This Merchant Agreement, effective as of the Effective Date, is between Melian Labs Inc. dba MyTime, a Delaware corporation (“Melian Labs” or “MyTime”) and you (“Merchant”) for a merchant account with MyTime and for use of the MyTime Scheduler™ (“MyTime Scheduler™”). MyTime operates the www.mytime.com website (“Website”), the MyTime mobile application (“MyTime Application”), the mobile and touch versions of the Website, and individual sites or merchant-specific, city-specific, or other area-specific sites we have now or in the future. The MyTime Application, the Website, and links contained within or otherwise available through external hyperlinks within our Site or the MyTime Application (the “Microsites”), and the MyTime Scheduler™, will be collectively referred to as the “Site” or “MyTime Service” in this Merchant Agreement. By using the MyTime Scheduler™ or creating a MyTime merchant account, you (“you” and “your” shall refer to each Merchant (as defined herein); users of the MyTime Service that are not Merchants are referred to as “End User(s)” or “Users”) agree that you are authorized to accept the terms set forth below on behalf of yourself and your company and agree to this Merchant Agreement (defined below). If you do not agree to be subject to this Merchant Agreement, do not use the MyTime Scheduler™ or create a merchant account with MyTime. By continuing to use the MyTime Scheduler™ or your MyTime merchant account, you agree to be bound by this Merchant Agreement.
Through the MyTime Marketplace™, MyTime offers consumers, users of MyTime, and clients of Merchants that were added through MyTime Scheduler (collectively, “Consumer(s)”) the convenience of booking appointments through www.mytime.com and the MyTime Marketplace™ mobile applications, in addition to related promotional services (collectively, the “Site”), to offer its Services. The MyTime Marketplace™ provides Merchants with a venue to post availability of Services and for Consumers to learn when these services are available, book an appointment for the desired Service, and, when applicable, to book appointments and pay for Merchant’s Services through the Site.
Through the MyTime Scheduler™, MyTime provides Merchants with various websites, services, and software that facilitate online scheduling of appointments for services, point of sale services, automated and two-way communication between Merchants and Consumers, and other customer relationship management tools.
Therefore, in consideration of the mutual covenants of the Parties and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows:
1. Definitions. Terms in the preamble have their assigned meanings and each of the following terms has the meaning assigned to it.
1.1 “Agreement” or “Merchant Agreement” means this Merchant Agreement, which may be amended at any time and without notice by MyTime.
1.2 “Appointment Time” means the specific date(s) and time(s) scheduled for an Order.
1.3 “Booked and Paid Order” means an Order that a Consumer has paid for and remitted payment through the Site.
1.4 “Cancellation Period” means the advance notice prior to the scheduled appointment time required to effect an appointment cancellation. The cancellation period is determined by each merchant during profile setup.
1.5 “Effective Date” means the date Merchant registers for a merchant account with MyTime.
1.6 “Legitimate Cancellation” means cancellations made by a Consumer prior to the Cancellation Period established by the merchant or cancellations made by a Merchant at any time.
1.7 “Merchant Offering” means the Merchant Services being delivered from Merchant at a specified date and time.
1.8 “MyTime Commission” means a commission on the total amount received from Consumers of an Order for any Customer of that Merchant who books an appointment, purchases a Gift Card, purchases a Membership, or purchases a Package through the MyTime Marketplace. Certain exclusions may apply in which the MyTime Commission will be waived. The amount of the MyTime Commission and the conditions under which Commissions will be waived are set forth within the Merchant’s account settings.
1.9 “MyTime Marketplace™” means the portion of the Site where consumers come to find and book Merchant Services that are listed. The MyTime Marketplace may be activated or deactivated by the Merchant at any time from the My Account section of the MyTime Website. A MyTime Scheduler subscription is not necessary to be listed in the MyTime Marketplace.
1.10 “MyTime Scheduler™ Fee” means the subscription licensing fee that subscribers to the MyTime Scheduler™ must pay for using MyTime’s online scheduling program. The specifics of the MyTime Scheduler™ Fee, and the features of this product that are activated as part of the subscription, can be found in the My Account section of the MyTime Website.
1.11 “Order(s)” means a Consumer scheduling an appointment, purchasing a gift card, purchasing a package of Services, or purchasing a membership entitling Consumer to Services or discounts on Services from a Merchant; Order can also mean a Merchant scheduling an appointment for a consumer for Services; and, for certain Merchants, taking payment for the Services through the Site.
1.12 “Services” means any products or services offered by Merchants on MyTime.
1.13 “Total Remittance Amount” means the aggregate amount due to Merchant when Consumer makes payment for the Merchant Services through the application for a Booked and Paid Order equal to (i) the total amount collected by MyTime from the Consumer for such Booked and Paid Order less (ii) (A) the MyTime Commission, if applicable, and (B) the Transaction Fee, if applicable.
1.14 Transaction Fee means the per transaction fee plus percentage of gross revenues collected by MyTime to cover credit card fees. Transaction Fees are only applicable when payment is made through the Site (including through MyTime POS, MyTime Marketplace, or MyTime Scheduler), and MyTime Merchants can decide whether or not to accept payment for Orders through MyTime. Current Transaction Fees are published on the MyTime Website, or in some cases, negotiated in a separate agreement with the Merchant. Transaction Fees are not returned when a Transaction is refunded (see “Refund” below).
1.15 “Unit Price” means the discounted price for the Merchant Offering.
1.16 Chargeback refers to a charge drawn against MyTime, its Managed Accounts, or Merchant as a result of a dispute by a purchaser, card-holder, or Consumer through our payment processor.
1.17 Refund refers to any transaction reversed by Merchant, or in some cases, the Client or MyTime.
1.18 Managed Accounts refers to Merchant’s Stripe Connect subaccount established through MyTime.
1.19 Reserve Account refers to a Stripe Connect holding account managed by MyTime and Stripe.
1.20 Payment Processor for the purposes of this Agreement refers to Stripe, Inc, (“Stripe”), its affiliated Payment Networks, Acquiring and Issuing Banks, and their payment processors such as Wells Fargo.
1.21 Bank Account refers to Merchant’s own business banking account
1.22 Payment Services refers to all payouts and disbursements provided by MyTime and its Payment Processors, including via PayPal, Direct Deposit, and check.
1.23 Transaction Services refers to all credit or debit card processing services (either provided by or managed by MyTime or its Payment Processor), including charging, refunding, reversing, and adjusting transactions.
2. MyTime Marketplace™
(a) Promotion and Publication of Services in MyTime Marketplace™. If Merchant elects to list their business in the MyTime Marketplace, MyTime shall promote Merchant Services in the MyTime Marketplace™, including in connection with the MyTime Website, MyTime’s mobile applications, or Affiliate sites and Affiliate mobile applications in accordance with this Section of the Agreement. In order to maximize the exposure of your business online and the number of appointments scheduled through the Site, MyTime may, at its sole discretion, enter into agreements with third party websites and businesses, optimize any current or future Internet listings for your business to take advantage of search engine marketing, lead generation or social networking opportunities, and perform any other acts MyTime deems appropriate to increase traffic and use of the Services. MyTime may promote Merchant’s business and Services through a variety of online and offline channels, including: advertising, promotion mediums, social media accounts, search engines, Google, Google AdWords, keyword advertising, Facebook Ads, Twitter, email distribution lists, MyTime’s homepage, email newsletters, featured service offerings of the day, third-party marketplaces, business partner websites or mobile applications, or through MyTime/s affiliates and their networks. Such promotional efforts may include Merchant name, scheduling information, menu, service descriptions, pricing, and other data relating to the Merchant’s business. In addition, from time to time, MyTime may provide Consumers with additional information on Merchants and the services or products they offer.
(b) Deactivation from MyTime Marketplace. A merchant can, at any time, deactivate the marketing of their services in the MyTime Marketplace from the My Account section of the MyTime Website.
(c) Profile Updating. MyTime may add, edit, rephrase, or update information, including services, variations of services, pricing updates, staff member names, photographs and other information, on a Merchant’s MyTime Marketplace profile, so long as MyTime reasonably believes the information is accurate. MyTime may use information available on Merchant’s own website, Facebook or other social media pages, or third-party sites, including Yelp and other consumer review websites, or received through the MyTime Scheduler™. Merchants may request MyTime to remove or stop using any information obtained from Merchant website by emailing support [at] mytime.com.
(d) Third Party and Affiliate Websites and Applications. MyTime may publish or promote any information acquired under this Agreement, including calendar availability, business information, service descriptions and prices, on any third-party websites or mobile applications. MyTime may also make it possible to book and/or pay for Services through an embedded widget or Application Program Interface (API) on third-party websites or mobile applications. MyTime is not obligated to promote all Merchant Services using these third party and affiliate websites and mobile applications.
(e) Termination. MyTime may terminate the publication or promotion of the Services in the MyTime Marketplace at any time.
(f) Orders. Merchant is considered the seller of the Merchant Services described in the Order, while MyTime is solely responsible for promoting the Services pursuant to this Section 3 of this Agreement. After a MyTime user books an Order on MyTime, details of the Services will be sent to the Consumer and Merchant by MyTime electronically. The Consumer may then use the Order for Services from the Merchant. Merchant must honor the terms of the Order, including any listed Appointment Time. Merchant is solely responsible for all customer service in connection with an Order and for supplying all Merchant Services specified in the Order. Merchant shall honor all Orders that are scheduled using MyTime. Merchant is responsible for accurately listing any applicable Expiration Date for each Order. If Merchant omits an Expiration Date for the Order, Merchant shall accept the Order at any time. Additionally, Merchant shall honor Orders beyond their stated expiration dates as may be required under applicable law.
(g) Order Refunds. If a Consumer only receives Services that are less than the value of the amount paid for the Order, Merchant shall issue a credit or cash equal to the difference between the face value and the amount redeemed if required by law. Merchant may not impose any extra or additional fees or charges that contradict or otherwise limit the terms of any Order.
3. MyTime Scheduler™
(a) The MyTime Scheduler™ is a subscription-based, comprehensive online scheduling, customer relations management, and automated marketing tool for merchants, including creating and modifying appointments for their clients regardless of whether or not they were booked through the MyTime Marketplace™. The MyTime Scheduler™ allows merchants to place, accept, conclude, keep records of, manage and fulfill orders for the provision of products and services online or in-store. MyTime Scheduler™ also allows merchants to create client records, notes, and communicate and chat with clients. Clients of Merchants using MyTime Scheduler™ can make and edit appointments online directly through their profile page on the MyTime Website or via the Merchant’s own Website at the Merchant’s discretion.
(b) MyTime neither represents either the seller or the buyer in any transactions, nor does it control—and is not liable to or responsible for—the quality, safety, lawfulness or availability of the products or services offered on the Site or the ability or inability of the merchants to complete a sale or the ability of buyers to complete a purchase. Merchant acknowledges and agrees that it is fully assuming the risks of conducting any purchase and sale transactions in connection with using the Site or Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to Services that are the subject of transactions using the MyTime Scheduler™. Each Merchant agrees that MyTime shall not be liable or responsible for any damages, claims, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any of the foregoing risks.
(c) Merchants are solely responsible for all of the terms and conditions of the transactions conducted on, through or as a result of use of the MyTime Scheduler™, including, without limitation, terms regarding payment, cancellations, fees, and taxes.
(d) Merchant agrees to provide all information and materials as may be reasonably required by MyTime in connection with its transactions conducted on, through or as a result of use of the MyTime Scheduler™. MyTime has the right to suspend or terminate any Merchant’s account if the Merchant fails to provide the required information and materials.
(e) For Merchants that use MyTime Scheduler™, MyTime has the right to promote the Merchant’s Services as set forth above in Section 3. Also, Merchants using the MyTime Scheduler™ will have their business and Services listed in the MyTime Marketplace™ by default, but they may delist their profile from the MyTime Marketplace at any time through the Merchant’s account settings, regardless of the Merchant’s MyTime Scheduler subscription plan or contract duration.
(f) In the event that any user has a dispute with any party to a transaction, the Merchant agrees to release and indemnify MyTime (and its agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such transaction.
(g) MyTime may access merchant’s calendar for the following purposes:
(i) Merchant Availability. Access Merchant’s Calendar in order to determine Merchant’s availability and appointment time preferences, and to write appointments and update customer data in Merchant’s calendar or CRM system.
(ii) Client Marketing. MyTime may access Merchant’s client contact information, unless Merchant opts out of this option, in order to market to those clients on the merchant’s behalf. MyTime will market to Merchant’s clients only on Merchant’s behalf. However, if a Merchant’s client is not currently a MyTime user, but creates a MyTime user account in order to use MyTime’s services, including booking an appointment or setting appointment reminders, the client becomes a shared customer of both MyTime and the Merchant, and MyTime may contact the customer without restriction about services offered by MyTime or other MyTime merchants.
(iii) Opt-In Features. Certain MyTime features may require importing customer data including customer names, appointment history, past services purchased, historical revenue and customer contact information such as email and phone number. These features are optional and MyTime will not access this data until Merchant grants MyTime explicit permission to do so.
(h) MyTime may terminate the MyTime Scheduler™ at any time.
4. MyTime Transaction Services, Payment Services, and Point of Sale
(a) MyTime offers Point of Sale (“MyTime POS”) software to enable accepting and processing credit card, debit card and other types of card payments (collectively “cards”) from Merchant’s customers in exchange for products and services via internet-based (“Card Not Present”) and in-person (“Card Present”) transactions. Through the MyTime POS, Merchants can manage payments received for their goods and services and may create charges, offer discounts, calculate sales tax, and issue refunds to Consumers for Orders as outlined in this Agreement and subject to applicable laws. A MyTime account is required to use all Payment and Transaction Services. At Merchant’s election, MyTime can facilitate credit and debit card processing services via a third-party Payment Processor that is integrated into and supported by the MyTime POS. Other identifying information as outlined in this Agreement may be needed to use MyTime’s Payment and Transaction Services.
(b) MyTime’s Point of Sale software provides an interface to use features of our Payment and Transaction Services managed by MyTime and our Payment Processor. Our POS software also helps you manage recurring and subscription billing charges for your products and services.
(c) This feature is separate and distinct from other MyTime products and other services that are provided by MyTime.
(d) We reserve the right to require you to install or update any and all software updates to continue using the Transaction Service. Devices modified contrary to the manufacturer’s software or hardware guidelines, including but not limited to those with disabled hardware or software controls—sometimes referred to as “jail broken”—are not compatible mobile devices. You acknowledge that using a modified device to use MyTime’s Site and services is expressly prohibited, constitutes a violation of the terms of this Agreement, and is grounds for termination of your MyTime account.
(e) It is your responsibility to obtain your customers’ consent to be billed on a recurring basis in compliance with applicable legal requirements and Visa Europe Ltd, Visa U.S.A., Inc., (“Visa”) and MasterCard International Incorporated (“MasterCard”), Discover, American Express or other applicable card network (collectively, the “Payment Networks”) payment rules.
(f) MyTime does not warrant that its software or services will be compatible with your mobile device or third party carrier.
(g) If you choose to purchase POS Equipment from MyTime, you agree to pay the fees assessed by MyTime to you for providing the POS Equipment. These fees will be disclosed on MyTime’s Site.
(h) Our Payment Processor provides merchant services such as: settling card-based transactions, issuing refunds, reversals, adjustments, and Chargebacks; as well as electronic disbursement to your Reserve Account and Bank Account via Direct Deposit, withholding deposits and fees, verification and underwriting, and reporting. MyTime, as outlined in this Agreement, has the authority to directly manage your Stripe Connect account and activity with our Payment Processor to provide Transaction Services in accordance with our Payment Processor’s Terms. Neither MyTime nor Stripe is a bank or a money services business (“MSB”) nor does either party offer banking or MSB services as defined by the United States Department of Treasury. In addition, we do not assume any liability for the products or services purchased using our Transaction Service.
(j) At any point, MyTime, our Payment Processor, or the Payment Networks may determine that you are incurring excessive Chargebacks. Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in additional controls and restrictions to your use of the Transaction Services, including without limitation, (i) changes to the terms of your Reserve Account, (ii) increases to your applicable Transaction Fees, (iii) delays in your Payout Schedule, or (iv) possible suspension or termination of your account and services provided by MyTime. The Networks may also place additional controls or restrictions as part of their own monitoring programs for merchants with excessive Chargebacks.
4.1 Authorization for Handling of Funds
(a) By accepting this Agreement and using MyTime POS, or Payment or Transaction Services, you authorize MyTime to receive, deposit, hold, and disburse funds on your behalf for all credit card transactions processed via MyTime and the Transaction Services, including transactions for appointment bookings, products, gift cards, memberships, and packages. You also authorize MyTime to hold funds in a Reserve Account pending disbursement to you in accordance with the terms of this Agreement. Furthermore, you authorize MyTime to debit, withdraw, and reverse disbursements as defined below.
(b) You grant us a security interest in and lien on any and all funds held in any Reserve Account or other Managed Account, and also authorize us to make any withdrawals or debits from your Account, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your MyTime Account. You agree you are not entitled to any interest or other compensation associated with the funds held in the Reserve Account pending settlement to your designated Bank Account, that you have no right to direct that Reserve Account, and that you may not assign any interest or grant any security interest or lien on the funds in the Reserve Account other than to MyTime as outlined directly above.
(c) You agree to submit any and all refunds and adjustments for returns of your products and services through MyTime’s Transaction Services including Marketplace and MyTime POS to the Consumer’s card in accordance with the terms of this Agreement and Payment Network Rules. Payment Network Rules require that you will: (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose your return or cancellation policy to customers at the time of purchase, (iii) not give cash refunds to a customer in connection with a card sale, unless required by law, and (iv) not accept cash or any other item of value for preparing a card transaction refund.
(d) Full refunds must be for the exact dollar amount of the original transaction including tax, handling charges, and other charges. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customer for postage costs incurred for product returns. Refunds processed through MyTime POS or other Transaction Services must be submitted within sixty (60) days of the original transaction and in all cases, within three (3) days of approving the Consumer’s refund.
(e) MyTime reserves the right to disapprove and cancel any refund request submitted for processing through the Transaction Services if your Reserve Account balance is zero or negative, if you otherwise have any outstanding balance owed to MyTime, for any reason outlined under Section 4.1 of this Agreement, or at MyTime’s reasonable judgement to reduce security or fraud risks and other concerns.
4.2 Merchant’s Liability for Refunds, Chargebacks, and Other Reversals
(a) Merchant authorizes MyTime to withhold payments or debit Merchant’s Reserve Account, bank account on file, or any other payment instrument for the full amount of any reversed transaction, including without limitation transactions that are (i) refunded by you or MyTime, (ii) disputed by a Consumer directly with MyTime, or charged-back (a “Chargeback”), (iii) reversed for any reason by our Payment Processor, (vi) not authorized or we have any reason to believe are not authorized, (v) allegedly unlawful, suspicious, or in violation of the terms of this Agreement; (vi) adjusted to correct mistakes or errors. MyTime may withhold any balances owed to you to cover our attorney fees, court costs, or collection costs associated with your account.
(b) Merchant assumes all liability for Chargebacks and any applicable fees charged to MyTime for Chargebacks.
(c) You acknowledge that you are also responsible for any penalties or fines imposed on us or directly on you by any Payment Network or financial institution as a result of your activities.
(d) In the event a Chargeback is successfully contested and is returned to MyTime, MyTime will credit Merchant’s account with the full returned amount less any applicable Commissions or Transaction Fees as defined in this agreement, and a non-refundable $35.00 processing fee.
(e) Merchant agrees to cover all attorney’s fees, court costs, and collection costs (including those imposed by third-party debt collectors) associated with any MyTime collections efforts in the event Merchant refuses or is unable to pay any balance owed to MyTime (including Chargebacks, refunds, or other withdrawals as outlined in this agreement). Merchant acknowledges and agrees that MyTime may employ independent third-party debt collectors or law firms assist with the collection of all balances owed.
(f) In the event Merchant accrues any balance owed to MyTime and our Payment Processor, all debts to MyTime shall take priority.
4.3 Contesting Chargebacks
(a) Merchant agrees to assist MyTime when requested to investigate any transactions processed through, or related to, their account.
(b) Merchant agrees to produce records that assist MyTime in contesting Chargebacks, including email correspondence, proof of service, testimony, or other records as needed. Records must be received prior to established response deadlines, typically within 15 days after the Chargeback is issued. Merchant’s failure to provide documentation in a timely manner may result in an irreversible Chargeback.
(a) If MyTime needs to investigate or resolve any pending Consumer dispute filed with us related to your MyTime account, or if MyTime has reason to expect a Chargeback or payment dispute with a customer of the Merchant resulting from a transaction or transactions under your account, MyTime reserves the right to temporarily withhold funds from your Reserve Account or other deposits (including PayPal or check Payment Services) until MyTime reasonably believes, at our sole discretion, that the risk of receiving a chargeback or dispute has passed.
(b) All transactions, deposits, refunds, and other Merchant activity are subject to review for risk and compliance purposes and deposit to Merchant’s bank account may be delayed or postponed if necessary.
(c) Should MyTime need to conduct an investigation or resolve any pending dispute related to your Account, MyTime may defer payout or restrict access to Merchant’s funds for the entire time it takes MyTime to do so. MyTime may also defer payout or restrict access to Merchant’s funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
4.5. Registering to Receive Payouts and Activating MyTime POS
(a) In order to use MyTime POS and/or Payment Services including via Direct Deposit, PayPal, or check, MyTime may request identifying information as needed to administer payouts, verify your identity, and comply with applicable regulations (such as Know Your Customer laws), or in accordance with our Payment Processor and Payment Network’s policies.
(b) You may choose to register as an individual (sole proprietor) or as a company or other business organization. If you register as a company or business, you must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business and have the authority to bind the business to this Agreement. In order to sign up a business to use the Transaction Service, you must agree to this Agreement on behalf of the business. If you have so agreed, the term “you” will mean you, the natural person, as well as the business you represent. You understand that by registering for an Account using Direct Deposit as your disbursement method and/or activating POS Transaction Services, you are also registering for a Stripe Connect Account, and that you are simultaneously providing your information to MyTime for the purpose of opening an Account, and to Stripe for the purpose of establishing your Stripe Connect Account.
(c) As part of your registration, you must provide the legal name under which you do business (which may be the business’s legal name or a “doing business as” name).
(d) MyTime requires that you provide an accurate Employer Identification Number (“EIN”) or Tax ID, and/or social security number (“SSN”), date of birth, and your business’ Bank Account number and routing number. MyTime may also require the email address you registered your PayPal address with, and a valid mailing address for sending check payments. YOUR EIN, TAX ID, OR SSN MUST BE THE NUMBER ASSOCIATED WITH YOUR REGISTERED BUSINESS AND BE THE SAME NUMBER ON FILE WITH YOUR BUSINESS BANK ACCOUNT. The provided SSN and date of birth must be the same as the registered business owner or Bank Account holder. MyTime is not responsible for delays in payouts, or payouts sent to the wrong account, resulting from incorrect information provided during registration or activation. MyTime reserves the right to suspend or terminate your account if you have provided inaccurate, untrue, incomplete information, or if you refuse to provide their Business Information.
(e) We may also ask for additional information to help verify your identity and assess your transaction and business risk including business invoices, a driver’s license or other government-issued identification, or a business license. We may ask you for financial statements. We may request your permission to do a physical inspection at your place of business and to examine books and records that pertain to your compliance with this Agreement. Your failure to comply with any of these requests within five days may result in suspension or termination of your account or access to MyTime POS, Transaction and Payment Services, or delays in (or holds on) payouts. You authorize us to retrieve additional information about you from third parties and other identification services.
(f) By accepting this Agreement, you authorize MyTime to retrieve information about you through third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your name, address history, credit history, and other data about you. We may periodically update this information to determine whether you continue to meet the eligibility requirements for an Account.
(g) You agree that MyTime is permitted to contact and share information about you and your account with our Payment Processor. This includes sharing information about your transactions for regulatory or compliance purposes, use in connection with the management and maintenance of our Payment and Transaction Services, to help our Payment Processor create and update their customer records about you and to assist them in better serving you, and to conduct MyTime’s and our Payment Processor’s risk management process.
(h) For a full description of Stripe’s Verification and Underwriting process, please see the Stripe Terms at https://stripe.com/us/terms.
(i) You agree to notify us immediately of any changes to your trade name, bank account, other changes in personal or business information, or the manner in which you accept payment. Failure to notify us prior to these changes taking effect, and while still using the Transaction or Payment Services, may lead to service interruptions or other complications. MyTime takes no responsibility for any disputes, conflicts, interruptions, or delays arising from such changes.
(a) Merchants may elect to receive payouts via Direct Deposit. In this case, we will pay out funds to your designated Reserve Account and Bank Account in the amount of the transaction charged less our Transaction Fee and any applicable MyTime Commission, or other withholding as described above. The payouts will be made to the Bank Account you provide in your Direct Deposit and/or MyTime POS registration. The actual timing of the transfers to your Bank Account of the settling funds will be subject to the Payout Schedule as defined below.
(b) Payout Schedule. Payout schedule refers to the time it takes for us to initiate a deposit to your Bank Account for funds due to you from the Transaction Services. For settled transactions due to you, MyTime will initiate transfer of funds (less any applicable Transaction Fee, MyTime Commission, Chargebacks, and other funds owed to us for any reason) in accordance with the Payout Schedule. MyTime usually initiates Direct Deposit payouts within 36 hours of settlement, and funds will be initially transferred to your Reserve Account until credited to your Bank Account. The funds should normally be credited to your Bank Account within 1-2 days of us initiating the payout. MyTime is not responsible for any action taken by the institution holding your Bank Account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you in your Bank Account, or for any delays imposed by your bank or our Payment Processor. MyTime and our Payment Processor reserves the right to change the Payout Schedule from time to time, or suspend payouts to your Bank Account as outlined in Section 4.1.
(c) Some merchants may be eligible to receive payouts via check or PayPal. In this case, MyTime will remit payment within seven (7) business days of the settlement of a transaction related to your account. While MyTime may submit a payout via PayPal or via a check mailed to the address on file, we take no responsibility for delays or other issues arising from providing an incorrect PayPal account email address, lost or delayed mail, or for any holds placed or fees assessed by your financial institutions on the payouts. MyTime may at its sole discretion require you to accept Direct Deposit payouts to increase security, compliance, reduce risk, or for other reasons. As defined in Section 4.1, MyTime may subject any and all Payment Services and payout methods to applicable withholding.
(d) MyTime will assess fees all check and PayPal payout services in the amounts of a $1.25 processing fee for every check payout sent, and a $0.25 fee for all PayPal payouts sent. MyTime reserves the right to assess fees on other payout methods, and will provide notice of any new fees or changes in fee structures.
(e) Funds held in your Reserve Account are amounts of money set aside to cover Chargebacks, refunds, or other payment obligations under this agreement. We, in our discretion, will set the terms of your Reserve Account and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for your transaction is held for a period of time or that additional amounts are held in the Reserve Account. We, in our discretion, may elect to change the terms of the Reserve Account at any time for any reason based on your payment processing history or as requested by our Payment Processor.
(f) MyTime reserves the right to impose limits on the amount or frequency of refunds issued by any Merchant at any time. MyTime may require verification that a Merchant has sufficient funds to cover any refund issued.
4.7 Transaction History and Reporting
(a) Taxes and Reporting. It is your responsibility to determine what, if any, taxes apply to your Orders or any payments processed through MyTime or other methods (“Taxes”). While MyTime may provide reporting and other tools in an effort to assist you calculate Taxes, MyTime makes no guarantees as to the accuracy or effectiveness of these tools or your use of them. It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that MyTime and our Payment Processor may make certain reports to tax authorities regarding transactions processed through MyTime’s Transaction or Payment Services and our Payment Processor.
(b) Issuing Form 1099-K. MyTime will issue a form 1099-K to the IRS as required by law for any Merchant that receives both $20,000.00 or more in gross transaction volume AND 200 or more unique transactions in a calendar year. Merchants are entitled to a copy of their 1099-K to be available online at our website, or via email or mail at MyTime’s discretion. Forms and notices such as the 1099-K shall be considered to be received by you within 24 hours of the time it is posted to our website, emailed, or mailed to you unless we are informed that the notice was not received.
(c) Transaction Records. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your Account, your transaction history and your use of the Transaction Services. MyTime may provide dashboards, reports, and breakdowns of your transactions and payouts through the site, and may maintain records for the previous 18 months, subject to change without notice.
(d) Reconciliations and Discrepancies. You agree to notify us of any discrepancies arising from any reconciliations or audits. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will remit funds through applicable Payment Services within your regular Payout Schedule. Your failure to notify us of an error or discrepancy within sixty (60) days of when it first appears in your MyTime account (e.g., in any dashboards or reporting provided to you) will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
(e) Transaction Errors. If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your account as appropriate. MyTime may only correct transactions that you process incorrectly if and when you notify us of such an error, unless we are otherwise made aware of it. Your failure to notify us of any error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
4.8 Termination or Suspension
(a) Should you discontinue use of MyTime POS or otherwise suspend or cancel your MyTime account, we will immediately discontinue your access to the Transaction Services. You agree to complete all pending transactions or outstanding appointments (or notify customers of cancellation) and stop accepting new transactions through MyTime POS and/or Marketplace, as applicable. Any funds due to you will be paid out to you subject to the terms of your payout schedule and any applicable withholding.
(b) Termination does not relieve you of your obligations as defined in this Agreement and we may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Chargebacks, Fees, Refunds, reversals, or Investigations.
(c) Discontinuing to use MyTime Transaction Services or POS will not necessarily terminate your MyTime Merchant Agreement, unless MyTime informs you otherwise.
(d) Failure to pay any subscription fees, including Scheduler Fees, or accruing any balance owed to MyTime for Transaction Services (including as outlined in Section 4.1) may result in the suspension of your account. MyTime may disallow your access to any services or software provided at our discretion until any balances owed or subscription fees are paid in full.
4.9 Data Security and Privacy
(a) You are fully responsible for the security of data on your website or otherwise in your possession. You agree to comply with all applicable state and federal laws and rules in connection with your collection, security and dissemination of any personal, financial, credit card, or transaction information (defined as “Data”) on your website. MyTime expressly rejects all responsibility and liability for your own Data.
(b) If we believe that a security breach or compromise of data has occurred, MyTime may require you to have a third party auditor that is approved by MyTime conduct a security audit of your systems and facilities and issue a report to be provided to MyTime, our Payment Processor, financial banks, and/or the Payment Networks.
(c) You represent to us that you are in compliance with all applicable privacy laws, you have obtained all necessary rights and consents under applicable law to disclose to us, or allow MyTime or Stripe to collect, use, retain and disclose any Consumer or cardholder data that you provide to us or authorize us to collect, including email addresses, phone numbers, or information that we may collect directly from your end users via cookies or other means, and that we will not be in breach of any such laws by collecting, receiving, using and disclosing such information in connection with the Transaction Services or other MyTime services. As between the parties to this Agreement, you are solely responsible for disclosing to your customers that we assist in managing card transactions for you and obtaining data from such customers. If you receive information about others, including Consumers and cardholders, through the use MyTime’s Transaction Services, you must keep such information confidential and only use it in connection with MyTime’s platform.
(d) You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive the express consent of the user to do so. You may not disclose card numbers to any third party, other than in connection with processing a card transaction requested by the buyer customer.
(a) You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use MyTime, including POS and/or Direct Deposit payouts, and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell goods and services; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by you through the Transaction Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Transaction Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of any aspect of the MyTime platform.
(b) You represent and warrant to us that your business is not Prohibited Business and does not provide services characteristic of a Prohibited Business.
5. Payment and Fees for MyTime Scheduler™
For Merchants that use the MyTime Scheduler™, The MyTime Scheduler™ Fee is billed to the Merchant’s credit card on file at the beginning of each Flat Fee billing cycle to cover the fee for the MyTime Scheduler™ for the upcoming month. Once the MyTime Scheduler™ Fee billing cycle has begun, Merchant may not deactivate MyTime Scheduler™ until the current billing cycle is complete, although requests for deactivation may be made at any time and will automatically take effect at the next billing cycle. Merchant may choose a monthly, annual, or 2-year billing cycle, which will begin immediately upon activating the MyTime Scheduler™. For Merchants with multiple locations on the Site, a separate MyTime Scheduler™ Fee will be assessed for each separate merchant location. The pricing for the MyTime Scheduler™ Fee will be as set forth within the Merchant’s online account settings.
Merchant shall grant MyTime a non-exclusive, worldwide license to use, copy, distribute, transmit, and display any information MyTime collects through the MyTime Scheduler™ or from Merchant’s publicly available website and to Merchant’s name, logo and any trademarks (“Merchant Marks”) and any photographs, graphics, artwork, text and other content provided or specified by Merchant (“Content”) in connection with the marketing, promotion, sale or distribution of Vouchers, in any and all media or formats in which such Services are marketed, promoted, transmitted, sold, or distributed, including on the Website. Merchants may request that MyTime remove or stop using any information obtained from Merchant website by emailing support [at] mytime.com.
8. Gift Cards
Merchants may sell gift cards to Consumers through the Site, including via MyTime POS. MyTime will forward on payment to Merchant less applicable Transaction Fees as outlined under Section 4.
9. Compliance with Laws
At all times, Merchant shall comply with:
(a) All Laws. All local, state or federal laws, statutes, rules, regulations, or orders, including any Laws governing the use, sale, and/or distribution of alcohol, and any Laws governing gift cards, coupons, and/or gift certificates; and,
(b) Unfair Competition Laws. All laws that prohibit false, deceptive or unfair advertising or disparagement; and
(c) Intellectual Property Laws. All laws regarding the copyright, trademark, or other intellectual property rights or rights of privacy or publicity of any third party; and,
(d) Gift Card, Gift Certificate and Abandoned Property Laws. All applicable laws, including the Credit Card Act of 2009 and any state or local laws governing the imposition of expiration dates, service charges, dormancy fees or other terms and conditions of the Order. Merchant shall allow the Consumer to use the Order for Services with Merchant for the amount paid by Consumer for the Order (i.e. the cash or redemption value of the Order) for the applicable term specified under applicable state or federal laws and shall allow redemption refund of the amount paid for the Order as required by applicable state or federal laws. To the extent required by applicable escheat or abandoned or unclaimed property laws, Merchant shall be solely responsible for and agrees to report and pay over to the applicable local, state or federal governmental agency any unredeemed cash value of any Order issued under this Agreement. Merchant is responsible for keeping track of the cash amount paid by the Consumer for the Order and any unredeemed balance of that cash amount to ensure compliance with this Agreement. Furthermore, Merchant agrees that so long as an appointment is made for Services before the expiration date of the Order, the Order will be fully honored without restriction even though the Services may be completed after the expiration date.
10. Merchant Calendar Access
10.1 By submitting information, data, passwords, usernames, PINs, other log-in information, materials and other content to MyTime, you are licensing that content to MyTime solely for the purpose of providing the MyTime Service. MyTime may use and store the content, but only to provide the MyTime Service to you. By submitting this content to MyTime, you represent that you are entitled to submit it to MyTime for use for this purpose, without any obligation by MyTime to pay any fees or other limitations. By using the MyTime Service, you expressly authorize MyTime to access your Account Information maintained by identified third parties, on your behalf as your agent. When you use the “Sync Calendar” feature of MyTime, you will be directly connected to the website for the third party you have identified. MyTime will submit information including usernames and passwords that you provide to log you into the site. You hereby authorize and permit MyTime to use and store information submitted by you to the MyTime Service (such as account passwords and user names) to accomplish the foregoing and to configure the MyTime Service so that it is compatible with the third party sites for which you submit your information. For purposes of this Agreement and solely to provide the Sync Calendar feature to you as part of the MyTime Service, you grant MyTime a limited power of attorney, and appoint MyTime as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN MYTIME IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, MYTIME IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You understand and agree that the MyTime Service is not sponsored or endorsed by any third parties accessible through the MyTime Service.
When Merchant agrees to allow MyTime to access its calendar, Merchant will need to provide MyTime with its login credentials. MyTime will use reasonable efforts to keep the login credentials encrypted and secure. Merchant will not hold MyTime liable for any breaches of security.
10.3 MyTime Calendar Software
MyTime may offer certain proprietary software, and related content, documentation and information (collectively, the “Software”) for Merchant’s use. The Software will be able to access Merchant’s calendaring program (e.g., Microsoft Outlook and Apple iCal) (the “Calendaring Program”), as well as make revisions, updates, and sync with Merchant’s Merchant Account. Downloading and installing the Software is optional. By using the Software, Merchant agrees to the terms of the Software License Agreement (the “License Agreement”) accessible at http://www.mytime.com/terms/license and the terms governing the Software in MyTime’s Terms of Service.
11. Representation and Warranties
11.1 Disclaimer of Warranties. THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE WEBSITE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MYTIME OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, MYTIME, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; THAT THE WEBSITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE WEBSITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE WEBSITE.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
MYTIME DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE MYTIME WEBSITE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND MYTIME WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
The Merchant represents and warrants to MyTime as follows:
11.2 Authority. The Merchant has full corporate power and authority to execute and deliver this Agreement and to perform its obligations. The execution, delivery and performance of this Agreement have been duly authorized, or will have been duly authorized, by all necessary corporate action on the part of the Merchant, and this Agreement has been duly executed and delivered by the Merchant.
11.3 Taxes. Merchant is registered for sales and use tax collection purposes in all states in which Merchant Services will be provided pursuant to the terms and presentation of the Voucher.
11.4 Intellectual Property. Merchant owns all rights, titles and interests in the Merchant Marks and Content and has the right to grant the licenses in the Merchant Marks and Content stated in this Agreement.
11.5 Termination. In the event of Merchant’s breach of any of the representations and warranties set forth in Section 4, MyTime may, without prejudice to any other remedies or rights which may be available to MyTime, immediately terminate or suspend any Voucher or Merchant’s Account.
12. Intellectual Property
MyTime owns all rights, titles, and interests in the MyTime Website, all content, material, and trademarks presented on the Site or transferred thereby (excluding any licensed Merchant Marks), and any software, technology or tools used by MyTime to promote, market, sell, generate, or distribute the Vouchers and all intellectual property rights related thereto (collectively the “MyTime IP”). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights and Merchant may not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, adapt, edit, modify or timeshare the MyTime IP or any portion thereof, or use such MyTime IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. Merchant may not prepare any derivative work based on the MyTime IP. Merchant may not translate, reverse engineer, decompile or disassemble the MyTime IP.
13. Aggregated Merchant Data
MyTime may collect data from a Merchant’s account and may use, sell or report such data for any purpose or use including for promotional purposes, revenue generation and product development, so long as such data has been aggregated with the data of no fewer than four (4) other Merchants.
14. Staff Member Accounts
Staff Members of a Merchant may create individual MyTime Accounts that are affiliated with the Merchant’s business. These individual staff member accounts are subject to all of the terms of this Agreement. Additionally, an agency relationship will exist between the staff member and the Merchant and any actions taken using either account or by either staff member or Merchant will bind the Merchant.
Merchant agrees to defend, indemnify and hold MyTime, its affiliated and related entities, and any of their officers, directors, agents and staff members, harmless from and against any claims, actions, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to attorney’s fees and costs) arising out of or relating to any of the following:
(a) Any breach or alleged breach by Merchant of this Agreement or the representations and warranties stated in this Agreement;
(b) Any claim for Taxes arising from use of the Application, including but not limited to the sale and subsequent redemption of a Voucher;
(c) Any claim by any local, state or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest (“Abandoned Property Claims”);
(d) Any claim arising out of a violation of law and/or regulation governing the use, sale, and/or distribution of alcohol;
(e) Any claim arising out of or relating to the sale, performance, or delivery of Merchant Services, including, but not limited to, any claims for changes to or determination of the value of a Voucher or Merchant Services, false advertising, product defects, personal injury, death, or property damages; or
(f) Merchant’s failure to comply with any applicable Laws including, but not limited to, the Telephone Consumer Protection Act.
(g) Without limiting the foregoing, Merchant shall pay any monies owed to any party, as well as all attorney’s fees, related to any action against, or determinations against, MyTime related to any action to pursue MyTime for Taxes or Abandoned Property Claims.
16. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MYTIME, ITS AFFILIATES, AGENTS, DIRECTORS, STAFF MEMBERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS WEBSITE. UNDER NO CIRCUMSTANCES WILL MYTIME BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE WEBSITE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MYTIME ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR WEBSITE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE WEBSITE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL MYTIME, ITS AFFILIATES, AGENTS, DIRECTORS, STAFF MEMBERS, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO MYTIME HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MYTIME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from facilities in the United States. Company makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including, but not limited to, export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
17. General Provisions
17.1 Assignment and Delegation. Merchant may not assign or delegate its rights or obligations under this Agreement or any rights and licenses granted hereunder, whether by operation of law or otherwise, without MyTime’s prior written consent, but MyTime may assign the foregoing without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
17.3 Arbitration. Any claim, dispute, or controversy arising out of, relating to, or connected in any way with this Agreement, the Merchant Platform, the Website or the purchase or sale of any Voucher(s), will be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”). You may only resolve disputes with MyTime on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are prohibited.
(a) Arbitration must be held in San Francisco, California or at such other location as may be mutually agreed upon by Merchant and MyTime.
(b) The arbitrator must apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and must honor claims of privilege recognized at law.
(c) The arbitrator has no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only Merchant’s and/or MyTime’s individual claims, and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
(d) In the event that Merchant is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, MyTime will pay as much of Merchant’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (e) with the exception of subpart (c) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (c) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither Merchant nor MyTime shall be entitled to arbitrate their dispute.
17.4 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.
17.5 Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the Parties. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other Party in any way.
BY REGISTERING FOR A MERCHANT ACCOUNT OR BY USING OR ACCESSING THE MERCHANT PLATFORM, MERCHANT UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT MERCHANT WILL ABIDE BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR A MERCHANT ACCOUNT AND IMMEDIATELY STOP (A) ACCESSING THE MERCHANT PLATFORM AND (B) SUBMITTING MYTIME SERVICE OFFERINGS.