Terms & Conditions
MYBYA, LLC
1. WHO WE ARE
MyBya, LLC ("MyBya", "we", "our", or "us") provides a variety of services and features directed to fitness enthusiasts and individuals through our mobile fitness and performance monitoring offerings ("Services"). The MyBya Services are provided through its mobile application (including, but not limited to, the MyBya app) and related websites (including, but not limited to, www.mybya.com) and all related subdomains. All of the above-identified applications and websites are collectively referred to as the "App" and individually as an "App Component."
2. THESE TERMS FORM A BINDING LEGAL AGREEMENT
These Terms of Use ("Terms of Use" or "Terms") constitute a legally binding agreement between you and us and govern your access to and use of our App and Services. We are providing you with access to the App and Services only if you agree to these Terms. Please read the Terms carefully. By accessing and using our App and our Services in any manner, you agree to be bound by these Terms and acknowledge that your information may be treated in accordance with our Privacy Policy. If you do not agree to adhere to these Terms, you may not use our App or Services.
We reserve the right to change these Terms and our Privacy Policy. We may also change, suspend, or end access to all or any part of the App and Services at any time, at our discretion. It is your responsibility to periodically review these Terms.
We may also require you to follow additional rules, guidelines, or terms and conditions ("Additional Terms") to access and use various features of the App and Services, to participate in certain promotions available through the App, or to receive other services offered from time to time. Any Additional Terms you agree to through the App and Services will supplement these Terms of Use. If any Additional Terms differ from the terms of these Terms of Use, the Additional Terms will take precedence over the terms of these Terms of Use, but only with respect to the matters governed by the Additional Terms.
Because these Terms apply to all of our App Components and Services, not all provisions found here apply to your use of a specific App Component or Service. This most commonly occurs when a provision is meant to govern the use of a feature that is unique to a specific App Component or Service and not available on other App Components or Services. In those cases, those provisions have no effect on the use of those App Components or Services. For instance, where App Components of ours do not collect age verification information, we do not permit Child Accounts (as defined below) on those App Components.
3. YOUR REPRESENTATIONS
BY USING AND/OR ACCESSING ANY PART OF OUR APP OR SERVICES, YOU UNCONDITIONALLY AND EXPRESSLY ACKNOWLEDGE, REPRESENT AND AGREE THAT YOU: (A) HAVE READ AND UNDERSTAND THESE TERMS; (B) UNDERSTAND THAT YOU ARE BOUND BY THESE TERMS, AND (C) WILL COMPLY WITH THESE TERMS AND ANY APPLICABLE LAWS AND REGULATIONS.
4. PRIVACY & USE OF DATA
We, both directly and through our service providers, collect, maintain, process, use and disclose various types of data to provide you with the App and Services. Subject to the terms and disclosures within our Privacy Policy, you grant us permission to access, review, analyze, gather, and otherwise use and disclose your personal information (including sensitive information) collected through your use of our App and Services.
5. CHILDREN'S ONLINE PRIVACY AND PROTECTION
We are committed to protecting the online privacy of children. Upon Account creation, if the user's reported date of birth is under 16 years of age, requiring us to obtain parental/legal guardian consent, we will designate it as a child account ("Child Account") and request the user to provide the email address of their parent or legal guardian. Child Account creation data is solely used for the purpose of obtaining parental/legal guardian consent. We will not collect any further personal information from the user or permit the user to activate the Child Account until we receive verifiable consent from the user's parent or legal guardian. We will seek verifiable consent from the parent or legal guardian after obtaining the user's name and parental/guardian email. However, if we do not receive verifiable consent from the parent/legal guardian within seventy-two (72) hours, we will delete the account and all information provided by the user. It is a violation of these Terms of Use for children to create an account by misrepresenting their age. If we have reason to believe an account is operated by a child without verified parental consent or become aware that a child has misreported his or her age or otherwise circumvented our requirements for obtaining parental/guardian consent, we will lock the Child Account and send a notification to the parent or legal guardian to inform them of the unauthorized account and to provide them the opportunity to bring the account in compliance through provision of legally recognized consent. If the account is not brought into compliance within fourteen (14) days, we will delete the account and the child's personal information. We reserve the right to delete any account (and related data) that we suspect is being used by a child under 16 without verifiable parental consent.
We allow parents and legal guardians of children under 16 to request a description of the types of information collected, to review information submitted by their children, to request the removal of any information, and to prevent further use or online collection of their children's information. Details on these procedures can be found in our Privacy Policy.
6. LICENSE TO USE THE APP AND SERVICES
Subject to these Terms, we grant you a limited, non-transferable, non-exclusive, revocable, limited license to access and use the functionality features, tools, content and information provided through our App and/or Services for the purpose of obtaining fitness and performance information, monitoring, assessment, and generating personalized exercise/training programs, communicating with us, providing your reviews and participating in features and promotions we may offer from time to time. The scope of your specific license will be defined by the account/subscription you choose. You may not use the App or Services for any other purpose without first obtaining written permission from us. If you would like broader rights than those granted in your subscription, contact us to request permission. Any license granted to you to use the App and Services is personal to you and you may not assign it to others.
7. NO RESPONSIBILITY FOR THIRD PARTIES
Through our App and Services, third parties may provide information, services and content. You acknowledge that you are solely responsible for your selection of any third party you choose to assist you with your health, exercise, or fitness and for any advice, services, or other benefits you receive from that third party. We are not responsible for any such services or benefits, whether or not the third party uses the App or Services to assist them in providing you with any services or benefits. We have no control over, are not responsible for, and do not provide support or maintenance for, any third party or any services or benefits they provide. Third parties, not us, remain solely responsible for independently adhering to all applicable privacy laws and regulations, including downstream data deletion requirements, when they access, use, download or share a user's personal information through our Services both when providing services or benefits and after the relationship with the user, and/or the user's relationship with MyBya has ended. Separate and apart from these Terms of Use, your access to and use of any third-party services or benefits may also be subject to any other agreement you have entered into (or enter into) with that third party in addition to this Agreement (a "Third-Party Agreement"). Notwithstanding any Third-Party Agreement, these Terms of Use will continue to apply to your use of the App and all Services. Any Third-Party Agreement will apply separately to any services or benefits you receive from the third party and are separate and independent from the Services you may receive from us under these Terms of Use.
8. ACCOUNTS & SUBSCRIPTIONS
We designate various types of accounts (each, an "Account") that provide different functionality to different users of the App. You may choose your Account type when you first submit a registration for the Services or the App (your "Registration").
Creating a free account gives you access to our limited catalog of free fitness and performance content and tracking which can be used. To access additional features and content, a subscription must be purchased. We reserve the right to modify and/or eliminate subscription offerings in our sole discretion with or without notice to you. Prior to authorizing any subscriptions, we will first create an account and authenticate the user.
By submitting a Registration form or creating an Account on the App, you represent to us that the information you have provided on your Registration ("Account Information") is true, accurate, current and complete and you will maintain and promptly update your Account Information using the functionality provided through the App to keep it true, accurate, current and complete.
- A "Free User Account" allows only you limited access to view, upload and access your own content, as well as the free content and features made available through the Free User Account. Free User Accounts do not have many of the features and functions available to you if you register for one of the other Account types below.
- A "Paid User Account" allows only you to greater access to view and download content and to access and use additional features and functions not available with a Free User Account.
You may convert the type of Account you have by emailing us or by making a change through your account. Please review these Terms of Use and Privacy Policy for the ways that changing your Account affects your access to your Account and the scope of your Services.
9. ACCOUNT FEES AND PAYMENTS
- Paid User Accounts. You are required to pay the fees for your Paid User Account for the terms of the plan selected in your Registration prior to obtaining access to your Account. All fees will be payable in advance, unless otherwise specified in your Registration on the App. All plans automatically renew unless you terminate your Account within the time specified in your Registration or on the App for your plan before your plan is scheduled to renew. You are free to terminate your Paid User Account at any time. We will not provide any refund upon termination, but you will continue to have access to your Account after you have terminated your Paid User Account until the expiration of your plan's current term.
10. TRIAL ACCESS
If you access or use any version of the App and Services designated as "trial", "evaluation", "not for resale", or other similar designation ("Evaluation Versions"), you may use the Evaluation Version only during the evaluation period and only for evaluation purposes. You may not use any materials, features or data provided in or through the Evaluation Version for anything other than non-commercial, educational purposes. You may register and use only one trial or evaluation account. You may not set up multiple trial accounts by using different email addresses to avoid paying for the App and Services. If we learn that you are abusing the trial access opportunities, we may block you from creating further accounts.
11. ACCOUNT REQUIREMENTS
You will be required to create an account that is verified by us to access the App and Services. You are responsible for the accuracy of all information you provide to us and expressly agree to provide accurate information and to update your account as necessary to keep it accurate. We will use any personal information we collect from you in accordance with our Privacy Policy. You will also be required to set a password to create your account.
You agree that: (a) you will be solely responsible for the security of your account credentials and any activity (whether authorized or unauthorized) that takes place through your account; (b) you will notify us immediately of any unauthorized uses of your account or any other breach of security; (c) you will not submit false information to us or anyone else through the App or Services; (d) you will not create multiple trial accounts under different emails to obtain free services; (e) you will not allow others to access and use your account; (f) you will be responsible for your own Internet connection and information technology infrastructure (including computers, software, hardware, databases, electronic systems, and networks) that are necessary to access and use the App and Services; (g) use of Paid User Accounts is limited to your own personal, non-commercial use only.
12. ACCOUNT & DATA QUALITY CONTROL
We are implementing processes and procedures to improve the accuracy of our account data. From time to time, accounts are created with inaccurate information and/or remain unused for long periods of time. We reserve the right to disable and/or delete any accounts and or data that we suspect to be inaccurate and/or are unable to verify.
13. RESTRICTIONS ON THE USE OF THIRD PARTY SERVICES AND TOOLS
We make our App and Services compatible with various devices, mobile apps and third-party software that you can choose to connect with. Examples include (without limitation) wearables from various providers. For more information on our compatibility options, visit our website at www.mybya.com.
You may not utilize any third-party technologies or services to obtain services or metrics, including (without limitation), options to sync devices with your Account, when such services are provided by MyBya only if you have a paid Account.
14. TERM AND TERMINATION
- Term. We will provide the Services to you for your particular Account commencing upon the payment and completion of the Registration for your Account for the term that you select unless your Account is terminated before the end of the term as permitted in these Terms of Use.
- Termination By Us. We reserve the right to disable your password and terminate your access to your Account regardless of the type of Account you have if (a) you fail to comply with these Terms of Use, including without limitation, failing to comply with the password restrictions or providing false Account Information, or (b) for a Free User Account, for any reason or no reason. If we do so, we may also choose to delete your Account Information or remove content you have posted or uploaded to the App or your Account. We will not provide any refund if your Account is terminated under this Section.
- Termination by You. If you notify us that you wish to terminate your Account, regardless of the type of Account you have, we will promptly take such action as necessary to terminate your Account. Upon such termination, we may also choose to delete your Account Information or remove content you have posted or uploaded to the App or your Account. We will not provide any refund if your Account is terminated under this Section.
- Other Termination or Modification. In addition to the termination rights above, we have the right to terminate the Services at any time or to modify or change the Services to eliminate any or all of the Services.
- Suspension - General. Without limiting our right to terminate your Account, we may also immediately and indefinitely suspend your access to some or all of the App, Services and your Account, either in whole or in part, including, without limitation, all of your content, with or without notice to you, upon any actual, threatened, or suspected breach of these Terms of Use or applicable law or upon any other conduct we deem to be inappropriate or detrimental to the App, Services, us, or any other customer or user.
- Suspension - Inactivity. We reserve the right to disable your password and suspend your access to your Account if you have had no activity on your Account for a period of 60 days. If you notify us following any such suspension, provided you are not then in breach of these Terms of Use, you may reactivate your Account by paying all applicable fees required in connection with initial activation of an Account.
15. NO MEDICAL ADVICE
THE SERVICES AND CONTENT WE PROVIDE THROUGH THE APP, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER USERS OR THIRD PARTIES IS NOT INTENDED TO BE, AND SHOULD NOT BE USED IN PLACE OF: (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (B) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. SHOULD YOU HAVE ANY HEALTHCARE RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON THIS APP. AND YOU SHOULD NOT USE OUR CONTENT FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF OUR CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND US. WE ARE NOT A HEALTHCARE PROVIDER OR BUSINESS ASSOCIATE OF A HEALTHCARE PROVIDER OR COVERED ENTITY AND ARE NOT SUBJECT TO THE PRIVACY RULE OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA).
16. USER CONTENT
The App and Services contain features that allow users to post, submit, publish, display, or transmit to us and to others certain data, recordings and materials, including (without limitation) biomarker data, performance information, workout logs, training data and analysis, nutritional data, routes, results and information, comments, reviews and other materials ("User Content"). You retain all rights in and to your User Content.
- License Grant. By uploading or creating User Content through the App or Services, you grant us and our related companies, agents, sublicensees, service providers, instructors, contractors and assigns ("Licensed Parties"), an irrevocable, worldwide, royalty-free, fully paid up, sublicensable perpetual license to use, store, analyze and distribute your User Content so that we can provide our App and Services to you. We will not pay you for the use of your User Content and we reserve the right to remove or delete any User Content, in our sole discretion. It is your responsibility to keep a copy of your own User Content in the event it is lost, altered or destroyed.
- Content Standards. Prohibited Content. All User Content that you post, submit, publish, display, or transmit using the App or Services must comply with our content standards. We reserve the right to remove or delete any and all User Content hosted or transmitted through the App or Services that does not comply with our content standards or these Terms. While our content standards may change over time, examples of User Content that violates our content standards and is prohibited includes (without limitation) User Content that:
- is patently offensive and/or promotes physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person;
- exploits people in a sexual or violent manner, or contains nudity, violence, or provides any telephone numbers, street addresses, last names or email addresses of anyone except yourself;
- promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- violates any intellectual property or other proprietary right of any third party, including content that promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
- involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging or "spamming";
- contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
- furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
- furthers or promotes any activity or enterprise or provides instructional information about activities including, but not limited to breaching the MyBya Terms of Use or Privacy Policy;
- solicits passwords or personal identifying information for commercial or unlawful purposes from other members;
- involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or
- includes a photograph of another person that you have posted without that person's consent or, in the case of children under the age of thirteen (13), parental consent, or otherwise constitutes an invasion of an individual's privacy or infringement of publicity rights, or contains a virus or other harmful component.
- Non-Confidential. All User Content you post, submit, publish, display, or transmit using the App or Services will be deemed non-confidential and, except for any copyright you own (such as in an original composition), non-proprietary.
- You are Responsible. You understand and acknowledge that you are responsible for all User Content you post, submit, publish, display, transmit or otherwise upload or introduce to the App and/or Services, and you, not MyBya, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any content you provide or create through the App and Services.
- Representations and Warranties. You represent and warrant that (a) you are solely responsible for User Content you upload or otherwise provide to us, (b) you own all rights in and to your User Content and/or have obtained appropriate rights and permissions from any and all other persons and/or entities who own, manage or otherwise claim any rights with respect to such User Content, (c) the Licensed Parties' use of your User Content as described herein will not violate the rights, including but not limited to copyright, trademark, patent, trade secret, privacy, publicity, moral, proprietary or other rights, of any third party, or any law, rule or regulation, (d) the User Content is not libelous, defamatory, obscene, pornographic, abusive, indecent, threatening, harassing, hateful, or offensive or otherwise unlawful, and (e) all User Content complies with these Terms and applicable law.
- Indemnity. To the fullest extent allowable by law, you release the Licensed Parties from, and agree to indemnify, defend and hold harmless the Licensed Parties for, all claims, demands and damages of every kind and nature, known and unknown, arising out of or in any way connected with your User Content.
17. INTELLECTUAL PROPERTY & SHARING CONTENT
You agree that you will not use the App or Services to infringe the copyrights or other intellectual property rights of others in any way. Without limiting the foregoing, you agree not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate content received or generated through the App or Services, including (without limitation) to others in the same company or organization, without the express prior written consent of the copyright holder(s) and us, as applicable.
18. OWNERSHIP RIGHTS
Our App, Services and content are confidential and proprietary to us and are provided only to authorized licensees/users. Our App and Services contain and make available works and content owned by third parties. You may not use the App or Services (or the content thereon, including third-party content) in any manner or for any purpose that would constitute infringement of our, its licensors', or other users' intellectual property rights. You expressly acknowledge and agree that we and our content providers (as applicable) own all content, trademarks, copyrights and other intellectual property located on and related to the App and Services, excepting only the User Content described below.
The content offered through our App and Services may change from time to time. We reserve the right to modify and/or remove content from the App and Services at any time without notice to its users. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CONTENT AVAILABLE TO YOU THROUGH THE APP AND SERVICES MAY BE USED ONLY FOR YOUR PERSONAL, NON-COMMERCIAL, OR EDUCATIONAL USE. YOU MAY NOT SELL OR DISTRIBUTE ANY CONTENT OR MATERIAL OBTAINED THROUGH THE APP OR SERVICES.
- User Content. The App and content we and others provide are protected under applicable intellectual property laws. In addition, the User Content you provide becomes part of a collective work under U.S. and international copyright laws and treaties. While you retain ownership of your User Content, we own the copyright in the selection, coordination, and arrangement of the content, including User Content, on the App.
- Content License. While you maintain a valid Account with us, we grant you a personal, limited, revocable, non-sublicensable license to download and print copies of any portion of the content of the App to which you have properly gained access for your personal use. The foregoing license is subject to these Terms of Use and does not include the right to use any data mining, robots or similar automated means or methods to access any content on the App. This license is revocable by us at any time without notice and with or without cause.
- Content Restrictions. Unless you are expressly granted rights to do so by MyBya under a separate agreement from these Terms of Use, you may not and you may not permit others to copy, distribute, perform or display publicly, prepare derivative works based on, broadcast, exploit or use any part of the content on the App (except your User Content) except as expressly provided in these Terms of Use without our prior written permission. Any use of the App, including the content of the App (except your User Content), other than as specifically authorized in these Terms of Use (or any such separate agreement with us), is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. You will not remove, modify or obscure any copyright, trademark, or other proprietary notices from any content (except your User Content).
- Software. Unless otherwise expressly stated in a license or other agreement separate from these Terms that you may have entered into (or may enter into) with us relating to any software, code, or APIs available on or accessible through the App or Services (collectively, "Software") (each such license or other agreement, a "Software License Agreement"), we grant you a personal, limited, non-exclusive right and license to download, install, and execute the Software in accordance with any instructions we provide to you, solely for your own purposes in connection with your access to and use of the App and Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), you are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any intellectual property rights therein or related thereto, and you may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without our prior written permission. Except as set forth in these Terms, any Software License Agreement will control in the event of a conflict between these Terms and that Software License Agreement.
- App Restrictions. You acknowledge that the Services, App, Software, and all other databases, software, hardware and other technology used to provide the Services and operate the App (collectively, our "Technology") and their structure, organization, and underlying data information and source code constitute our valuable trade secrets. You will not, and will not permit any third party to: (a) access or use the Technology, in whole or in part, except as expressly provided in these Terms of Use; (b) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (c) use automated scripts to collect information from or otherwise interact with the Technology; (d) alter, modify, reproduce, create derivative works of the Technology; (e) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of your rights to access or use the Technology, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Technology, or access thereto, available to any third party; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (h) use the Technology for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; or (i) interfere in any manner with the operation or hosting of the Technology, or attempt to gain unauthorized access to the Technology.
- Ownership of Trademarks. The trademarks and service marks used or displayed on the App ("Trademarks") are registered and unregistered trademarks of MyBya and its licensors or affiliates. Your license to access the App does not constitute a license to use any Trademarks and you may not use any Trademarks displayed on the App without the prior express written permission of MyBya or the trademark owner.
19. FEEDBACK
We welcome your comments, feedback, suggestions, and other communications regarding the App, Services and content (your "Feedback"). The Feedback you provide to us will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.
20. LINKS TO THE APP AND RSS FEEDS
We grant you permission to create hyperlinks to the home page of public pages within the App, provided that the hyperlink accurately describes the content as it appears on the applicable page of the App. You are further granted a right to implement the RSS feeds located on the App, for your personal and non-commercial use, solely as described on the App. We reserve the right to revoke these licenses generally, or your right to use specific links to RSS feeds, at any time, with or without cause. If you wish to obtain a license to use, distribute, or otherwise feature our RSS feeds for commercial purposes, please contact us at info@mybya.com and request a license for commercial use. Under no circumstances may you 'frame' the App or any of its content or copy portions of the App to a server, except as part of an Internet service provider's incidental caching of pages. If you wish to link to any App Component other than as described herein, you must execute a separate agreement with us. Please contact us at info@mybya.com.
21. SUPPORT
We may provide you with support for your Account ("Support") via the following methods, which may include, without limitation: online self-help support center, forums, the App, email, and voicemail. For current information regarding Support, please visit our website at www.mybya.com. We will use commercially reasonable efforts to respond to a Support request within a reasonable time after the request is placed. However, we do not guarantee the timeliness of any response. Support is available from 9:00 a.m. to 5:00 p.m. Eastern Standard Time on Monday through Friday, excluding USA holidays, provided that we do not guarantee any level of Support and may change our Support practices at any time.
22. MOBILE SOFTWARE FROM THE APPLE APP STORE
THIS PARAGRAPH APPLIES ONLY IF YOU DOWNLOAD OUR APPLICATION THROUGH THE APPLE APP STORE. We provide these Terms, which apply to your use of the App and Services. You acknowledge and agree that these Terms apply to you and to us, not Apple, and that Apple has no responsibility for the App, Services or content thereon. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App or Services. You and we acknowledge that Apple is not responsible for addressing any claims by you or any third party relating to the App or Services, including, but not limited to: (a) product liability claims; (b) any claim that the App or Services fail to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. You and we acknowledge that, in the event of any third-party claim that the App or Services, or your possession and use of the App, Services and/or content therein infringes that third party's intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms or applicable law. You and we acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of the agreement, and that, upon your acceptance of the terms of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this provision of these Terms against you as a third-party beneficiary thereof.
23. YOUR OBLIGATIONS TO US
In addition to the representations provided above, in exchange for use of the App and/or any Services, you represent that you will not engage in any of the following activities, directly or indirectly:
- Modify, adapt, translate or prepare derivative works or improvements to any part of the Software, App or Services;
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App or Services to any person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- Reverse engineer, disassemble, decompile, decode, or adapt the App or Services, or otherwise attempt to derive or gain access to the source code of the App or Services in whole or in part;
- Access or attempt to access the App or Services by any means other than the interface provided or authorized by us;
- Bypass or breach any security device or feature used for or contained in the App or Services;
- Use the App or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity, or that violates any applicable law;
- Use the App or Services for purposes of: (a) benchmarking or competitive analysis of the App and/or Services; (b) developing, using, or providing a competing software product or service, or (c) any other purpose that is to our detriment or commercial disadvantage;
- Use or submit any offensive content including, without limitation, obscene language, obscene references, obscene images, threatening or harassing messages, and defamatory statements;
- Submit or post any false, misleading, or fraudulent statements or content;
- Engage in activity that is unauthorized advertisements or promotions, including unauthorized solicitation of other users;
- Collect, use, or share personal information of other users of the App or Services without that user's consent;
- Violate any applicable laws or regulations, in relation to your access to, use, or sharing of other users' personal information or otherwise misuse the personal information;
- Delete the data of others including (without limitation) deletion of user data without the user's permission;
- Engage in activity that compromises the App or Services (such activity may include, without limitation, hacking, IP attacks, worms, viruses, spamming, phishing, cancel bots, Trojan horses, mail bombing or crashing, or introducing malware);
- Engage in any activity designed to impede the use of the App or Services by other users, including overloading and flooding;
- Access the App or Services by means of automated process, spiders, bots, or similar device;
- Use any data mining or similar data gathering and extraction methods in connection with the App or Services;
- Use, or assist others to use, the App or Services in any manner that is not expressly permitted by these Terms; or
- Allowing unauthorized access, whether intentionally or unintentionally, to the App and/or Services.
You also represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
The license granted to you under these Terms to access and use the App and Services shall terminate if you violate any of the restrictions in these Terms. We reserve the right to disclose the identity of anyone posting or transmitting information or materials violating the above prohibitions.
24. ELECTRONIC MARKETING
By agreeing to these Terms, you expressly agree and consent to receive all notices from us relating to our product offerings, promotions, your personal information, your Account or any license or relationship that you have with us via electronic mail via the address you have provided to us as your email address. You have the right to revoke consent to receive such notices via electronic mail, but until such consent is revoked, your consent to receive notices via electronic mail will remain in full force and effect.
25. ACCESSIBILITY
We value all of our users, and it is our goal to provide an excellent experience for all our users, including our users with disabilities. You understand and accept, however, that some of the features of the App and Services may not be fully accessible because they are provided by third-parties or have errors. If you have comments regarding the accessibility of any part of the App or Services, or would like to report an issue you are experiencing, please email us at info@mybya.com. You expressly agree to attempt to work with us in good faith to obtain access to our App and Services and that you will not threaten or assert any claims regarding accessibility against us unless you have first provided us with notice of the inaccessibility problem(s) and a thirty (30) day period to address the problem.
26. DISCLAIMERS AND LIMITS ON LIABILITY; WAIVER OF CLASS ACTION RIGHTS; WAIVER OF JURY TRIAL
a. Limited Warranty. Except in the case of Free User Accounts, which are provided without any warranty whatsoever, we will use commercially reasonable efforts to provide you with the App and Services relating to your Account during the term of your Account. In the event of a breach of this warranty, please notify us at infot@mybya.com, and we will re-perform the Services as necessary to correct the problem. This warranty remedy only applies if you provide us with notice of the issue within 30 days. The warranty remedy provided in this Section shall be your sole and exclusive remedy with respect to any breach of our limited warranty.
b. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE APP AND SERVICES, AND ALL INFORMATION AND CONTENT AVAILABLE THROUGH THE APP AND SERVICES ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY IMPLIED OR EXPRESS WARRANTY OF ANY KIND (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, SECURITY, CORRECTNESS, ACCESSIBILITY AND NON-INFRINGEMENT). MYBYA, ITS PARENT COMPANY, AFFILIATES, OFFICERS, DIRECTORS, DISTRIBUTORS, MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS, AGENTS, AND SUPPLIERS (COLLECTIVELY THE "MYBYA PARTIES") MAKE NO REPRESENTATION OR WARRANTY REGARDING: (i) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE APP OR SERVICES, OR THAT THEY WILL MEET YOUR EXPECTATIONS; (ii) THE CONTINUED AVAILABILITY, RELIABILITY, ACCURACY, ACCESSIBILITY, RESULTS OR PERFORMANCE OF THE APP AND SERVICES; (iii) THE EXISTENCE (OR ABSENCE) OF ANY VIRUS, WORM, MALWARE, MALICIOUS CODE OR OTHER DISABLING DEVICES OR HARMFUL CODE FROM ANY SOURCES; (iv) THE UNAUTHORIZED ACCESS TO OR USE OF YOUR INFORMATION BY THIRD PARTIES; (v) ANY TECHNICAL FAILURES (INCLUDING HARDWARE OR SOFTWARE FAILURES); (vi) LOSS, USE OR MISUSE OF YOUR DATA; OR (vii) OUTCOMES OR INTENDED RESULTS FROM USE OF THE APP OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE APP OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS SECTION.
c. No Liability for Third-Party Content. WE ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED THROUGH THE APP AND SERVICES BY OTHERS, INCLUDING, WITHOUT LIMITATION, BY THIRD-PARTY SOURCES OR OTHER APP USERS. YOU WILL NOT ASSERT ANY CLAIM THAT YOU MAY HAVE AGAINST A THIRD PARTY OR OTHER APP USER AGAINST MYBYA.
d. Assumption of Risk. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE APP AND SERVICES AND ANY ACCOMPANYING MATERIALS IS WITH YOU. YOU ASSUME ALL RESPONSIBILITY FOR SELECTION OF THE FEATURES, CONTENT AND OTHER MATERIALS TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE APP AND SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY THE MYBYA PARTIES SHALL CREATE ANY OTHER WARRANTY, AND YOU MAY NOT RELY ON SUCH INFORMATION OR ADVICE.
e. Right to Modify and Terminate App and Services. We are entitled to terminate all or part of any of the App and Services at any time, in our sole discretion without notice to you.
f. Exclusion of Certain Types of Damages. You agree that the MYBYA PARTIES are not liable for any consequential, special, indirect, exemplary, or punitive damages relating to your use of the App and Services.
g. Cap on Liability. IN NO EVENT SHALL THE MYBYA PARTIES' TOTAL LIABILITY TO YOU FOR ANY DAMAGES, LOSSES, FEES AND EXPENSES (INCLUDING ATTORNEYS' FEES), WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO US FOR THE USE OF THE APP AND SERVICES WITHIN THE LAST TWELVE MONTHS. IF YOU LIVE IN A STATE OR COUNTRY THAT DOES NOT ALLOW THE WAIVER OF CERTAIN WARRANTIES, LIMITATIONS OR DAMAGES WAIVERS DESCRIBED IN THIS SECTION, SOME OF THESE PROVISIONS MAY NOT APPLY TO YOU.
h. Notice of Claims. YOU AGREE TO PROMPTLY NOTIFY US IN WRITING IF YOU BELIEVE YOU HAVE ANY CLAIM AGAINST ANY OF THE MYBYA PARTIES AND YOU AGREE THAT IF YOU HAVE ANY CLAIM AGAINST ANY OF THE MYBYA PARTIES, YOU WILL BRING IT WITHIN ONE YEAR FROM THE TIME IT ARISES (OR SUCH SHORTER PERIOD PERMITTED BY APPLICABLE LAW).
i. Waiver of Class Action Rights. YOU AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
27. INDEMNIFICATION
You agree to indemnify, defend and hold harmless the MyBya Parties and any of our third-party service providers, from and against any and all claims, demands, actions, liability, fines, penalties and expenses, whether based on warranty, contract, negligence, strict liability or otherwise, that may arise from: (a) your breach of these Terms, (b) your access or use of the App and/or Services; (c) your intellectual property infringement or the intellectual property infringement of any third-party, and (d) any unauthorized activity through your Account.
28. THIRD-PARTY LINKS
The App and Services may contain links to other third-party websites. Our linking to such third-party websites does not imply an endorsement or sponsorship of such sites, or the information, products or services offered on or through the sites. Such third-party websites are maintained by persons or organizations over which we exercise no control. We disclaim any responsibility for the content or results from your use of such third-party websites.
29. COPYRIGHT COMPLAINTS
We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with the following information.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- Description of the copyrighted work that you claim has been infringed;
- The location on the App of the material that you claim is infringing;
- Your address, telephone number and e-mail address.
- A statement that your claim of infringement is based on a good faith belief; and
- A statement made under penalty of perjury that the information you have provided is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our copyright agent for notice of claims of copyright infringement can be reached as follows:
MyBya, LLC
Attn: Shannon Grady, Founder and CEO
30. MISCELLANEOUS
- Severability. If any term or provision in these Terms is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from these Terms in its entirety and the remainder of these Terms shall survive with the said offending provision eliminated.
- Assignment. You may not assign, delegate or otherwise transfer your Account or your rights or obligations under these Terms of Use. We have the right, in our sole discretion, to transfer or assign all or any part of its rights under these Terms of Use to any third party, and will have the right to delegate or use third party contractors to fulfill its duties and obligations under these Terms of Use.
- Notices. We may send you any notices via e-mail or regular mail to the address we have on file for you. We may provide notice to you by displaying the notice on the App as described in these Terms. You will provide any notices to us solely as directed in these Terms of Use or in writing at the address set forth below.
- Waiver. Failure to insist upon strict compliance with any of the terms, covenants and conditions hereof will not be deemed a waiver of such terms, covenants and conditions, nor will any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. No waiver will be valid unless in writing and signed by an authorized officer of MyBya.
- Amendment. Except as expressly set forth in these Terms, these Terms may be amended or modified only by a writing signed by both parties. All waivers under these Terms of Use must be in writing. Any waiver or failure to enforce any provision of these Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Entire Agreement. These Terms contain the entire agreement between the parties with respect to the App and Services, and supersedes all prior and contemporaneous representations, promises, agreements and understandings, whether oral or written, between the parties. If any provision of these Terms is deemed to be invalid or unenforceable, the remaining provisions of these Terms shall be valid and binding and of like effect as though such provision were not included.
- Survival. Sections 3, 4, 7, 11, 13, 15-19, 23, 26-30, and any other provision that by its nature should survive, shall survive any termination or expiration of these Terms of Use. In addition, any perpetual or irrevocable rights or licenses granted to MyBya will survive termination or expiration of these Terms of Use.
- Controlling Law and Venue. It is understood and agreed that all the construction and interpretation of these Terms and the relationship between the parties shall at all times and in all respects be governed by the internal laws of the State of Pennsylvania, without giving effect to the conflict of laws provisions thereof. Venue of any action brought to enforce or relating to these Terms or arising out of the relationship between the parties shall be brought exclusively in the courts located in Pennsylvania, USA.
- Costs and Attorneys' Fees. If we successfully enforce or defend our rights under these Terms or otherwise, we shall be entitled to recover our reasonable attorneys' fees and expenses from you.
31. QUESTIONS
If you have any questions about us, the App, our Services, our Privacy Policy, or these Terms, you may contact us at:
MyBya, LLC
Visit us at www.mybya.com