telephone number and e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
(e) Contact information for MyTime’s DMCA Agent for notice of claims of copyright infringement is: Melian Labs Inc, Attention: DMCA Agent, 4053 18th St, San Francisco, CA 94114, support [at] MyTime.com. UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying MyTime and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with MyTime’s rights and obligations under the DMCA, including 17 U.S.C. ß512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, MyTime has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. MyTime may also at its sole discretion limit access to the MyTime 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.
12. Disclaimer of Warranty
12.1 You expressly agree that use of this Site is at your own risk. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Without limiting the foregoing, neither MyTime, its subsidiaries, affiliates or any of their respective staff members, agents, merchants, third-party content providers or licensors, or any of their officers, directors, staff members or agents, warrant that use of the Site will be uninterrupted or error free; nor do they make any warranty as to (a) the results that may be obtained from use of this site, or (b) the accuracy, reliability or content of any information, service, or Orders provided through this site. The Site is made accessible on an “as is” and “as available” basis. MyTime hereby disclaims any representations, warranties and conditions, whether express or implied, including those to title noninfringement, merchantability, and fitness for a particular purpose.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. MYTIME DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE MYTIME SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND MYTIME WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
12.2 The information presented or contained in the Site or provided through the service is presented for informational purposes only. No information, whether oral or written, obtained by an end user from a merchant, a merchant from an end user, or from the services will create any warranty not expressly stated in this agreement.
12.3 Each End User hereby agrees and understands that:
(a) MyTime does not sell, exchange, buy, or offer for sale, negotiate or attempt to negotiate, a sale or exchange of any interest in any Order;
(b) Information about an Order is provided directly by the merchant and not by MyTime and MyTime does not engage in reviewing information contained within an Order in any manner;
(c) The decision to make an Order is entirely in the End User’s discretion and MyTime does not induce or attempt to induce any end user to make an Order;
(d) The prices listed by any merchant for an Order may often exclude sales tax or gratuity which may be added to the final sale price at the time the Order is finalized; and
(e) MyTime does not guarantee any price, Service, or product offered by a merchant.
12.4 The MyTime Service is controlled and offered by MyTime from its facilities in the United States of America. MyTime makes no representations that the MyTime Service is appropriate or available for use in other locations. Those who access or use the MyTime Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
13. Arbitration. We will make every reasonable effort to resolve any disagreements that you have with MyTime. If those efforts fail, by using the MyTime Service you agree that any claim, dispute, or controversy you may have against MyTime arising out of, relating to, or connected in any way with this Agreement, the MyTime Service, or the purchase or sale of any Order(s), shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”). You agree further that:
13.1 The arbitration shall be held in San Francisco, California or at such other location as may be mutually agreed upon by you and MyTime;
13.2 The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law;
13.3 There shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or MyTime’s individual claims, and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated;
13.4 In the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, MyTime will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive;
13.5 With the exception of subpart (3) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (3) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor MyTime shall be entitled to arbitrate their dispute.
14. End User Communications. MyTime in some instances allows you and other End Users to use the Site to express opinions and communicate through forums, bulletin boards, discussion groups, chat rooms, reviews, or other communication facilities that may be offered on or through the Site from time to time (collectively “Communities”). MyTime shall have the right, but not the obligation, to monitor the content within the Communities at any time, for any reason, including to determine compliance with this Agreement and any operating rules established by MyTime, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, MyTime shall have the right, but not the obligation, to remove any material from the Communities that MyTime, in its sole discretion, finds to be in violation of this Agreement or otherwise objectionable. Any opinions, advice, ratings, discussions, comments, and/or other messages or postings of any kind made by you or any other End User to the Communities (collectively, “Statements”), are those of the respective author(s) or distributor(s) and not of MyTime.
15. Public Nature of Your Statements. You understand and agree that all Statements, any comments or reviews you post on the Site, and any information contained in a Merchant’s information profile are public and not private. Any other person (whether or not a user of MyTime’s services) may read your Statements without your knowledge. Please do not include any Personal Information (as defined in our Privacy Policy or otherwise) in your Statements. MyTime does not control or endorse any Statement found in any part of the Communities, and we specifically disclaim any liability concerning the Statements and the Communities and any actions resulting from your participation in any part of the Communities, including any objectionable content. Any Statements you post to in connection with the MyTime Service are not confidential. By placing any information or other material in Communities (including but not limited to posting messages, uploading files, inputting data or engaging in any other form of communication), you automatically grant (or warrant that the owner of such content has expressly granted) to MyTime a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide license to use, copy, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, publish and/or broadcast, publicly perform or display any materials or other information (including without limitation, ideas contained therein for new or improved products or services) you submit to the Communities alone or as part of other works in any form, media, or technology whether by any means and in any media now known or hereafter developed and to sublicense such rights through multiple tiers of sublicenses.
16. Feedback. You may choose to or we may invite you to submit comments or ideas about the MyTime Service, including without limitation about how to improve the MyTime Service or other products (“Idea(s)”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place MyTime under any fiduciary or other obligation to you, and that we are free to use or publish the Idea without any compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by reviewing or accepting your submission, MyTime does not waive any rights to use similar or related ideas previously known to MyTime, or developed by its staff members, or obtained from sources other than you.
17. License Grant. By posting Statements or other information on or through the Communities or in connection with the MyTime Service, you grant MyTime a royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display the Statements alone or as part of other works in any form, media, or technology whether now known or hereafter developed without territorial or time limitations, and to sublicense such rights through multiple tiers of sublicensees. Your license of any Statements or information submitted above extends to use for promotions, advertising, market research or any other lawful purpose, without limitation.
18. Indemnity. You agree to defend, indemnify and hold harmless MyTime and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their staff members, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising out of or related to: (i) your use of and access to the MyTime Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above, or representation or warranty; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any other information or content that is submitted via your account including without limitation misleading, false or inaccurate information; (vi) negligent or willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
19. Termination. MyTime may terminate or update these Terms of Use at any time, or suspend access to the MyTime Service immediately, without prior notice or liability, if you breach any terms of this Agreement or for any other reason. Without limiting the foregoing, MyTime shall have the right to immediately terminate or suspend any of your passwords or accounts in the event MyTime considers, in its sole discretion, any of your conduct to be unacceptable, or in the event you breach this Agreement. Notwithstanding the above, these Terms of Use will survive termination of this Agreement.
20. Choice of Law. Any disputes arising out of or related to these Terms of Use and/or any Use by you of MyTime’s Site or services shall be governed by the laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles except that the Arbitration provision shall be governed by the Federal Arbitration Act, as set forth above.
21. Additional Disclosures
21.1 No waiver by either you or MyTime of any breach or default or failure to exercise any right allowed under this Agreement is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Agreement. The section headings used herein are for convenience only and shall be of no legal force or effect.
21.2 If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
21.3 The provisions of these Terms of Use apply equally to and are for the benefit of MyTime, its subsidiaries, affiliates, Merchants and its third-party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.
22. Miscellaneous
22.1 Reservation of Rights. The failure of either party to exercise in any respect any right provided in this Agreement will not be deemed a waiver of such rights.
22.2 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
22.3 Assignability. This Agreement, and any rights and licenses granted hereunder, are not assignable, transferable or sublicensable by you except with MyTime’s prior written consent, but may be assigned by MyTime without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
22.4 Merger. Both parties agree that this Agreement, along with MyTime’s Privacy Policy, MyTime’s Terms and Conditions, Merchant Agreement (in the event you are also a Merchant) and any other legal notices published by MyTime on the Site, are the complete and exclusive statements of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter hereof, and that all modifications must be in a writing signed by MyTime, except as otherwise provided herein.
22.5 Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind MyTime in any respect whatsoever.
22.6 Causes of Action. Any cause of action or claim you may have with respect to MyTime must be commenced within one (1) year after the claim or cause of action arises. If any action in law or in equity is necessary to enforce the terms of this Agreement, MyTime’s Terms of Use, Terms and Conditions, and/or MyTime’s Privacy Policy, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
BY ACCESSING THE MYTIME SERVICE, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU WILL ABIDE BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, IMMEDIATELY STOP ACCESSING THE MYTIME SERVICE AND DO NOT USE ANY MYTIME SERVICE OFFERED THROUGH THE WEBSITE OR MYTIME APPLICATION.
