TERMS OF SERVICE - April 19, 2016 (date of last revision)
myTribute, LLC. ("myTribute," "we," "us," "our") provides its services (described below) to you through its website located at mytribute.com (the "Site") and related services (collectively, such services, including any new features and applications, and the Site, the "Services"), subject to the following Terms of Service (as amended from time to time, the "Terms of Service"). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means, and unless otherwise stated, myTribute may communicate with you officially by any reasonable means now known or later developed. These currently include emails and notifications on the Site. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that (i) changes addressing new functions of the Services or changes made for legal reasons will be effective immediately, and (ii) changes or modifications to the provisions of these Terms of Service governing Dispute Resolution By Binding Arbitration shall be made as specified therein. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
ACCESS AND USE OF THE SERVICES
Services Description: The Services are offered as a platform (the "Platform") to users of the Services, which may include Memorial Users, Memorial Organizers and Donors (each defined herein) and other registered users of the Services (which may include users who simply "like" Campaigns or otherwise interact with the Site or Services). Among other features, the Services are designed to allow a user (a "Memorial Organizer") to post a fundraising campaign ("Campaign") to the Platform to accept monetary donations ("Donations") from users wishing to contribute funds to the Campaign ("Donors"). For purposes hereof, the term "Memorial Organizer" shall also be deemed to include any individual(s) designated as a beneficiary of a Campaign. Although there are no fees to set up a Campaign, a percentage of each Donation will be charged as fees for our Services and those of our third party payment processors.
Charitable Giving: Campaigns are not charities to which you can make tax-deductible charitable contributions. However, in addition to the Services described above, myTribute permits Donors to contribute directly to certain charitable organizations ("Charities") through the Platform. Any donation you make to a Charity through the Platform may be processed by an unaffiliated business partner for which a processing fee (in addition to our Services fee) is deducted. You understand and acknowledge that myTribute is not a charity, and myTribute does not solicit charitable donations for itself or for any third-party charitable institution. You, as a Memorial Organizer, represent and warrant that if residing in the United States, you are not a charity as defined in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). If you or your charity would like to register to be listed as a charitable organization on the Platform, please contact us and we can help facilitate that process. As used in this Agreement, the term "Campaign" does not refer to a Charity, and you acknowledge that contributions to Campaigns are not deductible for U.S. federal income tax purposes as charitable contributions.
The Services are a Platform; We are not a Broker, Financial Institution, Creditor or Charitable Institution: The Services are an administrative platform only. myTribute facilitates the Donation transaction between Memorial Organizers and Donors, but is not a party to any agreement between a Memorial Organizer and a Donor, or between any user and a Charity. myTribute is not a broker, agent, financial institution, creditor or insurer for any user. myTribute has no control over the conduct of, or any information provided by a Memorial Organizer or a Charity, and myTribute hereby disclaims all liability in this regard.
myTribute does not guarantee that a Campaign or a Charity will obtain a certain amount of Donations or any Donations at all. We do not endorse any Campaign, Memorial Organizer, or Charity, and we make no guarantee, explicit or implied, that any information provided through the Services by a user is accurate. We expressly disclaim any liability or responsibility for the success of any Campaign, or the outcome of any fundraising purpose. You, as a Donor, must make the final determination as to the value and appropriateness of contributing to any Campaign, Memorial Organizer, or Charity.
We do not and cannot verify the information that Memorial Organizers supply, nor do we guarantee that the Donations will be used in accordance with any fundraising purpose prescribed by a Memorial Organizer or Charity. We assume no responsibility to verify whether the Donations are used in accordance with any applicable laws, and such responsibility rests solely with the Memorial Organizer or Charity, as applicable. While we have no obligation to verify that the use of any funds raised is in accordance with applicable law and these Terms of Service, we take possible fraudulent activity and the misuse of funds raised very seriously. If you have reason to believe that a Memorial Organizer or Charity is not raising or using the funds for their stated purpose, please use the "Report" button on the Campaign or Charity to alert our team of this potential issue and we will investigate.
You, as a Memorial Organizer, represent, warrant, and covenant that (i) all information you provide in connection with a Campaign is accurate, complete, and not otherwise designed to mislead, defraud or deceive any user; and (ii) all Donations contributed to your Campaign will be used solely as described in the materials that you post; and (iii) you will comply with all relevant local, state, and federal laws applicable to you when you solicit funds, particularly but not limited to laws relating to your marketing and solicitation for your project. We reserve the right to provide information relating to your Campaign with donors and beneficiaries of your Campaign, and with law enforcement or to assist in any investigation.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify myTribute of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you sign out from your account at the end of each session when accessing the Services. myTribute will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Services: myTribute reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that myTribute will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
General Practices Regarding Use and Storage: You acknowledge that myTribute may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on myTribute's servers on your behalf. You agree that myTribute has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that myTribute reserves the right to terminate accounts or Campaigns that are inactive for an extended period of time, provided that myTribute will use its commercially reasonable efforts to provide a Memorial Organizer with reasonable notice before terminating an inactive Campaign having a positive balance of Donations. You further acknowledge that myTribute reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Services includes certain services that are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device and (ii) the ability to browse the Services and the Site from a mobile device (collectively, the "Mobile Services"). To the extent you access the Services through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding myTribute and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.
CONDITIONS OF USE
User Conduct: You are solely responsible for all Campaign descriptions, comments, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials ("content") that you upload, post, publish or display (hereinafter, "upload") or transmit or otherwise use via the Services. The following are examples of the kind of content and/or use that is illegal or prohibited by myTribute. However, this list is not exhaustive and myTribute reserves the right to investigate anyone by engaging public and private organizations, including, but not limited to collection agents, private investigators, and local, state, federal and international agencies, and take appropriate action against anyone who, in myTribute's sole discretion, violates any of the terms or spirit of these Terms of Service (or the principles described in our preamble hereto), including, without limitation, removing the offending content, suspending or terminating the account of such violators, stopping payments to any such Campaign, freezing donated funds when myTribute reasonably believes it to be required by applicable law, and reporting you to the law enforcement authorities or otherwise taking appropriate legal action. Without limiting the foregoing, you agree to not use the Services to:
establish or contribute to any Campaign with the implicit or express purpose relating to any of the following:
any activity that violates any law or governmental regulation;
A. content or campaigns that are fraudulent, misleading, inaccurate or dishonest;
One illegal drugs, narcotics, steroids, controlled substances or other products that present a risk to consumer safety or any related paraphernalia;
the promotion of hate, violence, harassment, discrimination or terrorism, or racial, ethnic, or gender intolerance of any kind;
activities with, in, or involving countries, regions, governments, persons, or entities (including but not limited to Specially Designated Nationals) that are subject to U.S. economic sanctions, unless authorized by the Office of Foreign Assets Control, U.S. Department of the Treasury;
pornography or other sexual content;
offensive, graphic, perverse or sensitive content;
the defense or support of anyone alleged to be involved in criminal activity;
offering monetary rewards, including gift cards;
collection of payments on behalf of merchants by payment processors or otherwise.
B. transmit or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; or (vi) in the sole judgment of myTribute, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose myTribute or its users to any harm or liability of any type; or
C. interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
D. harvest or collect email addresses or other contact information of other users from the Services by electronic or other means.
Donations: In order to contribute to a Campaign or to a Charity, a Donor will be required to provide myTribute information regarding its credit card or other payment instrument. You, as a Donor, represent and warrant to myTribute that such information is true and that you are authorized to use the payment instrument. You agree that a certain minimum Donation amount may apply, and that all Donation payments are final and cannot be refunded.
Fees: myTribute does not charge a Memorial Organizer any upfront fees for creating a memorial and initiating a Campaign. myTribute retains a flat percentage of each Donation contributed to a Campaign and all charitable contributions made to a Charity (collectively, "myTribute Fees"). An additional payment processing fee is also deducted from each Donation and is payable directly to our third party payment processors (the "Payment Processing Fee," and together with the myTribute Fees, the "Fees"). Donors acknowledge that by contributing a Donation to a Campaign, the Donor is agreeing to any and all applicable terms and conditions set forth by a third party payment processor, in addition to these Terms of Service. Payment Processing Fees and links to the applicable terms and conditions of our third party processors are listed below:
Fees are deducted directly from each Donation, and will not be reflected in the amount which a Memorial Organizer can withdraw from the Campaign or which is directed to a Charity. We reserve the right to change myTribute's Fee pricing from time to time. If myTribute does change its Fees, myTribute will provide notice of the change on the Site or in email to you, at myTribute's option, at least 30 days before the change is to take effect. Your continued use of the Services after the Fee change becomes effective constitutes your acceptance of the updated Fees.
Account Holds: From time to time, myTribute may place a hold on a Campaign account (a "Hold") restricting Withdrawals (defined herein) by a Memorial Organizer. Some of the reasons that we may place a Hold on a Campaign Account include the following: (i) if we have reason to believe (in our sole discretion) that information provided by a Memorial Organizer is false, misleading, or fraudulent, or that funds are being used in a prohibited manner, (ii) if the funds available should be provided directly to a person other than the Memorial Organizer (such as a legal beneficiary or person entitled by law to act on behalf of a Memorial Organizer), (iii) if we have reason to believe that a Campaign or Memorial Organizer has violated these Terms of Service, or (iv) if required in order to comply with a court order, subpoena, writ, injunction, or as otherwise required under applicable laws and regulations. If you have questions about a Hold we may have placed on your Campaign account, or need information about how to resolve the Hold, please contact us immediately.
Withdrawing Donations from a Campaign: You, as a Memorial Organizer (or, as applicable, the beneficiary designated by the Campaign), may withdraw Donations to your Campaign at any time up to the full amount of all Donations credited to your Campaign, less Fees and any previously withdrawn amounts ("Withdrawals") and subject to any Holds that we may place on your Campaign account. A Memorial Organizer may withdraw Donations by electronic wire transfer to your bank account. While myTribute strives to make Withdrawals available to you promptly, you acknowledge and agree Withdrawals may not be available to you for use immediately, and myTribute does not guarantee that Withdrawals will be available to you within any specific time frame, and myTribute expressly disclaims any and all responsibility for any delay or inability to access and use Withdrawals at any specified time, and any consequences arising from such delay or inability. You, as a Memorial Organizer, are responsible for ensuring that the information you provide to myTribute in order to process a Withdrawal, including your bank account information, is accurate and up to date.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls and economic sanctions laws. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export control and economic sanctions laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services, including as it concerns online conduct and acceptable content.
INTELLECTUAL PROPERTY RIGHTS
Services Content, Software and Trademarks: You acknowledge and agree that the Services may contain content or features ("Services Content") that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by myTribute, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Services Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Services. In connection with your use of the Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by myTribute from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Services Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Services or distributed in connection therewith are the property of myTribute, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by myTribute.
The myTribute name and logos are trademarks and service marks of myTribute (collectively the "myTribute Trademarks"). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to myTribute. Nothing in this Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of myTribute Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of myTribute Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will myTribute be liable in any way for any content or materials of any third parties (including users and Memorial Organizers), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that myTribute does not pre-screen content, but that myTribute and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, myTribute and its designees will have the right to remove any content that violates these Terms of Service or is deemed by myTribute, in its sole discretion, to be otherwise objectionable.
User Content Transmitted Through the Services: With respect to the content, photos, images, trademarks, logos, brands or other materials you upload or post through the Services or share with other users or recipients (collectively, "User Content"), you represent and warrant that you own all right, title and interest in and to, or otherwise have all necessary rights and consents to (and to allow others to) fully exploit, such User Content, including, without limitation, as it concerns all copyrights, trademark rights and rights of publicity or privacy related thereto. By uploading any User Content you hereby grant and will grant myTribute and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Services or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. Without limiting the foregoing, if any User Content contains your name, image or likeness, you hereby release and hold harmless myTribute and its contractors and employees, from (i) all claims for invasion of privacy, publicity or libel, (ii) any liability or other claims by virtue of any blurring, distortion, alteration, optical illusion, or other use or exploitation of your name, image or likeness, and (iii) any liability for claims made by you (or any successor to any claim you might bring) in connection with your User Content, name, image or likeness. You waive any right to inspect or approve any intermediary version(s) or finished version(s) of the results of the use of your User Content (including your name, image or likeness). Further, if any person (other than you) appears in your User Content, you represent and warrant that you have secured all necessary licenses, waivers and releases from such person(s) for the benefit of myTribute in a manner fully consistent with the licenses, waivers and releases set forth above. You further acknowledge that your participation in the Services and submission of User Content is voluntary and that you will not receive financial compensation of any type associated with the licenses, waivers, and releases set forth herein (or myTribute's exploitation thereof), and that the sole consideration for subject matter of this agreement is the opportunity to use the Services.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services ("Submissions"), provided by you to myTribute are non-confidential and myTribute will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that myTribute may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of myTribute, its users or the public.
Copyright Complaints: myTribute respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify myTribute of your infringement claim in accordance with the procedure set forth below.
myTribute will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to myTribute's Copyright Agent at help@myTribute.com (Subject line: "DMCA Takedown Request"). You may also contact us by mail or facsimile at:
myTribute Copyright Agent & Corporate Counsel
110 E. Ninth St Suite C600
Los Angeles, CA (0079)
To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Services, with enough detail that we may find it on the Services;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Southern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, myTribute will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, myTribute has adopted a policy of terminating, in appropriate circumstances and at myTribute's sole discretion, users who are deemed to be repeat infringers. myTribute may also at its sole discretion limit access to the Services and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
THIRD PARTY WEBSITES/SERVICES
The Services may provide or facilitate, or third parties may provide, links or other access to other sites, services and resources on the Internet. myTribute has no control over such sites, services and resources and myTribute is not responsible for and does not endorse such sites, services and resources. You further acknowledge and agree that myTribute will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site, service or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that myTribute is not liable for any loss or claim that you may have against any such third party.
SOCIAL NETWORKING SERVICES
In addition, myTribute is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, myTribute is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. myTribute enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
INDEMNITY AND RELEASE
You agree to release, indemnify and hold myTribute and its affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Services, any Donation or Campaign, any User Content, your connection to the Services, your violation of these Terms of Service or your violation of any rights of another.
If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MYTRIBUTE AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
MYTRIBUTE AND ITS AFFILIATES MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER MYTRIBUTE NOR ITS AFFILIATES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MYTRIBUTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL MYTRIBUTE'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID MYTRIBUTE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Most user concerns can be resolved quickly and to the user's satisfaction by emailing myTribute support. In the unlikely event that our user support team is unable to resolve a complaint you may have (or if myTribute has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award. Also, in any arbitration under this arbitration provision in which you seek less than $75,000 in damages, myTribute will pay reasonable attorneys' fees should you prevail and myTribute will not seek attorneys' fees from you. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of attorneys' fees will be governed by the AAA Rules (as defined below). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
myTribute and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
* claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
* claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
* claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
* claims that may arise after the termination of this Terms of Service.
References to "myTribute", "we", "you", and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission or the Attorney General of your state. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and myTribute are each waiving the right to a trial by jury or to participate in a class action. This Terms of Service evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Terms of Service.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to myTribute should be sent to 110 E. Ninth St Suite C600, Los Angeles, CA 90079, Attn: CEO and CFO, with a copy by email to help@myTribute.com ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If myTribute and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or myTribute may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by myTribute or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or myTribute is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Terms of Service, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Terms of Service. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless myTribute and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. myTribute will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND MYTRIBUTE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and myTribute agree otherwise in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
Notwithstanding any provision in these Terms of Service to the contrary, we agree that if myTribute makes any future change to this arbitration provision (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
You agree that myTribute, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if myTribute believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Services, may be referred to appropriate law enforcement authorities. myTribute may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that myTribute may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that myTribute will not be liable to you or any third party for any termination of your access to the Services.
You agree that you are solely responsible for your interactions with any other user in connection with the Services and myTribute will have no liability or responsibility with respect thereto. myTribute reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Services.
These Terms of Service constitute the entire agreement between you and myTribute and govern your use of the Services, superseding any prior agreements between you and myTribute with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and myTribute agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Los Angeles County, California. The failure of myTribute to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision.
If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
You may not assign these Terms of Service without the prior written consent of myTribute, but myTribute may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Services may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Services.
QUESTIONS? CONCERNS? SUGGESTIONS?
Please contact us at help@myTribute.com to report any violations of these Terms of Service or to ask any questions regarding this Terms of Service or the Services.