Last modified January 11, 2016
Welcome to myFave (a.k.a. “we” or “us” or the “Company“). We are excited to have you as member merchant of the platform. These terms and conditions (collectively, these “Terms of Service“ or “Agreement“) govern your access to and use of the Freemium and Premium products and services offered by myFave Media Inc. (“myFave“) accessible via our mobile application (the “App“), the website getmyfave.ca, including successor domain names (the “Site“), and any and all information, text, graphics, photos, or other materials uploaded, downloaded, or appearing on the Services (as defined below).
Hi! I’m an annotation. I’m here to explain you the hard parts of this document, but I’m not technically part of the Terms so don’t skip the rest.
We want to keep our relationship with you as lean and informal as possible, but please read the Terms of Service carefully before you start using the Platform, because by using the Platform you accept and agree to be bound and abide by these Terms of Service.
This is a very standard provision for a Platform like myFave: since the monetary cost of using myFave is relatively inexpensive, we have to disclaim some things in advance (like the fact that our platform might experience downtime, that we don’t own the content published, etc.). This agreement is linked in the footer of the Site and in the settings menu of the App, according to the industry standard, to be easily found.
Wherever used in these Terms of Service, “you“, “your“, “Customer”, “Merchant Partner” or similar terms means the person or legal entity accessing or using the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service.
myFave reserves the right, at any time, to update and change any or all of these Terms of Service, in its sole discretion, including but not limited to the fees and charges associated with the use of the Services. If myFave does so, it will post the modified Terms of Service on the Site, though we will notify you of any changes that, in our sole discretion, materially impact these Terms of Service. Continued use of the Services after any such changes have been made shall constitute your consent to such changes. You are responsible for regularly reviewing the most current version of the Terms of Service, which are currently available at: getmyfave.ca/tos-merchants
“Authorized Users” means individuals who are directly accessing the Services via an online sign-up process or an in-app sign-up process, or individual users authorized by you to use the Services and who you have supplied user identifications and passwords to. Authorized Users may include your employees, consultants, contractors, agents, or your other designees, but shall not include any employee or agent of any myFave competitor.
“Customer Content” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format provided or made available to myFave by or on your behalf in relation to the use of the Services.
“Fair Use Policy” means the limits placed on usage as described in Section 2.6.
“Member” means the other users of the Platform, primarily interacting with the Platform via the App and primarily belonging to your clientelle or to the clientelle of our other Merchant Partners.
“Mentions” means the information, including links, posts, and excerpts, that may be published about you on the Platform by you, an Authorized User, another Merchant Partner, or a Member including customer reviews and feedback.
“Merchant Partner” means you and any one individual or business like you that is authorized to use the Platform for promotion of their business, bettering their community and benefiting their clientelle.
“Platform” means the myFave products and services including the Site, the App, and other products and services made available to you and to Authorized Users.
“Seat” means a single subscription associated with a single log-in to the Site, assigned to one Authorized User.
“Services” means myFave Freemium, myFave Premium, and other products and services made available via myFave’s proprietary software delivered through the Site and mobile applications that provide for a single log-in, centralized dashboard that enables you and Authorized Users to manage and publish content using the Platform, including any modifications or Updates (as defined below).
“Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any instalments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities).
2.1 Services and Support.
If you select myFave Freemium: During the Term (as defined below), subject to the terms and conditions of this Agreement, and solely for your personal or own business purposes, myFave shall use commercially reasonable efforts to make the myFave Freemium services available to you.
If you select myFave Premium: During the Term (as defined below), subject to the terms and conditions of this Agreement, and solely for your personal or internal business purposes, myFave shall use commercially reasonable efforts to make the myFave Premium services available to you and your Authorized Users for the number of Seats purchased. myFave will provide myFave Premium customers with standard support 24 hours per day, every day of the week.
If you select other myFave products and services: During the applicable term, subject to the terms and conditions of this Agreement (including any terms that only apply to your access to and use of certain myFave services), and solely for your personal or internal business purposes, myFave shall use commercially reasonable efforts to make such myFave services available to you and your Authorized Users, if applicable, for the quantities purchased.
2.2 Updates and Functionalities. myFave is a work in progress, meaning that a lot will change in the near future. You acknowledge that from time to time myFave may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, myFave shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates“). Your continued use of the Platform following the publishing of updated Terms of Service means that you accept and agree to the changes.
2.3 Acceptable Use. You shall (i) be responsible for your and your Authorized Users’ compliance with these Terms of Service, including the Fair Use Policy; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Content and of the means by which you acquired or generated Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, including keeping your password and username confidential and not permitting any third party to access or use your user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through your account in connection with the Services; (v) promptly notify myFave if you become aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of your (or any Authorized User’s) user name, password, or account; (vi) use the Services only in accordance with applicable laws and government regulations; (vii) comply in all respects with all applicable terms of the Third-Party Services that you subscribe to or otherwise access in connection with your use of the Services. You must not (a) make the Services available to anyone other than to your Authorized Users; (b) allow more than one individual Authorized User to use a Seat; (c) sell, trade, or otherwise transfer your Seats to another party; (d) use the Services to store or transmit any content, including Customer Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (e) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (f) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (g) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (h) attempt to gain unauthorized access to the Services or its related systems or networks; (i) authorize, permit, or encourage any third party to do any of the above; or (j) send Spam!
2.4 Mentions. You understand that by using the Services you may be exposed to third-party content, information, and Mentions that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. myFave does not own, control, or review Mentions, and unless Customer creates the content of Mentions, Mentions shall not be considered "Customer Content" under any circumstances. Mentions may be indecent, offensive, inaccurate, unlawful, or otherwise objectionable. myFave has no obligation to preview, verify, flag, modify, filter, or remove any Mentions, even if requested to do so, although myFave may do so in its sole discretion. Your use of Mentions is at your sole risk, and myFave shall not be liable to you or any third party in relation to Mentions.
2.5 Fair Use Policy. myFave may suspend your access to the Services for abusive practices that degrade the performance of the Services for you and/or other customers of myFave.
2.6 Third-Party Products and Services. You acknowledge that the Services may enable or assist you to access, interact with, and/or purchase services from other third parties via third-party websites or applications (collectively, the "Third-Party Services"). When you access the Third-Party Services, you will do so at your own risk. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not myFave. myFave makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party.
2.7 Non-Exclusivity. You acknowledge that the rights granted to you under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict myFave's right to license, sell, or otherwise make available the Services to any third party or perform any services for any third party.
2.9 Eligibility. In order to use myFave, you must:
By using myFave, you represent and warrant that you meet all the requirements listed above, and that you will not use myFave in a way that violates any laws or regulations. myFave may refuse service, close accounts of any users, and change eligibility requirements at any time.
“Representing and warranting” is like making a legally enforceable promise.
3.1 myFave Services. As between you and myFave, myFave retains all right, title, and interest in and to the Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of myFave’s rights or interests therein or any other myFave intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by myFave. We encourage your feedback, in the form of reviews, comments, and suggestions or recommendations for modifications, improvements or changes to the Services or the Platform that you may choose in your sole discretion to provide us from time to time (“Feedback“). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for myFave notwithstanding anything else. You shall, and hereby do, grant to myFave a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
3.2 Customer Content. You grant myFave a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 9.1) license, without a right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content for the purpose of supporting your use of the Services and providing Services to you. myFave may also use Customer Content for the purpose of supporting and developing the Site, provided that when doing so, myFave shall only use Customer Content in an anonymized and aggregated way. Subject only to the limited license expressly granted herein, you and your Authorized Users shall retain all right, title and interest in and to the Customer Content and all intellectual property rights therein. Nothing in this Agreement will confer on myFave any right of ownership or interest in the Customer Content or the intellectual property rights there mentioned.
3.4 Right to Review. We do not guarantee that any Customer Content will be made available on the Platform. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Customer Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Customer Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Customer Content from the Platform.
4.1 myFave Premium and Other Paid Services. For myFave Premium and other paid services made available through myFave Freemium and myFave Premium (“Paid Services“), you must provide myFave with a valid credit card or other forms of cash payment (e.g., PayPal account) to pay for such services. If you are purchasing myFave Premium or Paid Services via an online purchase, you can choose to purchase on a yearly or multi-yearly subscription. In addition, you agree that myFave has permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms myFave retains in the future) your submitted payment information in order to process your purchase. Depending on where you transact with us, the type of payment method used and where your payment method was issued, your transaction with us may be subject to foreign exchange fees or differences in prices, including because of exchange rates. myFave does not support all payment methods, currencies, or locations for payment. If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel or downgrade your account to a myFave Freemium account, you authorize myFave to continue billing your credit card and/or PayPal account and you remain responsible for any uncollected amounts. All applicable taxes are calculated based on the billing information you provide us at the time of purchase.
4.2 Free Trial Period. myFave does not provide Free Trial Periods with myFave Premium or Paid Services.
4.3 Subscription Services; Auto-renewal and Cancellation. If you are purchasing myFave Premium or Paid Services on a subscription basis, you can choose to purchase on a yearly (12 calendar months) or on a multi-year (24 and 36 calendar months) subscription and your subscription will renew automatically. Subscriptions are billed in advance and renewals are billed on anniversary basis (as per the option chosen when you purchased such services) and are non-refundable for the subscription period they are purchased for. You agree that myFave may process your credit card or PayPal account on each monthly, annual, or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the first day you subscribed to a paid subscription. If your paid subscription to myFave Premium or other Paid Services began on a day not contained in a subsequent month (e.g., your service began on January 30 and there is no February 30), myFave will process your payment on the last day of such month. You may elect to cancel or downgrade your myFave Premium account at any time by emailing us. . Please note that other Paid Services (such as apps purchased via the myFave app directory) will require to be uninstalled separately via the app directory. If you subscribed to a yearly plan, your myFave Premium account will be immediately downgraded to a myFave Freemium account, but no credit will be issued for any prepaid fees for your myFave Premium account. If you purchased Paid Services in association with a yearly plan, myFave will issue myFave credits equivalent to the prorated prepaid fees of such Paid Services on the date of the cancellation. Such credits are non-refundable, but can be used against the purchase of any future myFave services. If you subscribed to a yearly plan, any cancellation will only be effective at the end of the then-current annual billing period and no credits or refunds will be issued to you for prepaid fees. myFave will fully refund any myFave Premium subscription if you notify us in writing via email within the Cancellation Period (as per the option chosen when you purchased such services) based on the day when you purchased the subscription.
4.4 Late Payment. If any amounts due hereunder are not received by myFave by the due date, then at myFave’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 10 days’ written notice, myFave may suspend your access to the Services if myFave does not receive the amounts invoiced hereunder at the expiration of such period.
4.5 Taxes and Withholdings. You are responsible for paying all Taxes associated with your purchase of services. If myFave has the legal obligation to pay or collect Taxes for which you are responsible under this Section, the appropriate amount shall be invoiced to and paid by you, unless you provide myFave with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, myFave receives an amount equal to the sum it would have received had no such deduction or withholding been made.
5.1 myFave Freemium and Premium Services. If you sign-up for a myFave Freemium or myFave Premium account, this Agreement shall commence on the day you access the Services for the first time and shall continue until your account is cancelled and you cease using our Services (the “Term“).
5.2 Closing Your Account, Termination. You or myFave may terminate this Agreement at any time and for any reason by giving Notice to the other party. If you violate the letter or spirit of these Terms of Service, abuse the Services, or otherwise create risk or possible legal exposure to myFave, myFave can terminate or suspend your myFave Account at our sole discretion. myFave will notify you by email or at the next time you attempt to access your account. You may also cancel or disable your myFave Freemium account at any time by submitting a written request to us at firstname.lastname@example.org. myFave will not refund or reimburse you if there is cause, like a violation of these Terms of Service. Once terminated, we may permanently delete your account and all the data associated with it. If you do not log in to your account for 12 or more months or if there is no Platform activity for 12 or more months, we may treat your account as “inactive” and permanently delete the account and all the data associated with it.
5.3 Effects of Termination. Upon termination of this Agreement for any reason, (i) you will immediately cease all use of the Services; (ii) you will have no further access to your accounts provided by myFave; and (iii) you will pay myFave all unpaid amounts owing to myFave.
5.4 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.
5.5 Attorney Fees. If we file an action against you claiming you breached these Terms of Service and we prevail, we are entitled to recover reasonable attorney fees and any damages or other relief we may be awarded.
5.6 Liquidated Damages. In some cases, a breach of this Agreement could cause damages, but proving the actual damages would be impossible. These cases will result in the corresponding liquidated damages, which are a reasonable pre-estimate of the damages: (1) if you publish Customer Content that violate anti-Spam laws, then the liquidated damages will be five times the amount you paid us over the past 12 months, but not less than US$900; (2) if you host images for anything other than your Customer Content, or use our resources in any way that's not permitted by this Agreement, then the liquidated damages will be four times the amount you paid us over the past 12 months, but not less than US$720; or (3) if you do not pay an amount due within thirty (30) days after we send you a late payment notice, then the liquidated damages will be three times the total amount you paid us over the past 12 months, but not less than $540 plus the amount owed.
5.7 Equitable Relief. If you violate this Agreement then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.
5.8 Subpoena Fees. If we have to provide information in response to a subpoena related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, FAVE EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FAVE SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, FAVE DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FAVE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THAT MEANS WE DO NOT PROVIDE WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITENSS FOR A PARTICULAR PURPOSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. FAVE DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE CUSTOMER CONTENT AND MENTIONS, OR ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. FAVE DOES NOT CONTROL OR VET CUSTOMER CONTENT OR MENTIONS AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. FAVE IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICESASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES. FAVE EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IF YOU ARE DISSATISFIED OR HARMED BY FAVE OR ANYTHING RELATED TO FAVE, YOU MAY CANCEL YOUR FAVE ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 4.3 (AUTO-RENEWAL AND CANCELLATION) OR SECTION 5.2 (TERMINATION), AS APPLICABLE, AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND FAVE'S SOLE AND EXCLUSIVE LIABILITY).
Since people use myFave for a variety of reasons, we cannot guarantee that myFave will meet your specific needs. But we hope it does!
7.1 Your Indemnification. You shall defend, indemnify, and hold harmless myFave, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that the Customer Content or your use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (b) relating to, or arising from, Customer Content, or your breach of Section 2.3 or Section 2.6; or (c) relating to, or arising from, Third-Party Services.
Indemnity is an agreement to compensate someone for a loss.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FAVE'S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) THE fees paid by YOU FOR THE SERVICES HEREUNDER DURING THE three (3) month PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) US$500. FAVE DOES NOT OFFER ANY WARRANTY OR REMEDIES FOR THE INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FAVE, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL FAVE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF FAVE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF FAVE FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF FAVE, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF FAVE; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
9.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of myFave (not to be unreasonably withheld), and any attempted assignment or transfer without such consent will be void. myFave may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you. myFave may also substitute, by way of unilateral novation, effective upon notice to you, myFave Media Inc. for any third party that assumes our rights and obligations under this Agreement.
9.2 Amendment. myFave reserves the right to modify, supplement, or replace the terms of this Agreement, effective upon posting on the myFave website or notifying you otherwise. Your continued use of the Services after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new terms. Except for changes made by myFave as described here, no other amendment or modification of this Agreement shall be effective unless set forth in a written agreement bearing a written signature by myFave and you.
9.3 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
9.4 Notices. For purposes of service messages and notices about the Services, myFave may place a banner notice across its pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from myFave to an email address associated with your account, even if myFave has other contact information. You also agree that myFave may communicate with you through your myFave account or through other means including email, mobile number, telephone, or delivery services including the postal service about your myFave account or services associated with myFave. You acknowledge and agree that myFave shall have no liability associated with or arising from your failure to do so maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services. You may provide legal notice to myFave via email (email@example.com) with a duplicate copy sent via registered mail to myFave (a 2Simple project), 527 15 Ave, Calgary, AB, T2R 1R5; Attention: General Counsel. The email address provided may be updated as part of any update to these Terms of Service.
9.5 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all parties to this Agreement, except that any provision which does not give rights or benefits to particular parties may be waived in writing, signed only by those parties who have rights under, or hold the benefit of, the provision being waived if those parties promptly send a copy of the executed waiver to all other parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
9.6 Nature of Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
9.7 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party's reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs, or labor disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
9.8 Governing Law. This Agreement and your relationship with myFave shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the province of Alberta, Canada and shall be considered to have been made and accepted in Alberta, Canada, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts of Alberta in Calgary. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
We welcome any comment, question and communication at firstname.lastname@example.org
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