mycena
My·ce·na /maɪˈsiːnə/
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Terms of Service
These Terms of Service ("Terms") cover your use of and access to the sites, templates, products, applications, tools, services and features (collectively, the "Services") provided by Mycena (as defined below), including without limitation during free trials, on the website [email protected].
Please read this Agreement (as defined below) carefully! IT INCLUDES IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, AND COVERS AREAS SUCH AS AUTOMATIC SUBSCRIPTION RENEWALS, WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, THE RESOLUTION OF DISPUTES BY ARBITRATION AND A CLASS ACTION WAIVER. Please note if you are an EU Consumer (as defined below), some of these provisions may not apply to you and you may be entitled to specific rights under the mandatory laws of the country in which you reside.
References to “you”, “your” and similar terms are construed accordingly in this Agreement. If you don’t agree to all the terms in this Agreement, you may not use or access the Services.
If you are a resident of or have your principal place of business in the United States of America or any of its territories or possessions (the “US”), you are agreeing to this Agreement with Mycena, LLC and are a “US User”. Otherwise, you are agreeing to this Agreement with Mycena and are a “Non-US User”. References to “Mycena”, “us”, “we” and “our” mean Mycena, LLC if you are a US User or Mycena if you are a Non-US User. If your place of residence or principal place of business changes, the Mycena entity you contract with will be determined by your new residence or principal place of business, as specified above, from the date it changes. In addition, certain services may be provided to you by a Mycena group company other than Mycena, LLC or Mycena and may be subject to additional terms directly between you and such other Mycena group company; such additional terms will specify the name of the Mycena group company and you will contract with such Mycena group company solely with respect to such terms and such service.
1. Creating Accounts
1.1. Signing Up. To use many of the Services, you must first create an account (“Account”). Different parts of the Services may require different Accounts. You agree to provide us with accurate, complete and at all times up to date information for your Accounts. We may need to use this information to contact you.
1.2. Staying Safe. Please safeguard your Accounts and make sure others don't have access to your Accounts or passwords and other authentication credentials (collectively, "passwords"). You're solely responsible for any activity on your Accounts and for maintaining the confidentiality and security of your passwords. We’re not liable for any acts or omissions by you or anyone else in connection with your Accounts. You must immediately notify us if you know or have any reason to suspect that your Accounts or passwords have been stolen, misappropriated or otherwise compromised or in case of any actual or suspected unauthorized use of your Accounts.
1.3. Eighteen And Older. The Services are not intended for and may not be used by children under the age of 18. By using the Services, you represent that you're at least 18.
2. Your Content
2.1. Your User Content Stays Yours. Users of the Services (whether you or others) may provide us with content, including without limitation text, photos, images, music, audio, videos, fonts, logos, stickers, code, non-fungible tokens ("NFTs") and associated content, and any other materials (“User Content"). Your User Content stays yours, except for the limited rights that enable us to provide, improve, promote and protect the Services as described in this Agreement. User Content includes without limitation content you post to Your Sites or content you include in Your Videos. "Your Sites" means the sites (including scheduling pages, Bio Sites or Unfold stories hosted on the Services) you create or publish using the Services. “Your Videos” means the videos or similar materials you create using the Services and includes without limitation your Unfold stories.
2.2. Your License To Us. When you provide User Content via the Services, you grant Mycena (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with the Services), communicate, publish, publicly display, publicly perform and distribute User Content for the limited purposes of allowing us to provide, improve, promote and protect the Services. This Section does not affect any rights you may have under applicable data protection laws.
3. Your Responsibilities
3.1. Follow The Law. You represent and warrant that your use of the Services is in compliance with applicable laws, including without limitation applicable export or import controls and regulations and sanctions.
3.2. Do Not Share. The Services do not allow you to share Any Paywalled Mycena Content, including on social media and/or the open web.
4. Our Intellectual Property
4.1. Mycena Owns Mycena. The Services are, as between you and Mycena, owned by Mycena, and are protected by copyright, trade secret, trademark and other US and foreign laws. This Agreement doesn't grant you any right, title or interest in the Services, others’ User Content, our trademarks, logos or other brand features or intellectual property or trade secrets or others’ content in the Services. You agree not to change, modify, translate or otherwise create derivative works of the Services or others’ User Content.
4.2. We Can Use Your Feedback For Free. We welcome your feedback, ideas or suggestions (collectively, “Feedback”), but you agree that we may use your Feedback without any restriction or obligation to you, even after this Agreement is terminated. This Section does not limit or affect any rights you may have under applicable data protection laws.
5. Our Rights
5.1. Important Things We Can Do. We reserve these rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by applicable law): (a) we may change parts or all of the Services and their functionality; (b) we may suspend or discontinue parts or all of the Services; (c) we may terminate, suspend, restrict or disable your access to or use of parts or all of the Services; (d) we may terminate, suspend, restrict or disable access to your Accounts or parts or all of Your Sites or your User Content; and (e) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where you reside, we may revoke your right to use the Services in that jurisdiction).
6. Privacy
Privacy Policy. By using the Services, you confirm that you have read and understood our Privacy Policy. However, it is not a contractual document and does not form part of this Agreement and we may change it from time to time.
7. Copyright
We respect the intellectual property of others and ask that you do too. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported. We reserve the right to delete or disable content alleged to be infringing, and to terminate Accounts of repeat infringers without any refunds.
8. Paid Services And Fees
8.1. Fees. You can access certain portions of the Services by submitting a fee payment (such services, “Paid Services”). Paid Services will remain in effect until cancelled or terminated in accordance with this Agreement. We’ll tell you about fees for Paid Services before charging you. You may cancel Paid Services at any time via the Services. If you don't pay for Paid Services on time, we reserve the right to suspend or cancel your access to the Paid Services. Transaction fees and additional fees may also apply to certain portions of the Services, and we’ll tell you about those fees before charging you. Our fees will appear on an invoice that we provide via the Services, within your eCommerce Payment Processor account(s) and/or on a mobile app store invoice, unless otherwise indicated. Please note that different Paid Services have different fees and payment schedules, and canceling one Paid Service may not cancel all your Paid Services.
8.2. Taxes. All fees are inclusive of applicable national, provincial, state, local or other taxes (“Taxes”), unless explicitly stated. You're responsible for all applicable Taxes, and we'll charge Taxes in addition to the fees for the Services when required to do so. If you're exempt from Taxes, you must provide us with valid tax exemption documentation. We reserve the right to determine if the documentation provided is valid. Tax exemption will, provided we’re satisfied it’s valid and applicable, only apply from and after the date we receive such documentation. If Mycena has a legal obligation to pay or collect indirect Taxes (such as value-added tax or goods and services tax) on the sale to you under the laws of your country (where you are established, have a permanent address or usually reside), you shall be liable for payment of any such indirect Taxes. Where Mycena does not have a legal obligation to pay or collect indirect Taxes on a sale of Paid Services to you, you may be required to self-assess those Taxes under the applicable laws of your country (where you are established, have a permanent address or usually reside).
8.3. Automatic Subscription Renewals. To ensure uninterrupted service, we'll automatically bill you for certain Paid Services from the date you submit your initial payment and on each renewal period or amount afterwards until cancellation. Your renewal period will be equal in time or amount to the renewal period of your current subscription.
8.4. Refunds. While you may cancel any Paid Services at any time, you won't be issued a refund except in our sole discretion, or if legally required. Some of the Paid Services offer a free trial so you can try out your subscription. Please note applicable statutory rights of cancellation may not result in a refund, as we do not charge for this trial period.
8.5. Fee Changes. We may change our fees at any time. We’ll provide you with advance notice of these fee changes via the Services. New fees will not apply retroactively. If you don't agree with the fee changes, you have the right to reject the change by canceling the applicable Paid Service before your next payment date.
8.6. Chargebacks. If you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate your Account. If you have questions about a payment made to us, we encourage you to contact us before filing a Chargeback. We reserve our right to dispute any Chargeback.
8.7. Our Payment Processor. We use third party payment processors (each, a “Payment Processor”) to bill you through a payment account linked to your Account. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor, in addition to this Agreement. Except for payments made through mobile app stores, our current Payment Processor is Stripe, and your payments are processed by Stripe in accordance with Stripe’s terms of service and privacy policy. You agree to pay us, through the Payment Processor, all charges at the prices then in effect for any purchase in accordance with the applicable payment terms. You agree to make payment using the payment method you provide with your Account. We reserve the right to correct, or to instruct our Payment Processor to correct, any errors or mistakes, even if payment has already been requested or received.
9. Term And Termination
This Agreement will remain in effect until terminated by either you or us. You may terminate this Agreement at any time via the Services. We reserve the right to change, suspend or discontinue, or terminate, restrict or disable your use of or access to, parts or all of the Services or their functionality at any time at our sole discretion and without notice. We will endeavor to provide you reasonable notice upon suspending or terminating part or all of the Services. All sections of this Agreement that by their nature should survive termination shall survive termination, including without limitation the following sections in these Terms and any similar sections or provisions in the rest of this Agreement: Your Content, Our Intellectual Property, Warranty Disclaimers, Limitation of Liability, Indemnification, Dispute Resolution and Additional Terms.
10. Warranty Disclaimers
Disclaimers. To the fullest extent permitted by applicable law, Mycena makes no warranties, either express or implied, about the Services. The Services are provided “as is” and “as available”. Mycena also disclaims any warranties of merchantability, fitness for a particular purpose and non-infringement. No advice or information, whether oral or written, obtained by you from Mycena, shall create any warranty. Mycena makes no warranty or representation that the Services will: (a) be timely, uninterrupted or error-free; (b) meet your requirements or expectations; or (c) be free from viruses or other harmful components.
Exceptions. Under certain circumstances, some jurisdictions don't permit the disclaimers in Section 10.1, so they may not apply to you. However, the disclaimers apply to the maximum extent permitted by applicable law. You may have other statutory rights and nothing in this Agreement affects your statutory rights or rights under mandatory laws. The duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by applicable law.
11. Limitation Of Liability
Unless you are an EU Consumer, you acknowledge and agree that to the fullest extent permitted by applicable law, in no event will Mycena and its affiliates and its and their directors, officers, employees and agents be liable with respect to any claims arising out of or related to the Services or this Agreement for: (a) any indirect, special, incidental, exemplary, punitive or consequential damages; (b) any loss of profits, revenue, data, goodwill or other intangible losses; (c) any Losses (as defined below) related to your access to, use of or inability to access or use parts, some or all of your Account, Your Sites or parts or all of the Services, including without limitation interruption of use or cessation or modification of any aspect of the Services; (d) any Losses related to unavailability, degradation, loss, corruption, theft, unauthorized access or, unauthorized alteration of, any content, information or data, including without limitation User Content and Your eCommerce data; (e) any User Content or other conduct or content of any user or third party using the Services, including without limitation defamatory, offensive or unlawful conduct or content; or (f) any Third Party Services or third party sites accessed via the Services. If you are an EU Consumer, we shall, despite any other provision in this Agreement, provide the Services with reasonable care but will not be liable for any losses which were not a reasonably foreseeable consequence of our breach of this Agreement (except in relation to death or personal injury resulting from our negligence or fraud). These limitations apply to any theory of liability, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, whether or not Mycena has been informed of the possibility of such damage, and even if a remedy set forth in this Agreement is found to have failed its essential purpose. To the fullest extent permitted by applicable law (whether or not you are an EU Consumer), in no event shall the aggregate liability of Mycena for all claims arising out of or related to the Services and this Agreement exceed the greater of twenty dollars ($20) or the amounts paid by you to Mycena in the twelve (12) months immediately preceding the event that gave rise to such claim. If you are an EU Consumer, Mycena is liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors or other vicarious agents. An “EU Consumer” means a natural person acting for purposes outside their trade, business, craft or profession (as opposed to a User for business or commercial purposes) habitually residing in the European Economic Area.
12. Indemnification
To the fullest extent permitted by law, you agree to indemnify and hold harmless Mycena and its affiliates and its and their directors, officers, employees and agents from and against all damages, losses, liabilities, costs, claims, demands, fines, awards and expenses of any kind (including without limitation reasonable attorneys' fees and costs) (collectively, "Losses") arising out of or related to: (a) your breach of this Agreement; (b) your User Content, Your Sites and Your eCommerce; (c) any claims by, on behalf of or against your End Users; (d) your violation of any law or regulation or the rights or good name of any third party; and (e) any claims from tax authorities in any country in relation to Your eCommerce operations, including without limitation your sales to individual consumers (including distance sales) and other operations for which Mycena may be held jointly and severally liable. Your indemnification obligations under this Section shall not apply to the extent directly caused by our breach of this Agreement or, where you are an EU Consumer, to the extent that the consequences were not reasonably foreseeable.
13. Dispute Resolution
13.1. Applicability. This Section 13 shall apply to: (a) US Users; (b) Non-US Users who are not EU Consumers; or (c) EU Consumers who bring any claim against Mycena in the US.
13.2. Informal Resolution. Before filing a claim against Mycena, you agree to try to resolve the dispute by first emailing with a description of your claim. We'll try to resolve the dispute informally by following up via email, phone or other methods. If we can’t resolve the dispute within sixty (60) days of our receipt of your first email, you or Mycena may then bring a formal proceeding.
13.3. Arbitration Agreement. You and Mycena agree to resolve any claims, disputes and matters arising out of or in connection with this Agreement (including without limitation its existence, formation, operation and termination) and/or the Services (including without limitation non-contractual disputes and matters) through final and binding arbitration and you and Mycena expressly waive the right to formal court proceedings (including without limitation trial by jury), except as set forth below. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration. There is no judge or jury in arbitration, only an experienced, independent third party that will act as the arbitrator, and court review of an arbitration award is limited. Any arbitration will take place in Collier County, Florida.
13.4. Arbitration Time For Filing. Any arbitration must be commenced by filing a demand for arbitration within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
13.5. NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, collective, consolidated or representative action. Class actions, class arbitrations, collective actions, private attorney general actions and consolidation with other arbitrations aren't allowed.
14. Additional Terms
14.1. Entire Agreement. This Agreement constitutes the entire agreement between you and Mycena regarding the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. You agree that you have not relied upon, and have no remedies in respect of, any term, condition, statement, warranty or representation except those expressly set out in this Agreement. You also may be subject to additional terms, policies or agreements that may apply when you use other services, including Third Party Services. This Agreement creates no third party beneficiary rights, and no third party shall have any right or standing to claim benefit or bring an action to enforce this Agreement (except otherwise agreed upon in additional terms between you and a Mycena group company that sets forth such Mycena group company’s third party beneficiary rights to enforce this Agreement).
14.2. Controlling Law; Judicial Forum For Disputes.
14.2.1. This Agreement (including its existence, formation, operation and termination) and the Services as well as all disputes and matters arising out of or in connection with this Agreement and the Services (including non-contractual disputes and matters) shall be governed in all respects by the laws of the State of Florida in Collier County, without regard to its conflict of law provisions, except that the Federal Arbitration Act (“FAA”) shall prevail to the extent that there exists any conflict between the FAA and the laws of the State of Florida in Collier County with respect to Section 14. If Section 14 is found not to apply to you or your claim, or if you opt out of arbitration pursuant to Section 14.4, you and Mycena agree that any judicial proceeding (other than small claims actions) arising out of or in connection with this Agreement (including its existence, formation, operation and termination) and/or the Services (including non-contractual disputes and matters) must be brought exclusively in the federal or state courts of New York, New York and you and Mycena consent to venue and personal jurisdiction in such courts.
14.3. Waiver, Severability And Assignment. Our failure or delay to enforce any provision of this Agreement is not a waiver of our right to do so later. If any provision of this Agreement is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not delegate, transfer or assign this Agreement or any of your rights or obligations hereunder without our prior written consent, and any such attempt will be of no effect. We may delegate, transfer or assign this Agreement or some or all of our rights and obligations hereunder, in our sole discretion, to any of our affiliates or subsidiaries or to any purchaser of any of our business or assets associated with the Services, with thirty (30) days prior written notice. If you are an EU Consumer, we will ensure that the delegation, transfer or assignment does not adversely affect your rights under this Agreement.
14.4. Modifications. We may modify this Agreement from time to time, and will post the most current version on our site. If a modification meaningfully reduces your rights, we’ll notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate a reasonable period after which the new terms will take effect. Modifications will not apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement and price changes. If you disagree with our changes, then you must stop using the Services and cancel all Paid Services.
14.5. Events Beyond Our Control. We are not in breach of this Agreement or liable to you if there is any total or partial failure of performance of the Services resulting from any act, circumstance, event or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, terrorism, pandemic, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.
14.6. Translation. This Agreement was originally written in English. We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control except where prohibited by applicable law.
