TERMS OF SERVICE
Last Updated: June 1, 2019
- Acceptance of Terms
This Terms of Service document (“TOS”) is an agreement you must accept in order to use Mitsy’s Platform (as defined below). “Mitsy” and “mymitsy.com” are trade names of Mitsy, LLC, a Georgia company with its principal place of business at 123 West Hill St., Decatur, Georgia 30030. This TOS is applicable to all categories of users of the Platform, including account owners, administrators, and standard users. The terms “you” and “users” encompass all users. This document describes both your rights and your obligations as part of using the Platform. It is important that you read it carefully because you will be legally bound to these terms. Mitsy only provides its Platform (as defined below) to you subject to this TOS. By accepting this TOS or by accessing or using the Platform, you agree to be bound by this TOS.
If you are entering into this TOS on behalf of a school, school system, association, company, or other legal entity, you represent that you have the authority to bind such entity, its users, and its affiliates to this TOS. If so, the terms “you” or “your” also refer to such entity, its users, and its affiliates, as applicable. If you do not have such authority, or if you do not agree with this TOS, you may not use the Platform. You acknowledge that this TOS is a contract between you and Mitsy, even though it is electronic and is not physically signed by you and Mitsy, and it governs your use of the Platform.
Mitsy reserves the right to make changes to this TOS from time to time. If we make a material change to the TOS, we will provide you with reasonable notice prior to the changes either by emailing the email address associated with your account or by posting a notice on the Site (as defined below). You can review the most current version of the TOS at any time by visiting this page. The revised terms and conditions will become effective on the date set forth in our notice, and if you use the Platform after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to cancel your account and stop using the Platform, which you may do through the process provided in the Platform.
As part of the registration process, you will identify an owner’s user name (in the form of an email address) and password for your account. You may use these credentials to invite individuals to become administrative and standard users (each with their own user name and password) under your account. You are responsible for maintaining the confidentiality of your user name, password, and account and for all activities that occur under your login or account, including the activities of all users.
All users should be aware that your administrators may have certain rights to access your account and may obtain related information in connection with the Platform. The administrators also set policies regarding your use of various aspects of the Platform, including retention settings and the ability to preserve and export all data in the account. Administrators are solely responsible for informing members of the applicable entity policies, obtaining any legally required member consent to such policies, and for ensuring that all uses of the Platform comply with applicable federal, state, and international privacy laws.
By accessing or using the Platform, you affirm that you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live). You represent that you are fully able and competent to enter into and comply with the terms and conditions in this TOS.
- Description of the Platform; IP Rights
The “Platform” means (a) Mitsy’s student directory platform, and related systems and technologies, as well as the website http://www.mymitsy.com (the “Site”), and (b) all software (including the Software, as defined below), applications, data, reports, text, images, and other content made available by or on behalf of Mitsy through any of the foregoing. The “Platform” does not include Your Data (as defined below) or any software application or service that is provided by you or a third party, which you use in connection with the Platform, whether or not Mitsy designates them as “official integrations” (each a “Non-Mitsy Product”). Any modifications and new features added to the Platform are also subject to this TOS. Mitsy reserves the right to modify or discontinue the Platform (or any Platform plan) or any feature or functionality thereof from time to time. All rights, title, and interest in and to the Platform and its components (including all intellectual property rights) will remain with and belong exclusively to Mitsy.
III. Accessing and Using the Platform.
You may access and use the Platform only for its intended purposes, and you shall not misuse the Platform in any manner (as determined by Mitsy in its sole discretion). See Section 6 for specific provisions outlining prohibited uses of the Platform. Administrative users shall be responsible for all actions by standard members on their account. You shall comply with any codes of conduct, policies, storage limitations, or other notices Mitsy provides you or publishes in connection with the Platform from time to time, but if any of those policies materially change the TOS, we will provide you with reasonable notice. You agree to promptly notify Mitsy if you learn of a security breach related to the Platform.
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like. You are also responsible for maintaining the security of your equipment, your account, your passwords and files, and for all uses of your account or your equipment with or without your knowledge or consent.
Any software that may be made available by or on behalf of Mitsy in connection with the Platform (the “Software”) contains proprietary and non-public information (“Confidential Information”) that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Mitsy only grants you a personal, non-sublicensable, non-transferable, and non-exclusive license to use the object code of any Software solely in connection with the Platform. Any rights not expressly granted herein are reserved. Except for the limited rights granted above, Mitsy retains all right, title and interest, including all intellectual property rights, in and to the Platform. You acknowledge and agree that the Platform constitutes Mitsy’s valuable trade secrets and improper use or disclosure would cause Mitsy irreparable harm. Accordingly, you agree to use the Platform solely as authorized in this TOS. You further acknowledge that the access granted pursuant to this Agreement is not a sale and does not transfer to you title or ownership of the Platform or a copy of the Platform, but only a right of limited use. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO MITSY.
From time to time, you may provide us with information about your use and experience with the Platform, including any issues or suggestions (“Feedback”). You acknowledge that, in the course of using the Platform, you may obtain or learn information relating to the Platform or Mitsy’s know-how, which may include, without limitation, information relating to the Platform’s performance, reliability, stability, operation, techniques, processes, ideas, algorithms, or software design and architecture (collectively, “Proprietary Information”). As between the parties, such Feedback and Proprietary Information belongs solely to Mitsy and will be deemed Confidential Information of Mitsy, and Mitsy will be free to use such Feedback and Proprietary Information in any manner.
- Your Data Rights and Related Responsibilities.
“Your Data” means any data and content you upload, post, transmit, or otherwise make available via the Platform (which may include data you elect to import from Non-Mitsy Products you use), including but not limited to all such and content provided by any authorized user associated with your account. Your Data includes data you upload, files you upload, profile information, personnel information, personal contact information, and anything else you enter or upload into the Platform. Mitsy will make commercially reasonable efforts to ensure that all facilities used to store and process Your Data meet a high standard for security. If we make a material change to our security measures, we will provide you with reasonable notice prior to the changes either by emailing the email address associated with your account or by posting a notice on the Site. The revised terms will become effective on the date set forth in our notice, and if you use the Platform after that date, your use will constitute acceptance of the revised terms. If any change to our security measures are not acceptable to you, your only remedy is to cancel your account and stop using the Platform, which you may do through the process provided in the Platform.
In order for Mitsy to provide the Platform to you, we require that you grant us certain rights with respect to Your Data. For example, we need to be able to transmit, store, and copy Your Data in order to display it to you and your users, to index it so you are able to search it, to make backups to prevent data loss, to receive updated data from users, and so on. Your acceptance of this TOS gives us the permission to do so and grants us any such rights necessary to provide the service to you, only for the purpose of providing the service (and for no other purpose). This permission includes allowing us to use third-party service providers in the operation and administration of the Platform and the rights granted to us are extended to these third parties to the degree necessary in order for the Platform to be provided.
If you send us any Feedback regarding the Platform, you grant Mitsy an unlimited, irrevocable, perpetual, transferable, free license, with the right to grant sublicenses, to use any such Feedback for any purpose without any obligation to you.
You are solely responsible for your conduct (including by and between all users), the content of Your Data, and all communications with others while using the Platform. You acknowledge that Mitsy has no obligation to monitor any information on the Platform. We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other information you and your users may be able to access using the Platform.
You grant to Mitsy a non-exclusive, royalty-free license during your use of the Platform, to use the Your Data for the purpose of performing Mitsy’s obligations under this Agreement. Such right shall include permission for Mitsy to generate and publish aggregate, anonymized reports on system usage and data trends and type.
To use the Platform, you will be required to submit a Purchase Order and provide accurate information regarding your selected method of payment. You will promptly update your account information with any changes in your payment method information. You agree to pay Mitsy in accordance with the terms set forth in your Purchase Order, on the Site, and this TOS, and you authorize Mitsy or its third-party payment processors to bill your payment instrument in advance on a periodic basis in accordance with such terms.
If you dispute any charges, you must let Mitsy know within sixty (60) days after the date that Mitsy charges you. All amounts paid are non-refundable and we reserve the right to change our prices in the future. If we alter our prices for access to the Platform, we will provide notice of the change on the Site or in email to you at least 30 days before the change is to take effect. Your continued use of the Platform after the price change goes into effect constitutes your agreement to pay the changed amount. Mitsy may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees shall accrue interest daily at the lesser of 8% per month or the maximum permitted by law, plus all expenses of collection. You shall be responsible for all taxes associated with the Platform other than U.S. taxes based on Mitsy’s net income.
All fees are exclusive of all federal, state, provincial, municipal, or other taxes which you agree to pay based on where you are located and/or primarily domiciled. Accounts with annual paying subscriptions will be charged in advance each year beginning at execution of your Purchase Order (“Sign-up”). All charges are non-refundable. No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of one or more users. There are no charges for canceling a subscription, and paying subscriptions cancelled prior to the end of their current billing cycle will not be charged again in the following cycle. The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades. Subscription changes, including downgrades, may result in loss of access to some content or features, or an increase or reduction in the amount of available capacity for Your Data provided by the Platform.
- Representations and Warranties.
You represent and warrant to Mitsy that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Data or have obtained all permissions, releases, rights, or licenses required to engage in your activities (and allow Mitsy to perform its obligations) in connection with the Platform without obtaining any further releases or consents; and (iii) Your Data and your other activities in connection with the Platform, and Mitsy’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Data contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive, or harassing.
You also agree not to:
- upload, post, transmit, or otherwise make available any of Your Data that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
- impersonate any person or entity, including, but not limited to, a Mitsy employee, administrator, owner, or other standard user, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- use the Platform as a competitor of Mitsy for reasons that are adverse to, or can reasonably be expected to compete with, Mitsy;
- manipulate identifiers in order to disguise the origin of any of Your Data;
- upload, post, transmit, or otherwise make available any of Your Data that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, transmit, or otherwise make available any of Your Data in a manner that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
- sublicense, resell, rent, lease, transfer, or assign the Platform or its use, or offer the Platform on a timeshare basis to any third party;
- use the Platform to upload, post, transmit, or otherwise make available any software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware;
- interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform, including using any device or software;
- modify, adapt, or hack the Platform, including by using any non-public Mitsy APIs, or otherwise attempt to gain unauthorized access to the Platform or its related systems or networks;
- intentionally or unintentionally violate any applicable local, state, national, or international law in connection with your use of the Platform, including, but not limited to, any data, privacy laws; or
- use the Platform to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
You must evaluate, and bear all risks associated with, the use of Your Data, including any reliance on the accuracy, completeness, or usefulness of Your Data.
You acknowledge, consent, and agree that Mitsy may access, preserve, and disclose your account information and Your Data if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to your requests for customer service; or (iv) protect the rights, property, or personal safety of Mitsy, its users, and the public.
VII. Term and Termination.
This TOS will continue in full effect unless and until your account or this TOS is terminated as described herein. Service Plans that are paid annually will automatically renew for additional years unless terminated at least 30 days prior to the end of the then-current service period. You have the right to deactivate your account at any time by using the account deactivation interface provided on the Platform. Only owners have the ability to deactivate and delete accounts. Upon cancellation or termination by you or Mitsy, Mitsy will have no obligation to maintain or provide Your Data. Mitsy will delete or otherwise destroy all copies of Your Data in our possession or control in a reasonably expedient way, unless legally prohibited. Your Data will be made available to you for download for a period of 30 days, after which it will be deleted.
We reserve the right to deactivate and delete your account (or the access privileges of any owner, administrative user, or standard user) and terminate this TOS at any time, with or without notice, for material violations of this TOS. Mitsy may, in its sole discretion, publish policies whereby we delete your account for prolonged inactivity. Termination of this TOS shall be in addition to and not in lieu of any equitable remedies available to Mitsy stemming from a material violation of this TOS.
All accrued rights to payments due under the terms of this TOS shall survive termination.
VIII. Support Services
If you encounter technical difficulties in your use of the Platform, or otherwise need guidance in accessing or using one or more features of the Platform, Mitsy is available to provide assistance during Business Hours.
Upon encountering any difficulties using or accessing the Platform, including any of its features, you should first consult our online knowledge/frequently asked questions page available at the support tab within the navigation bar of the Platform. If your issue remains unresolved, users associated with your account should contact the account owner within your entity/association.
In instances where the account owner cannot resolve your issue, please contact Mitsy directly at TheTeam@mymitsy.com. Mitsy will make every effort to acknowledge any user inquiries within two business days of its receipt. As used herein, “Business Days” means Monday through Friday, excluding national holidays.
- Disclaimer of Warranties.
The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond our reasonable control, but Mitsy shall use reasonable efforts to provide advance notice of any material scheduled service disruption. Further, you understand that Your Data may be transmitted or handled in an unencrypted manner if you choose to use unencrypted gateways to connect to the Service. Additionally, while Mitsy takes steps to ensure that information provided to its third party vendors and hosting partners is transmitted using reasonable security measures, it does not guarantee that these transmissions will be encrypted. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Data. Mitsy will have no liability to you for any unauthorized access or use of any of Your Data, or any corruption, deletion, destruction, or loss of any of Your Data.
THE PLATFORM AND ALL RELATED FEATURES, COMPONENTS, AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND MITSY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT MITSY DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM, AND NO INFORMATION, ADVICE, OR SERVICES OBTAINED BY YOU FROM MITSY OR THROUGH THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
- Limitation of Liability.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL MITSY BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, TWO HUNDRED ($200) U.S. DOLLARS, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, MITSY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Mitsy shall not be responsible for any activity occurring in connection with your use of Platform, and you shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations, including those related to data privacy, international communications, and the transmission of technical or personal data. You must notify Mitsy immediately of any other known or suspected breach of security.
You agree that your access to the Platform may be subject to limitations, delays, and other problems due to the inherent nature of the Internet and electronic communications, modification or transfer of Platform infrastructure, or other software, network, hardware, or infrastructure issues. You agree that Mitsy is not responsible for any delays, delivery failures, or other damage resulting from such problems. Mitsy does not own any content that you submit to the Platform, nor does Mitsy review or pre-screen any content that you submit. Mitsy shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any content and/or use of content by you.
Mitsy shall not be liable for any hardware, software, infrastructure, or any other services provided to you by any third party.
Each Party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement. Both Parties reserve the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
You will indemnify, defend, and hold Mitsy (and any of its directors, officers, employees, agents, and representatives) harmless from any claim, action, suit, or proceeding made or brought against Mitsy arising out of or related to your breach of any term of this Agreement.
Mitsy, at its own expense, will defend any action brought against you to the extent that it is based on a claim that the Platform was used exclusively within the scope of this Agreement and such use infringes any patents, copyrights, licenses, or other property right, provided that Mitsy is immediately notified in writing of such claim and, for any claims of patent infringement, that all steps or elements of the asserted patent claim(s) are performed by the Platform and are not in any way dependent on unique characteristics of Your Data. Mitsy shall have the right to control the defense of all such claims, lawsuits, and other proceedings. In no event shall you settle any such claim, lawsuit, or proceeding without Mitsy’s prior written consent. If, as a result of any claim of infringement of any patent, copyright, license, or other property right, Mitsy is enjoined from using the Platform, or if Mitsy believes that the Platform is likely to become the subject of a claim of infringement, Mitsy at its option and expense may procure the right for you to continue to use the Platform, or replace or modify the Platform so as to make it non-infringing. If neither of these two options is reasonably practicable, Mitsy may terminate or suspend access to the Platform granted herein on one (1) month’s written notice and refund only the portion of the Service Plan charges paid for the remaining period of the then-current term, on a pro rata basis, and not all charges paid from Sign-up or commencement of the then-current service period. The foregoing states the entire liability of Mitsy with respect to infringement of any patents, copyrights, or other property rights by the Platform or any parts thereof.
XIII. Force Majeure
Mitsy shall be under no liability to you in respect of anything which, apart from this provision, may constitute breach of this TOS arising by reason of any matter outside the reasonable control of Mitsy including, but not limited to, acts of nature (including fire, flood, earthquake, storm, hurricane, or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout, any power interruptions or failures of, or interruptions to, any communications equipment, software, or hardware.
XIV. Enforceability and Severability
If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable.
- Integration, Modification, and Authority.
This TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this TOS. All waivers and modifications to this TOS must be in a writing signed by both parties that expressly by its terms modifies or waives a provision of this TOS, except as otherwise provided herein. The failure of Mitsy to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Mitsy in any respect whatsoever. The parties are and remain at all times independent contractors and not agents or employees of the other party.
You may not assign this TOS or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Mitsy. Subject to the foregoing, this TOS will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Mitsy may freely assign this agreement. Any attempted assignment by you in violation of this Section will be null and void.
All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by personal delivery, e-mail, or certified mail. If to Mitsy, such notices shall be sent to Mitsy’s business address or, if transmitted electronically, to TheTeam@mymitsy.com. If to you, such notices shall be sent to the owner email address provided by you at Sign-up. The parties may update their addresses for notice from time to time by notice to the other party in conformance with this Section.
XVIII. Choice of Law and Forum.
This TOS will be governed by and construed in accordance with the laws of the State of Georgia without reference to its conflicts of law principles and the courts at Fulton County, Georgia shall have exclusive jurisdiction over any dispute arising in connection with this TOS. Each party irrevocably hereby consents to the jurisdiction and venue of any such court in any such action or proceeding. No agency, partnership, or joint venture is created by this TOS.