Terms & Policies
EFFECTIVE DATE: JULY 16, 2021
3. USE OF MYA WEBSITE(S)
4. CONDUCT OF USERS
use any MYA Website(s) in any way that violates any law, rule or regulation, or that infringes upon or violates any third party's rights, including, but not limited to, transmitting any Content that may infringe upon or violate a third party's contractual rights or intellectual property rights;
post Content unrelated to any MYA Website(s) or interfere with the functionality of any MYA Website(s) or the rights of MYA or other users of any MYA Website(s);
through your access or use of any MYA Website(s), intimidate, harass, or attempt to impersonate, any other person, post false information or otherwise attempt to mislead others in any way;
attempt to improperly influence or modify the proper use of any MYA Website(s), or, without authorization, attempt to obtain access to any MYA Website(s) or any user account or information related thereto;
submit any material to MYA, whether through or separate from any MYA Website(s), that is encrypted or that contains viruses or other data or software device that damages, interferes with, impairs, disables or otherwise negatively affects any MYA Website(s) or attempts to do so; or
access, monitor, or duplicate any information from any MYA Website(s) or otherwise attempt to or obtain any Content, through any means not intended and not authorized by MYA.
5. MEMBERSHIP, DISCRIMINATION AND SERVICE RESTRICTIONS
fail to pay for Services purchased by you;
fail to perform Services purchased from you, unless the Service User fails to pay, or you cannot verify the Service User's identity;
post false, inaccurate, misleading, defamatory, or libelous Content (including personal information about any user of any MYA Website(s)); or
take any action that may cause harm to the feedback or ratings systems related to MYA and/or any MYA Website(s).
You may be required to create an account to use or access certain parts of MYA Website(s) and provide login information (username and password) to access and use your account. You agree to provide MYA with truthful, accurate, current and complete registration information when registering for or using any MYA Website(s) and update such information when it changes. It is your duty to maintain the confidentiality of any username, password or other account information and for all activities that occur under your account.
8. CONTENT ON THE MYA WEBSITES AND DISTRIBUTION
9. SERVICE PROVIDERS AND SERVICE USERS
MYA does not endorse and is not responsible or liable for any Content, goods or services available from, or through, any third party or any Service Provider. You use the Services and any MYA Website(s) at your own risk. You agree that MYA is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with any use or reliance on such Services. Your dealings with any Service Provider are separate from and do not involve MYA. You should investigate any and all Service Providers to the extent you deem necessary before using or hiring any Service Providers. Third parties and Service Providers may link or otherwise direct you or others to any MYA Website(s) and we may provide links or otherwise direct you to other websites. MYA does not control or operate any such other websites. Any information you provide to these third-party websites is subject to the policies of those third parties and it is your responsibility to review such third-party policies. You agree that MYA will not be responsible or liable for Services provided on or through third-party websites. MYA makes no representations or warranties of any kind as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give to any third party. MYA is not responsible for the accessibility or unavailability of any Service Provider, Service User or for your interactions and dealings with them. You hereby waive the right to bring or assert any claim against MYA relating to any interactions or dealings with any third party, Service Provider or Service User. Without limiting the foregoing, your business dealings with third parties, Service Providers or Service Users found on or through the use of any MYA Website(s), including payment for and delivery or fulfillment of related Services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. MYA shall not be responsible or liable, directly or indirectly, for any loss or damage of any kind or nature, incurred as the result of any such dealings or as the result of the presence of such third parties or Service Providers or Service User on any MYA Website(s).
10. ADDITIONAL RULES FOR SERVICE PROVIDERS
use his or her profile to promote services not offered on or through any MYA Website(s) for which Service Provider has login credentials (“Registered MYA Website”); or
offer prohibited services.
Violating Rules for Service Providers. If a Service Provider violates any of the above-referenced rules in connection with his or her posting, MYA may, in its sole discretion, terminate Service Provider’s account, cancel the posting, limit the Service Provider's privileges, suspend the Service Provider's account, and/or decrease the Service Provider's status.
11. ADDITIONAL RULES FOR SERVICE USERS
Service Users shall not; (i) commit to purchasing or using a Service without paying for the Service; (ii) sign up for, negotiate a price for, use, or otherwise solicit a Service with no intention of acquiring or paying for the Service; (iii) agree to purchase a Service without meeting the Service Provider's terms; or (iv) misuse any options made available now or in the future by MYA in connection with the use or purchase of any Service.
By creating an account with MYA, and use of any MYA Website(s), Service User hereby consents to communicative contact (e.g., by Service Providers and/or their places of business) in the manner or manners in which Service User chooses to be contacted. Service Users may modify the manner of contact in their respective account settings.
Violating Rules for Service Users. If a Service User violates any of the above-referenced rules in connection with use of any MYA Website(s), or if MYA receives more than two (2) complaints of a similar nature regarding your use of any MYA Website(s) or treatment of one of more Service Providers, MYA may, in its sole discretion, terminate the Services User’s account, cancel the posting, limit the Service User's account privileges, suspend the Service User's account, and/or decrease the Service User's status.
13. TRADEMARKS AND COPYRIGHTS
“mya”, “Meet Your”, “Meet Your Stylist”, “Meet Your Barber”, “Meet Your Esty”, “Beyond the Technique”, and other Content on the MYA Websites are the trademarks or trade dress of Inspired Enterprises, Inc. in the U.S. and Canada and Australia, and may not be used in connection with any product or service in any manner that is likely to cause confusion. All Content and material made available on the MYA Websites is protected by copyright law or should be considered as such, and except for that which is submitted by users, all Content on any MYA Website(s) is the exclusive property of MYA.
14. MAKING CLAIMS OF INFRINGEMENT
MYA will promptly process and investigate legitimate claims of alleged infringement of copyright and other intellectual property and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of notices in substantial compliance with the DMCA, we may act promptly to remove or restrict access to any material claimed to be infringing or claimed to be the subject of infringing activity and may act promptly to remove or restrict access to any reference or link to material or activity that is claimed to be infringing. We may terminate access for users of any MYA Website(s) who infringe on the intellectual property of others.
Notifying MYA: To provide MYA with notice of an infringement, you must provide a written communication to the attention of “MYA DMCA Agent” at email@example.com that sets forth the information specified by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). You may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is infringing your copyright. MYA will need the following information from you:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled
information reasonably sufficient to permit MYA to locate the material identified under (D), above (e.g., provide a uniform resource locator (URL) or hyperlink, if possible);
your address, telephone number, and email address;
your statement that you have a good faith belief that use of the material identified under (D), above, in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
your statement, made under penalty of perjury, that the above information in your Notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Providing Counter-Notification: If MYA removes or disables access to Content in response to an infringement notice, MYA may make reasonable attempts to contact the owner or administrator of the affected Content. If your material has been removed and you believe that your material does not constitute infringement, you may provide us with a counter notification by written communication to the attention of “MYA DMCA Agent” at firstname.lastname@example.org that sets forth all of the necessary information required by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). You may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, we recommended seeking advice of an attorney.
15. DELAYS AND ACCESS TO SITE
Any MYA Website(s) may be subject to delays, failure, and other problems inherent in the use of the Internet and electronic communications. MYA is not responsible for any delays, failures or other damage resulting from such problems.
MYA welcomes your comments regarding any MYA Website(s). However, MYA cannot accept or consider ideas, suggestions, or materials other than those which we have specifically requested from you. Your feedback is valuable so please be specific and do not submit ideas, suggestions or materials. If you do provide such information (collectively, the "Input"), such Input shall become the property of MYA. In addition, none of the Input will be subject to any obligations of confidentiality and MYA will not be liable to you for any use of such Input.
17. WARRANTIES AND DISCLAIMERS OF WARRANTY
You acknowledge and agree that MYA has no control over, and no duty to take any action with respect to: users who access or use any MYA Website(s); how any Content may affect you or how you use it; or what actions you may take as a result of exposure to the Content. You hereby expressly release MYA from any and all liability in connection with your ability to obtain or not obtain Content through any MYA Website(s). The MYA Website(s) or other website to which you may be directed may contain information that you or others may find offensive. MYA makes no representations or warranties regarding Content accessed through any MYA Website(s), and MYA will not be responsible or liable for the Content or its accuracy, legality or appropriateness. MYA makes no guarantee or warranty of any kind, oral or written, express or implied, as to any matter whatsoever, including but not limited to the that information and assumes no responsibility for accuracy, completeness or any errors or omissions therein.
YOU AGREE THAT YOUR ACCESS TO ANY MYA WEBSITE(S) AND USE OF ANY MYA WEBSITE(S) IS AT YOUR OWN RISK. MYA WEBSITE(S) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ALL OF WHICH ARE SPECIFICALLY AND EXPRESSLY DISCLAIMED. NEITHER MYA NOR ITS EMPLOYEES, AGENTS OR THIRD-PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGES RESULTING FROM USE OR UNAVAILABILITY OF INFORMATION OR CONTENT ON OR IN CONNECTION WITH ANY MYA WEBSITE(S), INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOSS, CORRUPTION OR DAMAGE TO DATA, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, COMPENSATORY OR INCIDENTAL DAMAGES, EVEN IF YOU OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM ANY ACT OR ACTS, NEGLIGENCE OR OMISSION OF MYA, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO, OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. MYA IS NOT LIABLE FOR CRIMINAL, TORTIOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT ANY MYA WEBSITE(S). IN NO EVENT WILL MYA OR ANY OF ITS DIRECTORS, OFFICERS, AGENTS, OWNERS, MEMBERS, EMPLOYEES, ASSIGNS OR THIRD-PARTY CONTENT PROVIDERS BE HELD LIABLE FOR ANY TORTIOUS OR ILLEGAL CONDUCT OF OTHER USERS. IN NO EVENT WILL MYA OR ANY OF ITS DIRECTORS, OFFICERS, AGENTS, OWNERS, MEMBERS, EMPLOYEES, OR ASSIGNS BE OR BE HELD LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE OR OTHER PROPERTY OF USER, INCLUDING LOSS OR CORRUPTION OF DATA, OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH USE OF ANY MYA WEBSITE(S). ANY MATERIAL ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED OR USED THROUGH ANY MYA WEBSITE(S) IS PERFORMED AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OR CORRUPTION OF DATA THAT RESULTS FROM SUCH ACTION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MYA, OR THROUGH OR FROM ANY MYA WEBSITE(S), SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, MYA DOES NOT REPRESENT OR WARRANT THAT (I) ANY MYA WEBSITE(S) AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, (II) ANY MYA WEBSITE(S) AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY MYA WEBSITE(S) AND/OR SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH ANY MYA WEBSITE(S) WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN ANY MYA WEBSITE(S) OR ANY SOFTWARE WILL BE CORRECTED. YOU AGREE THAT FROM TIME TO TIME MYA MAY REMOVE YOUR ACCESS OR USE OF ANY MYA WEBSITE(S) FOR INDEFINITE PERIODS OF TIME, OR CANCEL IT AT ANY TIME, WITHOUT NOTICE TO YOU. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, MYA'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. MYA SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICES, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND MYA HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY DAMAGES LOSS OR LIABILITY OF ANY KIND ARISING FROM OR RELATING TO SUCH INFORMATION IN ANY WAY.
MYA has no control over and no duty to take any action regarding: other users’ behavior, access to or use of any MYA Website(s); what effects Content may have on you; how you may interpret or use Content; or what actions you may take as a result of having been exposed to Content. You release MYA from all liability for you having acquired or not acquired Content through any MYA Website(s). MYA makes no representations concerning any Content, including the accuracy thereof, contained in or accessed through any MYA Website(s), and MYA will not be responsible or liable to you for the material contained in or accessed through any MYA Website(s). The MYA Website(s) may include links to other Internet websites or resources. MYA is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such Site or resources. You further acknowledge and agree that MYA shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
18. INDEMNIFICATION OF MYA
19. LIMITATION OF LIABILITY
If you use computer programming routines that are intended to compile data from any MYA Website or otherwise damage, disrupt, disable or otherwise cause damage to any MYA Website, you agree to pay One Thousand Dollars ($1,000) for each report or record that is affected by you in such manner.
22. ENTIRE AGREEMENT
23. GOVERNING LAW, VENUE, JURISDICTION
24. MISCELLANEOUS ITEMS
25. CONTACTING MYA
EFFECTIVE DATE: NOVEMBER 7, 2022
mya helps people research, hire, rate, and review a variety of professionals in the beauty and wellness industry who offer their services via this website (collectively, the “Pros”) and assists Pros with introducing their services to such people (collectively, the “Service Users”). Privacy is important to us at mya. We want to be clear how we use your information, and the ways in which you can protect your privacy.
- What information we collect and why we collect it;
- How we use that information and when we disclose it;
- How to access and update your information; and
- The steps we take to protect your information.
Information We Collect
1. Information you provide to us
We collect the following information:
Content: We collect and store for our review and use content that you create, input, submit, post, upload, transmit, or store in the process of using our Services, including information from end users using our Services and/or that we host on your behalf. Such content may include any personal or other sensitive information submitted using our Services.
Other submissions: We collect other data that you may submit to our Services or us directly, such as when you request customer support or communicate with us via email or social media sites.
2. Information we collect from your use of our Services
Web Logs and Analytics Information: We record certain information and store it in log files when you interact with our Services. This information may include Internet protocol (IP) or other device addresses or ID numbers as well as browser type, Internet service provider, URLs of referring/exit pages, operating system, date/time stamp, information you search for, locale and language preferences, your mobile carrier, and system configuration information. We and our analytics providers also collect and store analytics information when you use our Services to help us improve our Services.
3. Information we collect from other sources
Information from third party services: We may obtain information, including personal information, from third parties such as our partners and service providers, and combine it with other information we collect from you.
Public information: We may obtain information, including personal information, from publicly available records, and combine it with other information we collect from you.
How We Use Information We Collect
We may use the information we collect for a variety of purposes, including to:
- Provide, operate, maintain, improve, personalize, and/or promote our Services;
- Develop new products, services, features, and/or functionality;
- Enable you to access and use our Services;
- Process and complete transactions, and send you related information, including purchase confirmations and invoices;
- Communicate with you, including: responding to your comments, questions, and requests; providing customer service and support; providing you with information about services, including technical notices, updates, security alerts, administrative messages, or advertising or marketing messages; and providing other news or information about us and our select partners;
- Monitor and analyze trends, usage, and activities in connection with our Services; and/or
- Investigate and prevent fraudulent transactions, unauthorized access to our Services, and other illegal activities.
We may also use the information we collect for other purposes about which we notify you.
Information Sharing and Disclosures
We may share your information in the following ways:
With your express consent: We will share your personal information with companies, organizations, or individuals outside of mya when we have your consent to do so.
Your use: When you use our Services, certain features allow you to make some of your content accessible to the public or other users of the Services. We urge you to consider the sensitivity of any information prior to sharing it publicly or with other users.
Access by your administrator: Your mya account owner or HIPAA Security Officer may be able to:
- Access information in and about your mya account;
- Disclose, restrict, or access information that you have provided or that is made available to you when using your mya account, including your content; and
- Control how your mya account may be accessed or deleted.
Service Providers, Business Partners and Others: We may share your information with service providers and other third parties who perform services on our behalf, such as infrastructure, analytics, marketing, and advertising services. We provide your payment information to our service providers for payment processing and verification. Service providers such as analytics providers may collect information about your online activities over time and across different online services when you use our Services.
Compliance with Laws and Law Enforcement Requests; Protection of Our Rights: We may disclose your information (including your personal information) to a third party if:
- We believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or governmental request;
- To enforce our agreements, policies and terms of service;
- To protect the security or integrity of mya's products and services;
- To protect the property, rights, and safety of mya, our customers or the public from harm or illegal activities;
- To respond to an emergency which we believe in the good faith requires us to disclose information to assist in preventing the death or serious bodily injury of any person; or
- To investigate and defend ourselves against any claims or allegations made by you or a third-party.
Business Transfers: We may share or transfer your information (including your personal information) in connection with, or during negotiations of, any merger, sale of company assets, financing, or acquisition of all or a portion of our business to another company. We will notify you of such a change in ownership or transfer of assets by posting a notice on our website.
Aggregate or Non-identifying Data: We may share aggregate or other non-personal information that does not directly identify you with third parties in order to improve the overall experience of our Services.
The Choices You Have Regarding Your Information
You may decline to share certain personal information with us, in which case we may not be able to provide to you some of the features and functionality of our Services. You may update or correct your personal information at any time by accessing the account settings page on the website or within our platform. You may opt out of receiving promotional communications from mya by using the unsubscribe link within each email. Even after you opt out from receiving promotional messages from us, you will continue to receive administrative messages from us regarding the Services.
Our Services are not directed to individuals under 13. We do not knowingly collect personal information from children under 13. If we become aware that a child under 13 has provided us with personal information, we will take steps to delete such information. If you become aware that a child has provided us with personal information, please contact us at email@example.com.
Our Services are hosted in the United States and intended for users located within the United States. If you choose to use the Services from the European Union or other regions of the world with laws governing data collection and use that may differ from U.S. law, then please note that you are transferring your information outside of those regions to the United States for storage and processing. By providing your information, you consent to any transfer and processing in accordance with this Policy.
EU-U.S. Privacy Shield and U.S.-Swiss Safe Harbor Compliance
mya is a participant in the U.S. Department of Commerce's EU-U.S. Privacy Shield and Swiss Safe Harbor programs, and has certified that we adhere to the EU-U.S. Privacy Shield and U.S.-Swiss Safe Harbor Privacy Principles. mya is subject to the investigatory and enforcement powers of the Federal Trade Commission.
For more information about the EU-U.S. Privacy Shield Framework, visit the U.S. Department of Commerce's Privacy Shield website.
For more information about U.S.-Swiss Safe Harbor and to view our certification, visit the U.S. Department of Commerce's Safe Harbor website.
EU-U.S. Privacy Shield Onward Transfers
For personal data transferred to mya from the EU, if we transfer your personal data to a third party, we will ensure that the third party is contractually obligated to process your data only for limited, specific purposes consistent with this policy. We will also ensure that the third party will apply the same level of protection to that data as the EU-U.S. Privacy Shield Principles and will notify us if it makes a determination that it can no longer meet this obligation. mya may be potentially liable if these requirements are not met.
Complaints, Questions, and Arbitration
In compliance with the EU-U.S. Privacy Shield and U.S.-Swiss Safe Harbor Principles, we strive to resolve all complaints about privacy and the collection or use of customer information. If you have questions about our participation in the Privacy Shield or Safe Harbor programs or have a complaint, please send an e-mail to firstname.lastname@example.org.
Under the Privacy Shield and Safe Harbor programs, any unresolved privacy complaints can be referred to an independent dispute resolution mechanism. We use the International Centre for Dispute Resolution®/American Arbitration Association®. If you feel that we have not satisfactorily addressed your complaint, you can visit the ICRD/AAA website at https://apps.adr.org/webfile/ for more information on how to file a complaint. In some cases, you may be able to invoke binding arbitration.
California Privacy Rights
California Civil Code Section 1798.83 permits mya customers who are California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please contact us at email@example.com.
Please contact us with any questions or comments about this Policy, your personal information, our use and disclosure practices, or your consent choices by email at firstname.lastname@example.org.
mya Terms of Service
EFFECTIVE DATE: JUNE 29, 2021
This MYA Terms of Service Agreement (this “Agreement”) is made and entered into as of the date listed on the applicable Order Form incorporating these terms (the “Effective Date”) and is between Inspired Enterprises, Inc., operating under trademarks MYA and MEET YOUR STYLIST (“MYA”), and the company listed on the Order Form (“Customer”). Capitalized terms used but not defined when they first appear have the meanings given to them in Section 8.
Background. MYA provides an Internet-based platform that assists MYA customers with helping men and women research, hire, rate, and review a variety of professionals in the beauty and wellness industry who offer their services. MYA customers access MYA’s software as a service through the procurement of an administrative profile and access point. MYA’s software as a service resides on MYA servers that Customer accesses via the Internet.
1. The MYA SaaS.
1.1 Limited Right to Access and Use. Subject to the terms of this Agreement, MYA hereby grants to Customer a nonexclusive, non-transferable, revocable, limited right to access and use via the Internet, solely for the Permitted Use, the MYA SaaS during the Term. Customer is responsible for maintaining the security of the activation codes and administrative login information used to access the MYA SaaS. Customer is solely responsible for connection of Customer’s systems to a telecommunications service that provides Internet access for purposes of Customer’s access and use of the MYA SaaS.
1.2 Limited Right to Access and Use.
- Export Controls. MYA provides services and uses software and technology that may be subject to U.S. export controls administered by one or more United States agencies. Customer shall not access or use the MYA Proprietary Content and Applications (defined below) or otherwise transfer or export or re-export to countries that the U.S. maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”), each of which may change from time to time. By using any MYA Proprietary Content and Applications, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of, an Embargoed Country or Designated National. The MYA Proprietary Content and Applications may use encryption technology that is subject to licensing requirements under 15 C.F.R. Parts 730-774.
1.3 MYA Proprietary Content and Applications. Except for the limited rights granted in Section 1.1 (Limited Right to Access and Use) and an SOW, MYA and its licensors reserve all right, title, and interest in and to the MYA SaaS, the API, MYA’s other software and systems, Activation Data, MYA’s web applications, browser extensions, software applications, tools, and other application services, and MYA’s logos, marks, and other content MYA provides (collectively, the “MYA Proprietary Content and Applications”). In the event that Customer makes improvements or other modifications to the MYA Proprietary Content and Applications, Customer hereby grants to MYA a nonexclusive, royalty-free, fully paid up, irrevocable, perpetual, worldwide license (with the right to assign and sublicense) to use, display, copy, distribute, modify, make derivative works of, sell and import such modifications and improvements. Nothing in the preceding sentence is to be construed as granting MYA any rights to use Customer’s trademarks in commerce.
1.5 Suspension of Access to MYA SaaS and Professional Services. MYA understands that consistent availability of the MYA SaaS is important to users, and strives to maintain same. However, MYA may suspend access to the MYA SaaS for any of the following reasons: (a) to prevent damages to, or degradation of, the MYA Proprietary Content and Applications; (b) to comply with any law, court order, or other governmental request; or (c) if Customer violates the terms of this Agreement. MYA shall use reasonable efforts to provide Customer with notice before or promptly following any suspension of access to the MYA SaaS. MYA shall restore access to the MYA SaaS as soon as the event giving rise to suspension has been resolved. Customer acknowledges that the API and the MYA SaaS may contain functionality that monitors Customer’s compliance with this Agreement. Customer shall not circumvent or attempt to circumvent any of the foregoing without MYA’s prior authorization. This Agreement is not to be construed as imposing any obligation or duty on MYA to monitor the Product Data or Customer’s use of the API or MYA SaaS.
1.6 Mutual Warranties. Each party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
1.7 Additional MYA Warranty. MYA warrants to Customer that the API and the MYA SaaS will operate in substantial conformity with the Documentation during the Term. Customer’s sole and exclusive remedy, and MYA’s sole and exclusive liability, for a breach of the foregoing warranty is for MYA, in its sole discretion, to either use its best efforts to remedy the breach or issue Customer a credit for the prepaid portion of the fee for the affected API and MYA SaaS.
2. Optional Professional Services Provided by MYA. Some customers of MYA request MYA to provide Professional Services to support their efforts. Professional Services may be ordered pursuant to an Order Form or statement of work. If MYA provides Professional Services to Customer pursuant to one or more statements of work (each, an “SOW”), each SOW will be considered a part of and an attachment to this Agreement. No SOW will be effective unless it is signed by the parties and references this Section 2.
3. Term. The initial term of this Agreement commences on the Effective Date and ends one year from the Effective Date. The initial term and each subsequent renewal term will automatically renew for a period of one year, unless (a) either party provides the other party with notice of its intent not to renew at least 30 days prior to the commencement of the next renewal term, or (b) a subsequent Order Form extends the term to a later date, in which case such later date will be the basis for subsequent renewals. The initial term and all subsequent renewal terms are referred to together as the “Term.”
4. Termination. A party may terminate this Agreement with 60 days notice of such termination. The following sections survive termination: 1.3 (MYA Proprietary Content and Applications; Feedback), 1.4 (Product Data Owned by Customer), 4 (Termination), 5 (Fees and Payment), 6 (Disclaimer of Warranties), 7 (Limitation of Liability and Damages), 8 (Certain Definitions), and 9 (General Provisions).
5. Fees and Payment. Unless otherwise provided in an Order Form or SOW, Customer shall pay MYA the fees as stated monthly in advance. For fees and charges not otherwise paid monthly in advance, Customer shall pay MYA the amounts listed on MYA’s invoice by the due date specified in the Order Form or SOW. Payments not made within the applicable time period are subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount, or (b) the maximum amount permitted under law, plus in either case, costs of collection and reasonable attorneys’ fees. If Customer believes that an invoice is incorrect and Customer desires to obtain an adjustment of such invoice, Customer must provide MYA notice thereof including relevant details within thirty (30) days of the invoice date. Fees applicable to a renewal term may be adjusted with sixty (60) days’ notice to Customer prior to the start of such renewal term. Customer is responsible for all sales, use, and similar taxes. Customer shall pay all amounts in U.S. dollars.
6. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTIONS 1.6 (MUTUAL WARRANTIES) AND 1.7 (ADDITIONAL MYA WARRANTY), THE PROFESSIONAL SERVICES, THE MYA SAAS AND THE MYA PROPRIETARY CONTENT AND APPLICATIONS ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. MYA AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT.
7. Limitation of Liability and Damages. NEITHER MYA NOR ITS VENDORS NOR ITS LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT DAMAGES, SUCH AS LOSS OF PROFITS, SALES, BUSINESS, OR DATA, OR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS DAMAGES, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT. THE TOTAL LIABILITY OF MYA AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER UNDER A CONTRACT, TORT, OR OTHER THEORY OF LIABILITY, FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
8. Certain Definitions. As used in this Agreement, the terms below when capitalized have the following meanings:
“Force Majeure Event” means any act or event, whether foreseen or unforeseen, that (a) prevents the Nonperforming Party (defined in Section 9.9) from either performing its obligations under this Agreement or satisfying any conditions to the obligations of the other party under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has been unable to avoid or overcome by the exercise of reasonable diligence. Notwithstanding the foregoing, a Force Majeure Event does not include economic hardship or cost increases.
“MYA SaaS” means the software as a service made available by MYA, accessible via the Internet, that provides functionality related to the display of salon services and available stylists, including any updates that MYA may provide.
“Permitted Use” means the display of Product Data on the Customer websites listed in an Order Form in the normal course of Customer’s business.
“Professional Services” means consulting services provided by MYA.
“Activation Data” means technical information that MYA gathers periodically to (i) facilitate the provision of updates to the MYA SaaS, and (ii) verify compliance with the terms of this Agreement.
“API” means the application programming interface that MYA makes available to Customer that is specifically designed to access the MYA SaaS from a website, and display certain Product Data to such website, including any updates that MYA may provide.
9. General Provisions.
9.1 Notices. To be effective, any notice, consent, or communication required or permitted to be given in connection with this Agreement must be in writing and personally delivered or sent by messenger, overnight courier, email, or certified mail and addressed to the address specified in the most recent Order Form, to the attention of the persons listed therein. Each party shall promptly notify the other of any change to such party’s address or contact information. All notices, consents, and communications are deemed delivered and received by the receiving party (i) if personally delivered or delivered by messenger, on the date of delivery or on the date delivery was refused, (ii) if delivered by overnight courier or certified mail, on the date of delivery as established by the return receipt, courier service confirmation, or similar documentation (or the date on which the courier or postal service, as applicable, confirms that acceptance of delivery was refused or undeliverable), or (iii) if emailed, the date on which the email is confirmed through an acknowledgment of receipt by either the intended recipient or other third party confirmation of delivery service (with an automatic “read receipt” not constituting receipt of an email).
9.2 Amendments and Waivers. No amendment or termination (other than termination as expressly permitted by this Agreement) of this Agreement is effective unless it is in writing and signed by the party against whom enforcement is sought. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion or against any other person. To the extent any course of dealing, act, omission, failure, or delay in exercising any right or remedy under this Agreement constitutes the election of an inconsistent right or remedy, that election does not either constitute a waiver of any right or remedy or limit or prevent the subsequent enforcement of any provision.
9.3 Assignment. Without the prior consent of the other party, neither party may (i) assign this Agreement or any of its rights under this Agreement, or (ii) delegate any performance under this Agreement, except in either case, to a successor in connection with a merger, sale of substantially all its assets, or similar reorganization. Any purported assignment or delegation in violation of this section will be void. This Agreement binds and inures to the benefit of the parties and their respective successors and permitted assigns.
9.4 Governing Law. The laws of the State of Wisconsin govern all matters arising out of or relating to this Agreement, including, without limitation, its interpretation, construction, performance, and enforcement, without giving effect to such state’s conflicts of law principles or rules of construction concerning the drafter hereof. The parties hereby irrevocably and unconditionally submit to the jurisdiction of the federal and state courts located in the state of Wisconsin, for the purpose of any suit, action, or other proceeding arising out of or based upon this Agreement, which courts are the exclusive forum for any such suit, action, or other proceeding.
9.5 Feedback. Customer’s suggestions, comments, requests, and other feedback (collectively, “Feedback”) to MYA with respect to MYA’s offerings and services are welcomed by MYA. Feedback is voluntary, and MYA is not required to hold Feedback in confidence. Customer hereby grants MYA an irrevocable, non-exclusive, perpetual, royalty-free, worldwide license (with the right to assign and sublicense) to use, display, copy, distribute, make derivative works of, sell and import (a) Feedback and (b) for the sole purpose of improving or changing the MYA SaaS and any other MYA Proprietary Content and Applications, the Product Data. Nothing in this section is to be construed as granting MYA a right to use Customer’s trademarks in commerce.
9.6 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement will not be affected or impaired.
9.7 Entire Agreement. his Agreement, together with the Order Forms, invoices and any other exhibits and attachments hereto and thereto, constitutes the entire and final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations, term sheets, letters, memoranda, and other discussions and agreements, either oral or in writing, between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. No provision of this Agreement may be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied on any statement, representation, warranty, or agreement of the other party except for those expressly contained in this Agreement. In the event of a conflict between the body of this Agreement and any Order Form, SOW, exhibit, or other attachment, the governing priority of the documents is as follows: (a) this Agreement, (b) Order Form(s), (c) SOW(s), and (d) exhibits or other attachments, unless (i) the conflicting provision expressly states that it amends or supersedes a document that is listed in this sentence as having higher governing priority, (ii) such document is signed or initialed by both parties, and (iii) such document is dated as of or after the document that it amends or supersedes.
9.8 Relationship of Parties. The parties to this Agreement are independent contractors; there is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
9.9 Force Majeure. If a Force Majeure Event occurs, the party unable to perform (the “Nonperforming Party”) is excused from performing whatever is prevented by the Force Majeure Event to the extent so prevented, and satisfying whatever conditions precedent to the other party’s obligations that cannot be satisfied. A Force Majeure Event does not excuse the payment of money. When the Nonperforming Party is able to resume performance of its obligations under this Agreement, or satisfy the conditions precedent to the performing party’s obligations, it shall immediately do so. The relief offered by this section is the exclusive remedy available to the performing party with respect to a Force Majeure Event. Neither party will have the right to claim damages or to terminate this Agreement as a result of a Force Majeure Event.
9.10 Headings. The descriptive headings of the sections and subsections of this Agreement are for convenience of reference only. They do not constitute a part of this Agreement and do not affect this Agreement’s construction or interpretation.
9.11 Counterparts. If the parties sign this Agreement in counterparts, each counterpart constitutes an original, and all counterparts, collectively, constitute only one agreement. The signatures of all the parties need not appear on the same counterpart, and delivery of a signed counterpart signature page by fax or other electronic transmission is as effective as signing and delivering an original.