Myna Terms of Service Agreement
Last revised 16 July 2013
These terms of service (the “Terms”) govern your (the “User’s”) use of the online services, web site, and other software (collectively the “Service”) provided by Myna Limited (“Myna”, “we,” or “us”). Myna is incorporated and registered in England and Wales with company number 8234270, with registered office 111 Durley Dean Road, Birmingham B29 6RY, United Kingdom.
If you are using the Services on behalf of an organization, you are agreeing to these Terms on behalf of that organization and promising that you have the authority to bind that organization to these terms. In that case, “you” and “your” will refer to that organization.
1. Use of the Service
Myna provides software for evaluating the effectiveness of web sites, mobile applications, emails, and other computer software and data (the “Customer Software”) via A/B testing.
You may use the Service only if you have the power to form a contract with us, and only in compliance with the Terms and any applicable laws.
The Service is not intended for use by you if you are under 13 years of age. By agreeing to these Terms, you are representing to us that you are over 13.
We may modify, stop, or suspend the Service at any time, without prior notice. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability if in our sole determination you violate any provision of the Terms.
1.2 Member Accounts
You must create an account with Myna to use the Service. When creating and account you are affirming of your representation and warranty:
- all information you submit is accurate and truthful;
- you have permission to submit payment information where permission may be required; and
- you will keep this information accurate and up-to-date.
You may never use another User’s account without permission. You must notify us immediately if there has been a security breach or unauthorized use of your account.
1.3 Acceptable Use
You may not use, or attempt to use, the Service for any activity that is unlawful, or is in our assessment irresponsible or harmful to us or others. This includes:
- copying, disclosing, or distributing any part of the Service in any medium;
- attempting to disrupt, access, or use areas of the Service which we have restricted you from accessing;
- interfering with the proper working of the Service;
- planting malware or otherwise using the Service to distribute malware;
- sending unsolicited communications, promotions or advertisements, or spam;
- sending altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
- using automated systems to send more requests to the Service than could reasonably be produced by humans in the same period of time; or
- impersonating or misrepresenting your affiliation with any person or entity.
2. License Grant
Myna hereby grants you a limited, nonexclusive, nontransferable, nonsublicensable, freely revocable, license to use the Service. Your license to use the Service is automatically revoked if you violate these Terms.
We hereby reserve all rights not expressly granted in these Terms. In particular you must not copy, modify, or create work derivative of the Service except as expressly permitted by us.
3. Ownership Rights
These Terms do not grant you any right, title, or interest in the Service, including without limitation software, text, images, logos, patents, trademarks, service marks, and any improvements to the Service, except as detailed below. We may use any feedback, comments, or suggestions you communicate to us or post in our forums without any obligation to you.
All intellectual property embodied in the Service, including all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, remain the property of Myna. Nothing in the Terms shall be deemed to give you license to any such intellectual property.
3.1 Your Property
3.1.1 Customer Services
You retain ownership of and all rights to any and all Customer Software operated or controlled by you that you integrate with Myna.
3.1.2 Customer Data
3.2 Licenses to Myna
3.2.1 Customer Data
By using the Service you grant Myna a license to use, modify, reproduce, publicly display and create works derivative of your Customer Data for the following purposes:
- provision of the Service;
- improving, supporting, maintaining, and developing the Service, so long as any Customer Data relating to end users of the Customer Software is not reasonably identifiable of an individual;
- promoting, marketing, and advertising the Service, so long as any Customer Data relating to end users of the Customer Software is not reasonably identifiable of an individual; and
- creating and distributing reports, so long as any Customer Data relating to end users of the Customer Software is not reasonably identifiable of an individual.
The license so given is royalty-free, unlimited, nonexclusive, transferable, sublicensable, irrevocable, perpetual, and worldwide.
3.2.2 Name and Logo
By using the Service you grant Myna a licence to use, reproduce, publicly display, and distribute your name and other identifying words, marks, logos, or other graphical devices associated with you in any form, via any media for the following purposes:
- providing the Service;
- marketing, promotion, or advertising of the Service;
- identifying you as a customer of Myna when providing a customer reference to other Users; and
- creating case studies relating to your use of the Service.
The license so given is royalty-free, unlimited, nonexclusive, transferable, sublicensable, irrevocable, perpetual, and worldwide.
4. Paid Services
Where we require payment to use the Service, these payments are governed by the following terms:
4.1 Price Changes
We may, at any time without notice, change the fees and charges for use of the Service, or add additional services with new fees and charges.
4.2 No Refunds
There are no refunds in the event of you cancelling your subscription to the Service.
4.3 Subscription Terms
You acknowledge you are responsible for paying all fees and charges we set for your use of the Service, whether or not you use the service or cancel your subscription before your subscription period ends.
Your subscription will automatically renew at the end of each subscription period, unless you provide us with notice of your intention to cancel the subscription at least 15 days before the end of your current subscription period.
We may cancel your subscription if payment is later than 15 days from the end of your subscription period.
4.4 Taxes and Payment Charges
You agree to pay all taxes, including sales tax, incurred by your use of the service. You agree to pay all service charges incurred by use of your credit card, debit card, or other payment method used for paying for the Service.
All prices for the Service include VAT where applicable. Myna’s VAT number is 145 0906 25.
5. Data Security
Myna will use commercially reasonable efforts to ensure that all facilities used to store and process Customer Data meet commercially reasonable security standards.
By using the Service you indicate you have the right to disclose Customer Data to Myna, and the right to allow us to use your Customer Data as set out in the Terms.
You will indemnify, defend, and hold harmless Myna from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding:
- Customer Data;
- your use of the Service in violation of the Terms;
- use of the Service by your users; or
- any other claim regarding your Customer Software.
Myna will indemnify, defend, and hold harmless you from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim based on an allegation that your use of the Service violates, infringes, or misappropriates any copyright, trade secret, patent, or trademark right of the third party.
The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that:
- any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and
- the other party may join in the defense with its own counsel at its own expense.
7. No Warranty
THE SERVICE IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, MYNA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT.
NO ADVICE OBTAINED BY YOU FROM MYNA CREATES ANY WARRANTY NOT STATED DIRECTLY WITHIN THE TERMS.
MYNA MAKES NO WARRANTY FOR ANY PRODUCT, SERVICE, OR INFORMATION PROVIDED BY A THIRD PARTY THAT USES OR DESCRIBES MYNA, AND SIMILARLY THERE IS NO WARRANTY PROVIDED FOR ANY THIRD PARTY SERVICE PROVIDED VIA MYNA.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MYNA OR ITS AGENTS BE RESPONSIBLE FOR ANY LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICE, OR FROM UNAUTHORIZED USE OF YOUR ACCOUNT.
This limitation applies even if Myna has been advised about the possibility of the alleged liability, or knew or should have known about the possibility.
Nothing in this agreement is intended to or shall operate to create a partnership between you and Myna, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
You may not assign or transfer any rights or obligations under these Terms without the written consent of Myna.
Myna may not assign or transfer any rights or obligations without providing notice to you, except Myna may assign these Terms to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice.
Any other attempt to transfer or assign is void.
If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
9.4 Entire Agreement
These Terms, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
9.5 Force Majeure
Neither Myna nor you will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, zombie apocalypse, and Internet disturbance).
Notices must be sent via first class, airmail, or overnight courier and are deemed given when received, or by email and are deemed given when sent if the email is received in full on a business day and on the next business day if the email is sent on a weekend or public holiday.
All notices to Myna via email shall be sent to the address firstname.lastname@example.org. Notices to you will be sent to the email address you have registered with your account.
Myna is not responsible for delivery of any email, and in particular is not responsible for any automatic filtering applied to the email address you provide to us that may prevent you receiving email from us.
We may from time to time send you information about the Service via email. If you do not wish to receive such information, please click on the unsubscribe link in the email footer.
A waiver of any term in the Terms is not a waiver of any other term.
Unless specifically provided otherwise, rights arising under the Terms are cumulative and do not exclude rights provided by law.
9.8 Governing Law
Myna operates from England. No representation is made that the Service is appropriate for use or available to use in other locations. Use of the Service from other locations requires you to do so at your own risk and to ensure compliance with all applicable laws of England.
The Terms and any disputes or claims arising out of or in connection with the Service are governed by, and construed in accordance with, the law of England.
You irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).