PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING THIS WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, PLEASE DO NOT ACCESS THIS SITE. THESE TERMS INCLUDE AN ARBITRATION CLAUSE AND A WAIVER OF YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE LAWSUIT.
These Terms and Conditions (“Agreement”) apply to this website and to all other websites owned or operated by Tyme Commerce, Inc. (“Tyme Commerce”) that are liked to this Agreement (such websites are collectively denoted the “Website”). This Agreement governs your access to and use of the Website, including any content, functionality, and services offered on or through the Website (“Services”), unless any such Services are governed by another legal agreement as expressly identified in connection with such Services, in which case the other agreement will govern those particular Services. “You” and “your” refer to you, as the person who accesses and uses the Website and Services and to any legal entity that you represent if you are visiting this Website within the scope of employment or other business relationship with such other entity. “Us,” “our,” and “we” means Tyme Commerce.
Tyme Commerce reserves the right to modify this Agreement at any time without notice. Any change to this Agreement will be effective upon posting of such updated Agreement on the Website. The most current version of the Agreement will be available to you by clicking the link at the bottom of the Website. By continuing to access or use the Services after the date of any change to this Agreement, you agree to be bound by such terms contained in the most recent version of this Agreement. Tyme Commerce reserves the right to modify or terminate the Services and/or Website, or to terminate your access to the Services and/or Website, in whole or in part, at any time.
Intellectual Property and Limitations on Use
All trademarks, service marks, trade names, trade dress and related intellectual property rights in the Services are proprietary to Tyme Commerce or our licensors or licensees. You may not use, reproduce or display any of the Tyme Commerce trademarks except upon Tyme Commerce’s prior written consent.
The Website and its entire contents, features, and functionality (including but not limited to all web pages, user interfaces, information, design, software, source code, text, displays, graphics, images, videos, and audio recordings, and the design, selection, and arrangement thereof) are owned, controlled, or licensed by Tyme Commerce, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Except as expressly provided in this Agreement, you may not copy, display, distribute, transmit, transfer, link to, reproduce, license, frame, alter, create derivative works of, reverse engineer, or republish all or any portion of the Website for any commercial or public purpose without Tyme Commerce’s prior written consent. You may, however, view information available on the Website for your informational purposes. You may download from the Website materials, except for software or source code, but only for your personal or internal business purposes only. You may download software or source code from the Website, but only such software or source code purposely made available to you by Tyme Commerce for downloading from the Website, subject to any applicable legal agreement. You acknowledge and agree that you do not acquire any ownership rights of any kind by downloading materials from the Website.
Your use of the Services, including the Website, imposes on you an obligation of appropriate use and conduct, which includes, but is not limited to, not causing an unreasonable or disproportionately large processing load on our Services or systems, not engaging in any conduct that restricts or inhibits use of the Services by others, and not introducing or transmitting any virus, worm, Trojan horse or other material that may harm or disrupt our Services or systems. Unauthorized use of the Services, misuse of passwords, or misuse of any information or material posted on this Website is strictly prohibited.
You may use the Website and Services only for lawful purposes and you agree not to use the Website and Services in any way that violates any applicable federal, state, local, or international law or regulation.
In addition, you agree not to do any of the following without prior express written permission of Tyme Commerce:
(1) access the Website with any manual or automated process for any purpose other than your personal use or for inclusion of the Website and its pages in a search index. Use of any automated system or software to extract data from the Website (“screen scraping”), for commercial or non-commercial purposes, is prohibited, and you agree not to do or facilitate any such screen scraping;
(2) violate the restrictions in any robot exclusion headers on the Website or bypass or circumvent other measures employed to prevent or limit access to the Website;
(3) deep-link to any portion of the Website for any purpose;
(4) use any feature of the Website for any purpose that is unlawful, harmful, or otherwise objectionable or inappropriate as determined by us;
(5) post or distribute any material on the Website that violates the rights of any third party or applicable law; or
(6) use the Website to collect or store personal data about others;
Claims of copyright infringement
If you believe in good faith that materials available on the Website infringe your copyright, you (or your agent) may send Tyme Commerce a notice requesting us to remove the material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the Digital Millennium Copyright Act permits you to send Tyme Commerce a counter-notice. Learn more at the U.S. Copyright Office site.
Links to Third Party Websites or Content
The Website may contain links to websites controlled or offered by third parties (non-affiliates of Tyme Commerce). Tyme Commerce hereby disclaims all liability for any other company’s website content, products, privacy policies, or security. In the event you choose to use the services available at a linked site, you agree to read and adhere to the policies and terms of use applicable to that site. In addition, any advice, opinions, services, products, or recommendations provided by the linked site providers are those of the providers and not of Tyme Commerce. Your participation in any linked site, including payment for and the delivery of goods or services, is based solely on the agreement, if any, between you and the linked site provider.
Registration information
You may choose to register at the Website to help us tailor the Website or Services for your personal or business purposes. In registering for the Website or Services, you agree to provide accurate, true, current, and complete information about you and your business as requested by the registration screens. As a convenience to you, a profile for you or your business may be created based on the registration information that you provide.
Privacy
Your use of the Website or Services is subject to the Tyme Commerce Privacy Policy. By accessing or using the Website or Services, you understand and agree that Tyme Commerce may collect and retain personal or other information about you or the device you use to access the Website or Services.
Minors
The Website is intended for individuals who are at least 13 years old. If you are under the age of 13 years old, please do not access this Website.
Feedback
You agree that any and all suggestions, comments, and feedback that you submit at or via the Website in connection with any Tyme Commerce products and services (“Feedback”) will be deemed to be non-confidential. Tyme Commerce will have no obligation to keep such Feedback confidential, except as otherwise specifically agreed or required by law. Tyme Commerce will shall be free to use or exploit in any way and for any purpose any Feedback without any restriction of any kind. Such Feedback may include ideas for new or improved products or services, concepts, know-how, techniques, etc.
Chat
At any time and in connection with any product or service that Tyme Commerce provides, Tyme Commerce may at its sole discretion make interactive online chat (“Chat”) service available to you. Tyme Commerce makes no warranty that the Chat service will be available at any particular time or be free of fault or error.
If you are under the age of 13 years old and are invited to use the Chat service, you must not use the Chat service and you must leave the Website.
The Chat service is provided as a convenience to facilitate your understanding of Tyme Commerce’s products, services, and online applications. Our Chat service agents will try to provide you with accurate and current information based on your question or need. Nothing we communicate in the Chat service will be considered a legal agreement, representation, or warranty as to our products, services, processes, decisions, or response times. Providing or participating in the Chat service does not constitute consent by you or us to use electronic records and signatures as a substitute for written documents.
You will not use the Chat service to send any abusive, defamatory, dishonest, or obscene message, and doing so may result in termination of the Chat service session.
Access Code for Online Applications
In connection with online applications for certain Tyme Commerce products or services available via the Website, Tyme Commerce may send you a unique access code or other token to help you complete, review, or track your applications. Such access code or token is intended to be only used by you and you must not share it with anyone.
Disclaimer and limitation of liability
THE SERVICES AND THE WEBSITE (INCLUDING ALL CONTENT, FUNCTIONALITY, AND MATERIALS), ARE OFFERED BY TYME COMMERCE ON AN “AS IS,” “AS AVAILABLE,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS, WITH NO WARRANTY OF ANY KIND—WHETHER EXPRESS, IMPLIED, OR STATUTORY—INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THIS DOES NOT AFFECT THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
YOU ACKNOWLEDGE THAT NEITHER TYME COMMERCE, NOR ANY OF ITS EMPLOYEES, AGENTS, THIRD PARTY PROVIDERS, AFFILIATES OR LICENSORS WARRANT THAT THE SERVICES OR THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR WEBSITE, OR AS TO THE TIMELINESS, SEQUENCE, ACCURACY, RELIABILITY, COMPLETENESS, OR CONTENT OF ANY INFORMATION, SERVICE, OR PRODUCT PROVIDED THROUGH THE SERVICES AND WEBSITE. TYME COMMERCE DOES NOT ENDORSE PRODUCTS OR SERVICES APPEARING ON LINKED SITES OR PURCHASED VIA LINKED SITES.
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL TYME COMMERCE BE RESPONSIBLE FOR ANY LOSS OF ANY KIND, INCLUDING LOSS ASSOCIATED WITH ANY COMPUTER VIRUSES WHICH MAY INFECT YOUR COMPUTER SYSTEM OR MOBILE DEVICE, PROPERTY DAMAGE, AND BODILY INJURY, WHETHER CAUSED BY ACCESS TO OR USE OF THE SERVICES OR THE WEBSITE. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL TYME COMMERCE AND ITS EMPLOYEES, AGENTS, THIRD PARTY PROVIDERS, AFFILIATES OR LICENSORS BE RESPONSIBLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, LOST PROFITS, ECONOMIC OR OTHER DAMAGES ARISING IN ANY WAY OUT OF THE INSTALLATION OR USE (OR INABILITY TO USE) OF THE SERVICES AND THE WEBSITE, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), INDEMNIFICATION, STRICT LIABILITY, OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE TOTAL AND AGGREGATE LIABILITY OF TYME COMMERCE AND OF ITS EMPLOYEES, AGENTS, THIRD PARTY PROVIDERS, AFFILIATES OR LICENSORS, TO YOU AND TO ALL PARTIES RELATED TO YOU, FOR ANY AND ALL CAUSES OF ACTION AND CLAIMS RELATING TO THIS AGREEMENT, THE WEBSITE AND/OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), INDEMNIFICATION, STRICT LIABILITY, OR OTHERWISE, WILL UNDER NO CIRCUMSTANCES EXCEED AT ANY POINT IN TIME THE LARGER OF THE FOLLOWING: (A) THE TOTAL NET PAYMENTS THAT TYME COMMERCE RECEIVED DIRECTLY FROM YOU OVER THE TWELVE MONTHS PRIOR TO THAT POINT IN TIME, OR (B) ONE US DOLLAR (US $1).
Indemnification
You agree to defend, indemnify, and hold harmless Tyme Commerce (and all of its direct and indirect subsidiaries) and each of their respective directors, officers, employees, agents, affiliates, successors, and assigns from and against all losses, liabilities, damages, claims and expenses, including attorneys’ fees, arising out of, relating to, or resulting from your violation of this Agreement or misuse of the Service or the Website, including such violation or misuses conducted by your employer, employees, affiliates and agents.
Enforceability and governing law
This Agreement constitute a contract between you and Tyme Commerce governed by the laws of the state of California (United States of America), with the exception of its conflicts of laws provisions. In the event that any of the terms or provisions of this Agreement is held to be unenforceable, the remaining terms and provisions will be unimpaired and the unenforceable term or provision will be replaced by such enforceable term or provision that comes closest to the intention underlying the unenforceable term or provision. This Agreement will be subject to any other agreements you have entered into with Tyme Commerce.
The Website is hosted in the United States. If you are accessing this Website from outside the United States, you may be subjecting yourself to United States law, which may differ from your local laws, including laws that govern personal data collection, use, and disclosure. In your use of this Website or Services, you may transfer certain personal information to the United States. You consent to that transfer and you consent to the application of United States law.
Arbitration and Waiver
You agree that by accepting this Agreement, you Tyme Commerce are each waiving the right to trial by jury and the ability to participate in a class action. ANY AND ALL DISPUTES THAT TYME COMMERCE OR YOU HAVE RELATING IN ANY WAY TO THE WEBSITE OR SERVICES, OR YOUR RELATIONSHIP WITH TYME COMMERCE (INCLUDING WITHOUT LIMITATION WITH RESPECT TO DATA, YOUR INTERACTION WITH TYME COMMERCE, TYME COMMERCE’S ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS (TEXT) MESSAGES THAT TYME COMMERCE SENDS TO YOU, OR THE USE OR DISCLOSURE OF ANY INFORMATION ABOUT YOU), THIS AGREEMENT AND THE RELATED PRIVACY POLICY (COLLECTIVELY, “CLAIMS”) WILL BE SUBMITTED TO CONFIDENTIAL ARBITRATION IN SAN FRANCISCO, CALIFORNIA, EXCEPT TO THE EXTENT THAT YOU HAVE, IN ANY WAY, VIOLATED OR THREATENED TO VIOLATE ANY COMPANY INTELLECTUAL PROPERTY RIGHT. CLAIMS INCLUDE CLAIMS BASED ON CONTRACT, TORT (INCLUDING INTENTIONAL TORT), FRAUD, AGENCY, YOUR OR TYME COMMERCE’S NEGLIGENCE, STATUTORY OR REGULATORY PROVISIONS, OR ANY OTHER SOURCE OF LAW.
If you intend to seek arbitration, you must first send to Tyme Commerce, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Tyme Commerce must be sent to legal@tymecommerce.com. The Notice shall describe the nature and basis of the claim or disputes and the specific relief sought. If you and Tyme Commerce cannot reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or we may commence arbitration. All arbitrations required by this Agreement will be conducted under the Commercial Arbitration rules of the American Arbitration Association. The arbitrator’s award is binding and may be entered in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration brought under, or with respect to, Claims is to be joined to an arbitration involving any other party subject to this Agreement whether through class arbitration proceedings or otherwise. Unless Tyme Commerce and you agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative, private attorney general or class proceeding.
TO THE EXTENT PERMITTED BY LAW, YOU WILL NOT AGREE TO ACT AS A REPRESENTATIVE OR A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT AGAINST TYME COMMERCE IN ANY COURT, OR IN ARBITRATION, WITH RESPECT TO ANY CLAIMS. THIS SECTION (ARBITRATION AND WAIVER) WILL SURVIVE THE TERMINATION OF THIS AGREEMENT AND OF THE RELATIONSHIP BETWEEN YOU AND TYME COMMERCE.
