BYOND TERMS OF SERVICE
[Last Revised: October 22, 2017]
Welcome to Byond’s Terms of Service!
Below we have listed important legal terms that apply to anyone who visits our website or uses our services. These terms are necessary in order to protect both you and us, and to make our services possible and more enjoyable for everyone.
1.1. Our Purpose
Our services are designed to allow users to easily create and publish immersive and interactive applications in VR, AR or 360 (each, an “Experience”). We provide our users with easy-to-use web tools (collectively, the “Publisher”) which allow them to create and publish sets of Experiences, while setting their own interactive rules and virtual zones, as well as tools for managing and integrating their content together with content and features offered by us (“Media Manager”) into their Experiences’ elements.
1.2. Legal Agreement
The Byond Terms constitute a binding and enforceable legal contract between ByondVR Ltd. (“Byond”, “us” or “we”) and you – so please read them carefully.
You may visit and/or use the Services only if you fully agree to the Byond Terms – and by using and/or registering to any of the Services, you signify and affirm your informed consent to these Terms of Service and any other Byond Terms applicable to your use of any Services.
If you do not read, fully understand and agree to the Byond Terms, you must immediately leave the Byond Website and avoid or discontinue all use of the Services.
1.3. User Account
In order to access and use certain sections and features of the Services, you must first register and create an account with Byond (“User Account”) Within the User Account, you may grant additional access permissions for your team members.
If anyone other than yourself accesses your User Account and/or any of your Experiences’ assets, they may perform any actions available to you (, make changes to your Experience(s), and accept any legal terms available therein, make various representations and warranties and more – and all such activities will be deemed to have occurred on your behalf and in your name.
Therefore, we strongly encourage you to keep the log-in credentials of your User Account confidential, and allow such access only to people you trust – as you will be solely and fully responsible for all activities that occur under your User Account (including for any representations, warranties and undertakings made therein), whether or not specifically authorized by you, and for any damages, expenses or losses that may result from such activities.
You must provide accurate and complete information when registering your User Account and using the Services, to which you are the sole and exclusive rightsholder. We strongly encourage you to provide your own (or your company’s) contact and billing details, including your valid e-mail address, as we may use them to identify, validate and determine the actual and true owner of the User Account and/or User Content (as defined below) submitted to us.
We reserve the right to determine and/or grant ownership to a User Account based on our reasonable judgment, whether or not an independent investigation has been conducted by us. However, if we cannot make such determination (as we may deem in our sole discretion), we reserve the right to avoid doing so, without liability to you or to any other party.
2. User Obligations
2.1. You represent and warrant that:
1) you are at least eighteen (18) years of age, or of the legal age of majority in your jurisdiction, and possess the legal authority, right and freedom to enter into the Byond Terms and to form a binding agreement, for yourself or on behalf of the person or entity committed by you to the Byond Terms;
2) you understand that Byond does not provide any legal advice or any recommendation with respect to any laws or requirements applicable to your use or any of your End Users (as defined below), or your compliance therewith;
3) You are solely responsible for your applications, Experiences, products, services and related activities, and any promotions and related Content contained or referred to in your Experience, and to comply with any laws applicable thereto. You acknowledge that Byond is merely providing the platform for you to create and enhance your Experiences. We are not involved in your relationship and/or any transaction with any of your actual or potential End Users;
4) you own all rights in and to any content entered or uploaded by you to the Services (“User Content”), including any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials (“Content”), or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such User Content;
5) the User Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to possess, post, transmit or display in the country in which you or those who visit or use your Experiences (“End Users”) reside, or for Byond and/or your End Users to use or possess in connection with the Services;
6) you have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image, voice or likeness of any person, entity or property which is part of the User Content, and you will adhere to all laws applicable thereto.
2.2. You undertake and agree to:
1) fully comply with all applicable laws and any other contractual terms which govern your use of the Services (and any related interaction or transaction), including those specific laws applicable to you or your End Users in any of your geographical locations;
2) be solely responsible and liable with respect to any of the uses of the Services which occur under your User Account and/or Experience(s), and for any of your User Content (including for any consequences of using or publishing such User Content on or with respect to the Services);
3) regularly and independently save and backup any of your User Content and the information that is being processed by you regarding your Experiences, including with respect to End Users and any applications and/or Third Party Services used by you;
4) receive from time to time promotional messages and materials from Byond or its partners, by mail, e-mail, text messages or any other contact form you may provide us with (including your phone number for calls or text messages). If you wish not to receive such promotional materials or notices – please notify us at any time;
5) unless you notify us otherwise in writing, allow Byond to use in perpetuity, worldwide and free of charge, any version of your Experience (or any part thereof) for any of Byond’s marketing and promotional activities, online and/or offline, and modify it as reasonably required for such purposes, and you waive any claims against Byond or anyone on its behalf relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide that you may have in or to your Experience with respect to such limited permitted uses;
6) Byond’s sole discretion as to the means, manner, and method for performing the Services, including those regarding the hosting, transmission, publication and/or display of the Publisher, Media Manager, any Experiences and/or Content (including the inclusion and presentation of any watermarks or advertisements by Byond or its affiliates, or any other commercial or promotional content with respect thereto).
2.3. You agree and undertake not to:
1) copy, modify, create derivative works of, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble the Byond Website, the Services (or any part thereof), any Content offered by Byond or Third Party Services for use and display within Experiences (“Licensed Content”) and/or any part thereof in any way, or publicly display, perform, transmit or distribute any of the foregoing without Byond’s prior written and specific consent and/or as expressly permitted under the Byond Terms;
2) submit, transmit or display any User Content, or use Licensed Content in a context, which may be deemed as defamatory, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of Byond or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval;
3) publish and/or make any use of the Services or Licensed Content on any website, application, media, network or system other than those provided by Byond and solely during the term of your subscription with Byond, and/or frame, “deep link”, “page scrape”, mirror and/or create a browser or border environment around any of the Services, Licensed Content and/or Experience (or any part thereof), except as expressly permitted by Byond, in advance and in writing;
4) use any “robot”, “spider” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Services (or Byond’s data), or in any way reproduce or circumvent the navigational structure or presentation of any of the Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the Services;
5) act in a manner which might be perceived as damaging to Byond’s reputation and goodwill or which may bring Byond into disrepute or harm;
6) impersonate any person or entity or provide false information on the Services and/or your Experience, whether directly or indirectly, or otherwise perform any manipulation in order to disguise your identity or the origin of any message or transmittal you send to Byond and/or any End Users;
7) falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that Byond or any third party endorses you, your Experience, your business, your services, or any statement you make;
8) reverse look-up, trace, or seek to trace another User of our Services, or otherwise interfere with or violate any other User’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the Services and/or Experience without their express and informed consent;
9) disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the Services, any User’s Experience, the account of another User(s), or any other systems or networks connected to the Services, by hacking, password mining, phishing, or other illegitimate or prohibited means;
10) probe, scan, or test the vulnerability of the Services or any network connected to the Services;
11) purchase search engine or other pay per click keywords, or domain names that use Byond or any of its trademarks and/or variations and misspellings thereof;
12) upload to the Services or otherwise use them to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
13) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or Byond’s systems or networks connected to the Services, or otherwise interfere with or disrupt the operation of any of the Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;
14) use any of the Services and/or your Experience(s) in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct, or otherwise engage in unethical marketing or advertising;
15) sell, license, or exploit for any commercial purposes any use of or access to the Licensed Content and/or Services, or use them in any way without having a current and relevant subscription to the Services, except as expressly permitted by the Byond Terms;
16) remove or alter any copyright notices, watermarks, restrictions and signs indicating proprietary rights of Byond or any of our licensors, including copyright mark [©], Creative Commons [(cc)] indicators, or trademarks [® or TM] contained in or accompanying the Services and/or Licensed Content; or
17) violate, attempt to violate, or otherwise fail to comply with any of the Byond Terms or any laws or requirements applicable to your use of the Services.
You acknowledge and agree that your failure to abide by any of the foregoing or any misrepresentation made by you herein may result in the immediate termination of your User Account and/or any Services provided to you – with or without further notice to you, and without any refund of amounts paid on account of any such Services.
3. Content and Ownership
3.1. Your Intellectual Property
As between Byond and you, you shall own all intellectual property pertaining to your User Content, including to any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials created by you. You hereby grant Byond a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable right and license to use your User Content (in whole or in part) worldwide in order to provide you with the Services, and as further specified in Section 2.2(5)5) above.
3.2. Byond’s Intellectual Property
All rights, title and interest in and to the Services, including any and all copyrightable materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law (including any artwork, graphics, images, literary work, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, the “look and feel” of the Services, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers, whether or not registered and/or capable of being registered (collectively, “Intellectual Property”), and any derivations thereof, are owned by and/or licensed to Byond.
Subject to your full compliance with the Byond Terms and timely payment of all applicable Fees, Byond hereby grants you, upon creating your User Account, for the duration of your subscription and/or for as long as Byond wishes to provide you with the Services, a non-exclusive, non-transferable, non- sublicensable, fully revocable, limited license to use the Services and Licensed Content, for the purpose of creating and publishing your Experience(s) to End Users, only as expressly permitted under the Byond Terms.
The Byond Terms do not convey any right or interest in or to Byond’s Intellectual Property (or any part thereof), except only for the limited license expressly granted above. Nothing in the Byond Terms constitutes an assignment or waiver of Byond’s Intellectual Property rights under any law.
3.3. Feedback and Suggestions
If you provide us with any suggestions, comments or other feedback relating to the Services (whether existing, suggested or contemplated), which is or may be subject to any Intellectual Property rights (“Feedback”), such Feedback shall be exclusively owned by Byond. By providing such Feedback to Byond, you (1) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (2) irrevocably assign to Byond any right, title and interest you may have in such Feedback; (3) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Feedback.
4. Personal Information
5. Service Fees
5.1. Paid Services
The use of certain Services is subject to payment of particular fees, as determined by Byond in its sole discretion (“Paid Services” and “Fee(s)”, respectively). Byond will note the effective Fees for such Paid Services. If you wish to receive or use such Paid Services, you are required to pay all applicable Fees in advance.
Byond reserves the right to change its Fees at any time, and will notify you of such change if we believe it may affect your existing subscriptions.
If you received a discount or other promotional offer, Byond shall have the right to automatically and without notice renew your subscription to such Byond Service(s) at the full applicable Fee.
All Fees shall be deemed to be in U.S. Dollars, except as specifically stated otherwise in writing by Byond.
As part of registering or submitting information to receive Paid Services, you also authorize Byond (either directly or through its current or future affiliates, subsidiaries or other third parties) to request and collect payment (or otherwise charge, refund or take any other billing actions) from your payment provider or designated banking account, and to make any inquiries Byond or its affiliates may consider necessary to validate your designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from your payment, credit card or banking account provider (e.g., updated expiry date or card number as may be provided to us by your credit card company).
To the extent permitted by law (and unless specified otherwise by Byond in writing), all Fees are stated exclusive of all taxes (including value added tax, sales tax, goods and services tax, etc.), levies or duties imposed by taxing authorities (“Taxes”), and you shall be responsible for payment of all applicable Taxes relating to your use of the Services, or to any payments or purchases made by you. If Byond is obligated to collect or pay Taxes for the Fees payable by you, and whether or not such Taxes were added and collected from you for previous transactions, such Taxes may be added to the payment of any outstanding Fees and will be reflected in the Invoice for such transaction.
5.4. Subscription Renewals
In order to ensure that you do not experience any interruption or loss of services due to the lapse of any particular subscription period, the Services operate with automatic renewal, on a recurring-fees basis (except where explicitly stated otherwise by Byond in writing). Accordingly, where applicable, Byond will attempt to automatically renew the applicable Byond Service(s) for a renewal period equal in time to the original subscription period for such Service, and automatically charge you the applicable Fees using the payment method you have on file with Byond.
For example, if the original subscription period for a Service is one month, each of its renewal periods (where applicable) will be for one month. Therefore, unless you cancel the applicable Service(s), Byond will automatically renew such Service when it comes up for renewal, and charge you the applicable recurring Fees. In order to avoid any interruptions or loss of services due to failure to process renewal charges prior to the expiration of the subscription period then in effect, we reserve our right (but shall not be obligated) to charge for the upcoming renewal period up to two (2) weeks before such renewal period actually commences. In the event of failure to collect the Fees owed by you, we may in our sole discretion (but shall not be obligated to) retry to collect on a later time, and/or suspend or cancel your User Account, without further notice.
For information about cancelling your Paid Services, please see Section 6.1 below.
Notwithstanding anything to the contrary in the foregoing, you shall be solely responsible to verify and ensure the successful renewal of the Services you use (whether or not such Services are subject to automatic subscription renewals). Accordingly, you shall be solely responsible with respect to any suspension of any Services previously purchased by you, including due to a cancellation, failure to charge the applicable recurring Fees, or due to any Services not being subject to automatic subscription renewals. You acknowledge and agree that you shall not have any claims against Byond in relation to the discontinuation of any Services or Third Party Services, for whatever reason.
If, at any time, you contact your bank or credit card company and decline, chargeback or otherwise reject the charge of any payable Fees (“Chargeback”), this act will be considered a breach of your payment obligations hereunder, and your User Account may be blocked and your use of the Services may be automatically terminated. Moreover, any data contained in your User Account, including any Content, Experiences, End User data and Third Party Services may be subject to cancellation and Capacity Loss (as defined in Section 6.3 below).
If you have any questions or concerns regarding a payment made to Byond, we encourage you to first contact our Customer Support before filing a Chargeback or reversal of payment, in order to prevent the Services from being cancelled and your User Account being blocked, and to avoid the filing of an unwarranted or erroneous Chargeback, which may result in your being liable for its applicable costs and fees (including handling and processing charges and fees incurred by the payment processor), in addition to re-payment of all the Fees applicable to the Services purchased (and charged-back) by you.
We reserve our right to dispute any Chargeback received, including by providing the relevant credit card company or financial institution with any information and documentation proving that the User responsible for such Chargeback did in fact authorize the transaction and make use of the services rendered thereafter.
6. Service Cancellation
6.1. Cancellation by User
You may discontinue to use and request to cancel your User Account and/or any Services at any time, in accordance with the instructions available on the Services. The effective date and time for such cancellation shall be the date and time on which you have completed the cancellation process on the Services, and the effective date for cancellation of Paid Services shall be at the end of such Paid Services’ subscription period.
Notwithstanding anything to the contrary in the foregoing, with respect to automatically-renewed subscriptions to Paid Services, such subscription will be discontinued only upon the expiration of the respective period for which you have already made payment. Please note that as the cancellation process may take a few days, in order to avoid the next automatic renewal and respective charge the cancellation request should be made at least seven (7) days prior to the expiration of the then-current service period.
6.2. Cancellation by Byond
Failure to comply with any of the Byond Terms and/or to pay any due Fee shall entitle Byond to suspend (until full payment is made) or cancel your User Account and remove any Content, data or Experiences stored therein, as well as the provision of any related Services (e.g., Paid Services) or Third Party Services to you.
6.3. Loss of Data, Content and Capacity
If your User Account or any Services or Third Party Services related to your User Account are cancelled (whether at your request or at Byond’s discretion), it may cause or result in the loss of certain content, features, or capacity of your User Account, including any Experiences, User Content, End User information and content or other usage data retained therein (“Capacity Loss”). Byond shall not be liable in any way for such Capacity Loss, or for saving a backup of your User Account, Experiences, User Content or End User data. Please also note that additional Fees may apply to re-activation of a User Account and/or any Services following their cancellation, as determined by Byond in its sole discretion.
7. Third Party Services
The Services may enable you to engage and procure certain third party services and tools for enhancing your Experience and your overall user experience, including third party applications, widgets and Licensed Content (collectively, “Third Party Services”).
You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you (bundled with certain Services, offered separately by Byond or otherwise offered anywhere on the Services), Byond merely acts as an intermediary platform between you and such Third Party Services, and does not in any way endorse any such Third Party Services, or shall be in any way responsible or liable with respect thereto. Byond will not be a party to, or in any way be responsible for monitoring, any interaction or transaction between you and any Third party Services.
Any and all use of such Third Party Services shall be done solely at your own risk and responsibility, and may be subject to such legal terms which govern such Third Party Services, which you are encouraged to review before engaging with them.
While we hope to avoid such instances, Byond may, at any time and at its sole discretion, suspend, disable access to or remove from your User Account, Experience(s) and/or the Services, any Third Party Services – whether or not incorporated with or made part of your User Account and/or Experience(s) at such time – without any liability to you or to any End Users.
You acknowledge and agree that in connection with your use of the Services you may receive or gain access to the confidential, proprietary, or sensitive information of Byond and/or its licensors (“Confidential Information”). Accordingly, you agree to secure and protect the confidentiality of such Confidential Information, using at least as great a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You also acknowledge and agree that any disclosure or unauthorized use of such Confidential Information may be detrimental to Byond and its business and goodwill. You therefore shall not, nor permit any third party to, use, transfer, sell, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized under the Byond Terms. All Confidential Information of Byond shall remain the exclusive property of Byond. These restrictions do not apply to Confidential Information which you (1) are required to disclose by law or regulation, or in response to a valid order of a court or other governmental body, only to the extent and for the purposes of such law, regulation or order, and only if you first notify Byond of such law, regulation or order, and permit Byond to seek an appropriate protective order or move to quash or limit such order; or (2) disclose with written permission of Byond, in compliance with any terms or conditions set by Byond regarding such disclosure.
9. Misconduct and Copyrights
9.1. Misconduct and Abuse
When using the Services, you may be exposed to Experiences, User Content or Third Party Services from a variety of sources, which may be inaccurate, offensive, objectionable or illegal. You hereby waive any legal or equitable rights or remedies you have or may have against Byond with respect thereto.
If you believe a User or any Third Party Services acted inappropriately or otherwise misused any of the Services, please immediately report such User and/or Third Party Service to us by e-mailing [email protected] You agree that your report shall not impose any responsibility or liability on Byond, and that Byond may consider such report and act upon it, refrain from taking any such action or require additional information or documents before doing so, at its sole discretion.
Byond acts in accordance with its interpretation of the Digital Millennium Copyright Act (“DMCA”). If you believe that your work has been copied or was otherwise used on our Services in a way that constitutes copyright infringement, you may notify us of such infringement by [email protected], or otherwise provide the following information in writing to our designated Copyright Agent: (1) the contact details of the person authorized to act on behalf of the owner of the copyright; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit Byond to locate the material (including URL address or screenshots); (4) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (5) a statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.
Byond’s Copyright Agent can be reached at the following address:
4590 MacArthur Blvd, Newport Beach, CA 92660 suite 500[US Address/POB]
Or E-mail: [email protected]
In the event that Byond receives notice regarding a copyright infringement related to your User Account, User Content or Experience, it may cancel your User Account, take your Experience down or remove any User Content in its sole discretion, with or without prior notice to you. In such case, you may file a proper counter-notice in accordance with Section 512 of the DMCA, in which you must include: (1) your full name, address, phone number and physical or electronic signature; (2) identification of the material and its location before removal; (3) a statement under penalty of perjury that the material was removed by mistake or misidentification; (4) your consent to an appropriate judicial body; and (5) any other information required under the relevant provisions of the DMCA. Any notices filed pursuant to this Section 8 may be deemed accepted, applicable and compliant with the DMCA, or not, at Byond’s sole reasonable discretion. Byond reserves the right to notify the person or entity providing the infringement notice of such counter-notice and provide any details included therein.
10.Disclaimer of Warranties
We provide the Services on an “As Is”, “with all faults” and “As Available” basis, without any warranties of any kind, including any implied warranties or conditions of merchantability, fitness for a particular purpose, workmanlike effort, non-infringement, or any other warranty – all to the fullest extent permitted by law. We specifically do not represent or warrant that the Services (or any part, feature or Content thereof) are complete, accurate, of any certain quality, reliable or secure in any way, suitable for or compatible with any of your (or your End Users’) contemplated activities, devices, operating systems, browsers, software or tools (or that they will remain as such at any time), or comply with any laws applicable to you or your End Users (including in any jurisdiction in which you operate), or that their operation will be free of any viruses, bugs or other harmful components or program limitations. Moreover, we do not endorse any entity, product or service (including any Third Party Services) mentioned on or made available via the Services – so please be sure to verify those before using or otherwise engaging them.
Byond may, at its sole discretion (however it shall have no obligation to do so), screen, monitor and/or edit any Experience and/or User Content, at any time and for any reason, with or without notice.
Notwithstanding anything to the contrary in the foregoing, in no circumstances may Byond be considered as a “publisher” of any Experiences or User Content, does not in any way endorse any Experiences or User Content, and assumes no liability for any Experiences or User Content uploaded, posted, published and/or made available by any User or any other party on and/or through the Services, for any use by any party, or for any loss, deletion or damage thereto or thereof or any loss, damage, cost or expense that you or others may suffer or incur as a result of or in connection with publishing, accessing and/or relying on any Experiences or User Content. Furthermore, Byond shall not be liable for any mistakes, defamation, libel, falsehoods, obscenity, pornography, incitement and/or any other unlawful and/or infringing Experiences or User Content you or any other party may encounter.
You acknowledge that there are risks in using the Services and/or connecting and/or dealing with any Third Party Services through or in connection with Services, and that Byond cannot and does not guarantee any specific outcomes from such use and/or interactions, and you hereby assume all such risks, liabilities and/or harm of any kind arising in connection with and/or resulting from such interactions. Such risks may include, among others, misrepresentation of information about and/or by Third Party Services and/or Licensed Content, breach of warranty and/or contract, violation of rights, and any consequent claims.
Byond does not recommend the use of the Services for hosting of personal content and shall not bear any security or integrity obligations or risks regarding breach or damage to any such content.
Please note that the Services are currently offered in their BETA version, and undergoing BETA testing. You understand and agree that the Services may still contain software bugs, suffer disruptions and not operate as intended or designated. Your use of the Services at this BETA stage signifies your agreement to participate in such Services’ BETA testing.
11. Limitation of Liability
To the fullest extent permitted by law in each applicable jurisdiction, Byond, its officers, directors, shareholders, employees, affiliates and/or agents shall not be liable to you for any direct, indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, including any damages resulting from (1) errors, mistakes, or inaccuracies of or in any content; (2) any personal injury or property damage related to your use of the Services; (3) any unauthorized access to or use of our servers and/or any personal information and/or other information stored therein; (4) any interruption or cessation of transmission to or from the Services; (5) the use or display of any Experiences, Content or User Content published, transmitted, or otherwise made available via the Services; and/or (6) events beyond the reasonable control of Byond, including any internet or server failures, equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, earthquakes, explosions, acts of God, war, terrorism, governmental actions, orders of courts, agencies or tribunals or non-performance of third parties.
You acknowledge and agree that these limitations of liability are agreed allocations of risk constituting in part the consideration for Byond’s services to you, and such limitations will apply even if Byond has been advised of the possibility of such liabilities.
You agree to defend, indemnify and hold harmless Byond, its officers, directors, shareholders, employees, affiliates and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including attorneys’ fees) arising from: (1) your violation of any term of these Terms of Service or any other Byond Terms; (2) your violation of any third party right, including any copyright, property, or privacy right, resulting from your Experience or User Content and/or your use of the Services; and/or (3) any other type of claim that your Experience and/or User Content caused damage to a third party.
13.1. Changes & Updates
Byond may change, suspend or terminate any of the Services (or any features thereof, or prices applicable thereto), and/or change any of the Byond Terms – at any time and in any manner. Such changes may become effective upon notice to you (and in any event, not in a retroactive manner – except as required otherwise by law). If any such changes involve the payment of additional Fees, we will provide you with a notice of such Fees prior to enabling such specific changes. If you fail or refuse to pay such Fees, we may (at our sole discretion) cancel your User Account (as further explained in Section 6 above), continue to support your then-current Services without enabling such changes, or provide you with alternative Services.
13.2. Governing Law & Jurisdiction
The Byond Terms, the rights and remedies provided hereunder, and any and all claims and disputes related hereto and/or to the Services, their interpretation, or the breach, termination or validity thereof, the relationships which result from or pursuant to the Byond Terms, or any related transaction or purchase, shall be governed by, construed under and enforced in all respects solely and exclusively in accordance with the internal substantive laws of the State of Israel, without respect to its conflict of laws principles.
Any and all such claims and disputes shall be brought in, and you hereby consent to them being decided exclusively by, a court of competent jurisdiction located in Tel Aviv, Israel. The application of the United Nations Convention of Contracts for the International Sale of Goods is hereby expressly excluded.
We may provide you with notices in any of the following methods: (1) via the Services, including by a banner or pop-up within the Byond Website, User Account or elsewhere; (2) by e-mail, sent to the e-mail address you provided us; and/or (3) through any other means, including any phone number or physical address you provided us. Byond’s notice to you will be deemed received and effective within twenty four (24) hours after it was published or sent through any of the foregoing methods, unless otherwise indicated in the notice.
The Byond Terms, and your use of the Services, do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between Byond and you.
13.5. Entire Agreement
These Terms of Service, together with the Byond Terms and any other legal or fee notices provided to you by Byond, shall constitute the entire agreement between you and Byond concerning the subject matter hereof or thereof, and supersede any and all prior or contemporaneous agreements, understandings, promises, conditions, negotiations, covenants or representations, whether written or oral, between Byond and you, including those made by or between any of our respective representatives, with respect to any of the Services. You further agree that you are not relying upon any promise, inducement, representation, statement, disclosure or duty of disclosure of Byond in entering into any of the Byond Terms.
Byond may assign its rights and/or obligations hereunder and/or transfer ownership rights and title in the Services and/or Licensed Content to a third party, without prior notice to you and without your consent. You may not assign or transfer any of your rights and obligations hereunder without the prior written consent of Byond. Any attempted or actual assignment thereof without Byond’s prior explicit and written consent will be null and void. In any event, an assignment or transfer pursuant to this Section 13.613.6 shall not in itself grant either Byond or you the right to cancel any Services or Third Party Services then in effect.
13.7. Severability & Waivers
If any provision of the Byond Terms is deemed by a court of competent jurisdiction to be invalid, unlawful, void, or for any reason unenforceable, then such provision shall be deemed severable and will not affect the validity and enforceability of the remaining provisions. No Waiver of any breach or default of any of the Byond Terms shall be deemed to be a waiver of any preceding or subsequent breach or default.
Any heading, caption or section title contained herein is provided only for convenience, and in no way defines or explains any section or provision hereof, or legally binds any of us in any way.
These Terms of Service were written in English, and may have been translated into other languages for your convenience. If a translated (non-English) version of these Terms of Service conflicts in any way with their English version available at [link to EN TOS], the provisions of the English version shall prevail.
13.9. Customer Service Contact
To get in touch with our Customer Service – please send an email message to: [email protected]