Effective date: October 21, 2020
Welcome to Most Days Inc. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the "Services"). Your purchase of any Services will be governed by any other terms made available by us to you during the sales process. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Welcome to Most Days Inc. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the "Services"). Your purchase of any Services will be governed by any other terms made available by us to you during the sales process. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Address: 548 Market Street, PMB 15058, San Francisco, CA 94104-5401
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at www.mostdays.com, send you an email, and/or notify you by some other means.
If you don't agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
Children's Online Privacy Protection Act
The Children's Online Privacy Protection Act ("COPPA") requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13). We do not knowingly collect or solicit personally identifiable information from children under thirteen (13); if you are a child under thirteen (13), please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us personal information, please contact us at email@example.com.
Health Insurance Portability & Accountability Act
Some professionals you may interact with in connection with our Services qualify as "health care providers" under the Health Insurance Portability & Accountability Act ("Health Care Providers" and "HIPAA", respectively). Such Health Care Providers may require you to review and acknowledge their specific HIPAA Notice of Privacy Practices; any such terms are between you and such Health Care Provider. We encourage you to review ourclick here. which provides additional information on how Most Days Inc. may use your Member Submissions (as defined below) and any communications between you and such Health Care Provider.
What are the basics of using Most Days Inc.?
You may be required to sign up for an account, select a password and user name ("Most Days Member ID"), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Most Days Member ID a name that you do not have the right to use, or another person's name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a "Third Party Account"), such as those offered by Facebook. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you've received your parent's or guardian's permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you're agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization's or entity's behalf and bind them to these Terms (in which case, the references to "you" and "your" in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services you obtain for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren't authorized to use the Services. We can't and won't be responsible for your using the Services in a way that breaks the law.
You will not share your Most Days Member ID, account or password with anyone, and you must protect the security of your Most Days Member ID, account, password and any other access tools or credentials. You're responsible for any activity associated with your Most Days Member ID and account.
No Medical Advice; Not for Emergencies
Most Days Inc. does not offer medical advice or diagnoses, or engage in the practice of medicine. Our Services are not intended to be a substitute for professional medical advice, diagnosis, or treatment and are offered for informational and communicative purposes only. The Services are not intended to be, and must not be taken to be, the practice of medicine, nursing or pharmacy, or the provision of other healthcare advice by Most Days Inc.
The Services are not meant to diagnose or treat any conditions - only your medical professional can determine the right course of treatment for you and determine what is safe, appropriate and effective based on your needs. Reliance on any information provided by Most Days Inc. or in connection with the Services is solely at your own risk. You are solely responsible for any decisions or actions you take based on the information and materials available through the Services.
You acknowledge that although some Content (defined below) may be provided by individuals in the medical profession, the provision of such Content does not create a medical professional/patient relationship between you and Most Days Inc. or between you and any other individual or entity, and does not constitute an opinion, medical advice, or diagnosis or treatment. Healthcare providers and patients should always obtain applicable diagnostic information from appropriate trusted sources. Healthcare providers should never withhold professional medical advice or delay in providing it because of something they have read in connection with our Services. Should any medical issue arise during your use of the Services, you should contact your health care provider immediately.
To the extent that, in addition to the Services you receive from Most Days, you receive medical care from another party, that medical care is separate from and unrelated to the Services. Most Days is not responsible or liable for any advice, course of treatment, diagnosis, or any other information, services, or products that you may obtain from unaffiliated third parties.
If any information you receive or obtain from using the Services is inconsistent with the medical advice of your physician, you should follow the advice of your physician. If you are being treated for any medical condition, or if you are taking any prescription medications or supplements, it is particularly important for you to seek professional medical advice from your health care provider before relying on any information or Content provided on or through the Services.
THE SERVICES SHOULD NEVER BE USED AS A SUBSTITUTE FOR EMERGENCY CARE. IF YOU HAVE A MEDICAL OR MENTAL HEALTH EMERGENCY, ARE THINKING ABOUT SUICIDE OR TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, YOU SHOULD SEEK EMERGENCY TREATMENT AT THE NEAREST EMERGENCY ROOM OR DIAL 911.
Not a Medical Device
The Services and Content are not medical devices and are not intended to be used as medical devices. Furthermore, the Services are not regulated or approved by the U.S. Food and Drug Administration, and are not designed to detect or prevent causes of any medical condition. The Services and Content are not a substitute for medical care or adult supervision. You acknowledge, understand and agree that your use of the Services and Content is entirely at your own risk.
What about messaging?
As part of the Services, you may receive communications through the Services, including messages that Most Days Inc. sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want Most Days Inc. to send you information regarding your account or transactions with us that we think may be of interest to you, which may include Most Days Inc. using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Most Days Inc., and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Most Days Inc.. You agree to indemnify and hold Most Days Inc. harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to your breach of the foregoing.
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not contribute any Content or Member Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
1. infringes or violates the intellectual property rights or any other rights of anyone else (including Most Days Inc.);
2. violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Most Days Inc.;
3. is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
4. jeopardizes the security of your Most Days Member ID, account or anyone else's (such as allowing someone else to log in to the Services as you);
5. attempts, in any manner, to obtain the password, account, or other security information from any other user;
6. violates the security of any computer network, or cracks any passwords or security encryption codes;
7. runs Maillist, Listserv, any form of auto-responder or "spam" on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services' infrastructure);
8. "crawls," "scrapes," or "spiders" any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
9. copies or stores any significant portion of the Content; or
10. decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, Routines (defined below), Member Submissions (defined below) and so forth (all of the foregoing, the "Content") are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's (including Most Days') rights.
Subject to these Terms, we grant each member of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Most Days Inc. owns the Services. You won't modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
What about anything I contribute to the Services - do I have to grant any licenses to Most Days Inc. or to other users?
Member Submissions and Routines
Anything you post, upload, share, store, or otherwise provide through the Services (including Routines, defined below) is your "Member Submission". Some Member Submissions may be viewable by other members, as described below. You are solely responsible for all Member Submissions you contribute to the Services. You represent that all Member Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
You may post, upload, share, store or otherwise provide a list of habits to reach a health goal (each list, a "Routine"). Like all Member Submissions, you can keep private or share Routines with other members, as described below. If you share a Routine, you hereby authorize Most Days to use your name, image, biographical information, and likeness, in connection with the Service and advertising the Service. If you create and share a Routine with Most Days, you understand and agree that you cannot post such Routine on an app or website providing competing services.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any Member Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.
In order to display your Member Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those Member Submissions (see below for more information). Please note that all of the following licenses are subject to ourclick here. to the extent they relate to Member Submissions that are also your personally-identifiable information.
By submitting Member Submissions through the Services, you hereby do and shall grant Most Days Inc. a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the Member Submissions in connection with this site, the Services and our (and our successors' and assigns') businesses, including without limitation for promoting and redistributing part or all of this site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services. You also hereby do and shall grant each user of this site and/or the Services a non-exclusive, perpetual license to access your Member Submissions through this site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such Member Submissions, including after your termination of your account or the Services. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your Member Submissions, including the right to grant additional licenses to your Member Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
If you store a Member Submission in your own personal Most Days Inc. account, in a manner that is not viewable by any other user except you (a "Personal Member Submission"), you grant Most Days Inc. the license above, as well as a license to display, perform, and distribute your Personal Member Submission for the sole purpose of making that Personal Member Submission accessible to you and providing the Services necessary to do so.
If you share a Member Submission in a manner that only certain specified users can view (for example, a private message to one or more other users or a Routine shared with a small group) (a "Limited Audience Member Submission"), then you grant Most Days Inc. the licenses above, as well as a license to display, perform, and distribute your Limited Audience Member Submission for the sole purpose of making that Limited Audience Member Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience Member Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
If you share a Member Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view (such as a Routine made available to any member on the Services), or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services or a Routine (each of the foregoing, a "Public Member Submission"), then you grant Most Days Inc. the licenses above, as well as an exclusive license to display, perform, and distribute your Public Member Submission for the purpose of making that Public Member Submission accessible to all Most Days members and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public Member Submission in connection with the Services and/or otherwise in connection with Most Days' business. Also, you grant all other users of the Services a license to access that Public Member Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide. You understand and agree that it may not be possible to completely delete that content from Most Days Inc.'s records, and that your Member Submissions may remain viewable elsewhere to the extent that they were Limited Audience Member Submissions, Public Member Submissions, or copied or stored by other users.
Certain features of the Services allow you to share information with others, including through your social networks or other Third Party Accounts where you have an account ("Third Party Accounts"). When Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a "share" button on or near the Content. If you share information from the Services with others through your Third Party Accounts, such as your social networks, you authorize Most Days Inc. to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.
Finally, you understand and agree that Most Days Inc., in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your Member Submissions to conform and adapt those Member Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
In accordance with the DMCA, we've adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
(1) Procedure for Reporting Copyright Infringements If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to Most Days' Designated Agent to Receive Notification of Claimed Infringement (our "Designated Agent," whose contact details are listed below):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, email address;
(e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
(a) remove or disable access to the infringing material;
(b) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
(c) terminate such content provider's access to the Services if he or she is a repeat offender.
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
(a) A physical or electronic signature of the content provider;
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
(d) Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Company may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company's discretion.
Please contact Most Days' Designated Agent at the following address:
Most Days Inc.
Attn: DMCA Designated Agent
548 Market Street, PMB 15058, San Francisco, CA 94104-5401
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren't liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can't guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Most Days Inc.. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Most Days Inc. is not responsible for such risks.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Most Days Inc. is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Most Days Inc., its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
Will Most Days Inc. ever change the Services?
We're always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
1. Paid Services. We charge members a fee for using the Services (the "Paid Services"). The Paid Services are offered on a sliding scale. When you sign up to be a member, you select the amount per month that you wish to pay for the Paid Services. If you cannot afford the Paid Services but wish to be a member, we may offer the Services to you at no charge, in our discretion. Please see our Member Pricing page at https://mostdays.com/pricingfor details
2. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms. For example, some Paid Services will charge a fee for downloading or installing the Services through the App Store (as defined below) linked to your specific device. You agree to comply with, and your license to use our mobile application is conditioned upon your compliance with, such App Store terms and conditions. Any refunds relating to the applications or inquiries regarding refunds relating to the applications shall be handled solely by the applicable App Store in accordance with such App Store's terms and conditions.
4. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
5. Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TOACCOUNT SETTINGS.
6. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
7. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
8. Auto-Renewal for Paid Services. Unless you opt out of auto-renewal, which can be done through your account settings, any Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Paid Services at any time, go to account settings or, for mobile applications, cancel your subscription in the subscription management section of the applicable App Store.If you terminate a Paid Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. If you do not want to continue to be charged on a recurring monthly basis, you must cancel the applicable Paid Service through your account settings or terminate your Most Days account before the end of the recurring term. Paid Services cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms, Most Days will not refund any fees that you have already paid.
9. Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
10. Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at firstname.lastname@example.org.
What if I want to stop using the Services?
Most Days Inc. is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. Most Days Inc. has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important Member Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone's safety or security, or otherwise harmful to the rights or property of Most Days.
If you have deleted your account by mistake, contact us immediately at email@example.com - we will try to help, but unfortunately, we can't promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What about Mobile Applications and In-App Purchases?
Through our mobile applications, you may purchase ("In-App Purchase") certain goods or features designed to enhance the performance of the Services. When you make an In-App Purchase, you are doing so through either the Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions, available at http://www.apple.com/legal/internet-services/itunes/us/terms.htmland http://play.google.com/intl/en_us/about/play-terms.html). Most Days is not a party to any In-App Purchase.
I use the Most Days Inc. App available via the Apple App Store - should I know anything about that?
These Terms apply to your use of all the Services, including our iOS applications (the "Application") available via the Apple, Inc. ("Apple") App Store, but the following additional terms also apply to the Application:
1. Both you and Most Days Inc. acknowledge that the Terms are concluded between you and Most Days Inc. only, and not with Apple, and that Apple is not responsible for the Application or the Content;
2. The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
3. You will only use the Application in connection with an Apple device that you own or control;
4. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
5. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple's sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
6. You acknowledge and agree that Most Days Inc., and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
7. You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights, Most Days Inc., and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
8. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
9. Both you and Most Days Inc. acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
10. Both you and Most Days Inc. acknowledge and agree that Apple and Apple's subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
Can I refer other users?
From time to time Most Days may offer rewards or incentives for referring others to the Services. The referring user ("Referrer") may refer individuals or entities who are neither current customers of Most Days Inc. nor registered users of the Services ("Referee"). A registered user is a person or entity that already has an existing account with Most Days Inc.. There is no limit to the number of referrals that Referrer can make, nor the cumulative rewards or incentives that the Referrer may receive through such special offer, unless otherwise indicated. Referrer will receive the stated reward or incentive for each Referee sent by the Referrer that completes the required action described in that specific offer (such as signing up for an account or making a purchase). All Referees must be first-time recipients of the offer, and multiple referrals to the same individual or entity will be disregarded. Most Days Inc. reserves the right to modify or terminate any special offers at any time and to revoke from Referrer and Referee the special offer at Most Days' discretion for any reason or for no reason whatsoever. If Most Days Inc. determines that Referrer or Referee is attempting to obtain unfair advantage or otherwise violate the terms or spirit of such special offer, Most Days Inc. reserves the right to (a) revoke any rewards or incentives issued to either Referrer or Referee and/or (b) charge the Referrer or Referee for any rewards or incentives (1) used by Referrer or Referee prior to such revocation or (2) issued by Most Days to any ineligible Referrer or Referee. All special offers are subject to any other terms, conditions and restrictions set forth on the Services or presented in connection with the special offer.
Warranty Disclaimer. Most Days and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Most Days Inc. and all such parties together, the "Most Days Inc. Parties") make no representations or warranties concerning the Services, including without limitation regarding any Content or Routines contained in or accessed through the Services, and the Most Days Inc. Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Most Days Inc. Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. Services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided "AS-IS" and without any warranty of any kind from the Most Days Inc. Parties or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY MOST DAYS (AND ITS LICENSORS AND SUPPLIERS) ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE MOST DAYS PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO MOST DAYS IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Most Days Inc. Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account) and (b) your violation of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Most Days Inc.'s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Most Days Inc. and limits the manner in which you can seek relief from Most Days Inc.. Both you and Most Days Inc. acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Most Days Inc.'s officers, directors, employees and independent contractors ("Personnel") are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in the city and county of San Francisco. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the "Rules") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Most Days Inc. will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Most Days Inc. will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Most Days Inc. may assert claims, if they qualify, in small claims court in the city and county of San Francisco or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND Most Days Inc WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Most Days Inc. are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Most Days Inc. over whether to vacate or enforce an arbitration award, YOU AND Most Days Inc WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Most Days Inc. is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 52 Alpine Terrace, Unit 2, San Francisco, CA 94117 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms' arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Most Days Inc. to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Most Days Inc. agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, the city and county of San Francisco, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Most Days Inc..
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Most Days Inc. may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Most Days Inc. agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Most Days Inc., and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Most Days Inc., and you do not have any authority of any kind to bind Most Days Inc. in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and Most Days Inc. agree there are no third-party beneficiaries intended under these Terms.