TERMS OF SERVICE
In connection with the use of the Byos Platform (as defined below) you and/or your organization or corporation (the “Customer”) and Byos Inc. (the “Company”) hereby agree to the terms of service and conditions contained herein (collectively, the “Terms of Service”).
BY ACCEPTING THE TERMS OF SERVICE, EITHER BY: A) ACCEPTING THE TERMS OF SERVICE ONLINE, B) SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE TERMS OF SERVICE, OR C) USING, OR ACCESSING THE BYOS PLATFORM AFTER BEING MADE AWARE OF THESE TERMS OF SERVICE, THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ORDER FORM AND INCLUDING THE COMPANY’S PRIVACY POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN COMPANY AND THE CUSTOMER. IF, AFTER READING THE TERMS OF SERVICE, THE CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, OR ACCESS THE BYOS PLATFORM.
IF YOU ARE AN AGENT OR EMPLOYEE OF THE CUSTOMER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON CUSTOMER’S BEHALF AND TO BIND THE CUSTOMER, AND (II) THE CUSTOMER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1. Definitions
1.1. In this Agreement:
(a) “Agreement” means the Order Form and these Terms of Service.
(b) “Byos Management Console” means the Byos proprietary software interface that enables the Customer to deploy, provision and manage Devices on the Byos Platform which resides on a server operated by or on behalf of Company or Customer and which will be remotely accessible over the Internet by Customer and/or its Users.,
(c) “Byos Platform” means the Byos Management Console, Devices and Firmware, to which Customer is granted rights of access and use in accordance with this Agreement, including any ancillary services available in connection therewith, as such Byos Platform may be updated from time to time by Company in its sole discretion.
(d) “Customer” means the customer named in the applicable Order Form.
(e) “Customer Data” means the data submitted by or for Customer to the Byos Platform or collected and processed by or for Customer using the Byos Platform, including the data of Customer’s employees, contractors or customers.
(f) “Data Controller” shall mean the natural or legal person who alone or jointly with others determines the purposes and means of the Processing of Personal Information.
(g) “Data Processor” shall mean the natural or legal person who processes Personal Information on behalf of the Data Controller.
(h) “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation), the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the GDPR, applicable to the Processing of Personal Information under the Agreement.
(i) “Device” means a Byos proprietary Byos µGateway™ USB hardware device on which the Firmware is pre-loaded and running and which is connected to a communication network to enable the provision of the Byos Platform on the Customer’s (or its Users’) mobile computers and tablets as well as other networked devices.
(j) “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that Company generally makes available to subscribers to the Byos Platform, as the case may be.
(k) “Fees” mean Subscription Fees, and fees for Professional Services, as applicable.
(l) “Firmware” means the Byos proprietary software specifically designed to run on a Device and which is included with all Devices.
(m) “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Information and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
(n) “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
(o) “Order Form” means (i) an electronic form provided by Company on its website for ordering Devices, Subscriptions, Support Services, and/or Professional Services, or (ii) a written document executed by Company and Customer in respect to Customer’s purchases of Devices, Subscriptions, Support Services, and/or Professional Services from Company.
(p) “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
(q) “Professional Services” means the services provided by Company or an Company authorized services partner, pursuant to an Order Form and/or a Statement of Work, which services, the fees therefor and any other terms and conditions applicable thereto shall be described in the Order Form or Statement of Work.
(r) “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
(s) “Software” means the Company’s proprietary Byos Management Console™ software and Firmware in machine-readable object code format and other related software forming part of the Byos Platform which is made available by Company as the Byos Platform for use by Customer in accordance with the terms hereof.
(t) “Statement of Work” means a statement of work entered into between Company and Customer for the delivery of Professional Services.
(u) “Subscription” means the right granted by Company to Customer to access and use the Byos Platform in accordance with this Agreement, for the Subscription Term specified in the applicable Order Form.
(v) “Subscription Fee” means the fee payable by Customer for a Subscription as set out in the Order Form.
(w) “Subscription Term” means the period of time that Customer is authorized by Company to access and use the Byos Platform (including the Documentation).
(x) “Support Services” means the technical support services for the Byos Platform provided by Company as described in Section 6.
(y) “User” means (i) the Customer, if the Customer is an individual (a “Pro Tier” Customer), or (ii) an employee or contractor of Customer, if the Customer is a business entity (a “Business Tier” or “Enterprise Tier” Customer).
2. The Byos Platform
2.1 Right to Use the Byos Platform. Subject to the terms and conditions of this Agreement (including the applicable Order Form) and payment of the applicable Subscription Fees, Company hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right during the Subscription Term to (a) use the Devices to access and use (and to permit Users to access and use) the Byos Platform; and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Customer’s permitted use of the Byos Platform.
2.2 Reservation of Rights. Company and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Software, Byos Platform and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Software and subject to all of the provisions of this Agreement. Customer shall keep the Software and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, Company reserves all rights, title and interest in and to the Software and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
2.3 Restrictions. Customer shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Byos Management Console or any part of the Byos Management Console, including but not limited any component which comprises the Byos Management Console, but not including any output from the Byos Management Console; (b) knowingly interfere with service to any of Company’s customers, users, hosts or networks, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software, Byos Platform and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Byos Platform; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the Byos Management Console or Documentation in any form to any third party without the written consent of Company; (f) remove any proprietary notices, labels, or marks from the Byos Management Console or Documentation; (g) create any “links” to or “frame” or “mirror” of the Byos Management Console or any portion thereof; or (h) use the Byos Management Console to create, collect, transmit, store, use or process any Customer Data that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity).
2.4 Rights in Derivative Data. Customer acknowledges and agrees that the Byos Platform compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the Byos Platform and for the creation of new products. Customer hereby grants to Company a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to anonymize, de-identify and aggregate Customer Data and other such information and data and create anonymized and aggregated data records (“Anonymized Data”) and use such Anonymized Data to improve the Byos Platform, develop new products and services, to understand usage, and for any other business purpose. Anonymized Data is no longer associated with Customer or a User and as such is not Customer Data.
2.5 Employees and Others. Customer shall use commercially reasonable efforts to ensure, through contractual or other means, that any and all its Users comply with the terms and conditions of this Agreement, including but not limited, with obligations and restrictions stated in Section 2.3 above. Customer is and shall remain fully liable for any breach of this Agreement due to any actions or inactions, by its Users.
3. Devices
3.1 Sale of Devices. Company shall sell to Customer, and Customer shall purchase from Company, the Devices set forth in the Order Form in the quantities and at the price specified in the Order Form and upon the terms and conditions set forth in this Agreement.
3.2 Delivery. Company shall deliver the Devices to Customer’s address as identified on the Order Form (the “ Delivery Point”) using Company’s standard methods for packaging and shipping Devices. All Price are FCA (INCOTERMS 2010), Delivery Point. The Devices will be delivered within a reasonable time after the delivery date stated on the Order Form, subject to availability.
3.3 Title and Risk of Loss. Title and risk of loss passes to Customer upon delivery of the Devices at the Delivery Point. As collateral security for the payment of the purchase price of the Devices, Customer hereby grants to Company a security interest in and to all of the right, title and interest of Customer in, to and under the Devices, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase-money security interest under the Personal Property Security Act (Ontario).
4. Account Activation
4.1 Account. Customer is required to open an account with Company (an “Account”) in order to use the Byos Platform. Business Tier Customers and Enterprise Tier Customers will create a single administrative Account and will manage their Users’ accounts and Devices. A Pro Tier Customer will be required to create a User Account and as part of the Account set-up will be asked to provide Personal Information in order to create an Account. Customer shall ensure that such account activation information is accurate and complete and that such information remains current throughout the Subscription Term. Customer is fully responsible for all activity that occurs in Customer’s Account, including for any actions taken by its Users.
4.2 Passwords. Customer is responsible for keeping all Account passwords secure. Company will not be liable for any loss or damage caused by or arising from a failure by Customer or its Users to maintain the security of the Customer’s Account and password.
5. Professional Services
If agreed to in an Order Form and/or a Statement of Work, Company, or its authorized services partner, will provide Professional Services on a time and materials basis according to the terms and conditions in the Order Form and/or the applicable Statement of Work.
6. Support Services and Service Level Agreement
6.1 Pro Tier Support. Company shall provide the following support services to Pro Tier Customers: (a) email support is monitored and provided from 9:00 am to 5:00 pm, Monday to Friday (excluding statutory holidays in the Province of Ontario) and emails outside of these hours will be responded to on a reasonable efforts basis; and (b) Company will use commercially reasonable efforts to respond to support enquiries within two (2) business days. Customer will have access to Company’s technical support web site and may use the web site to submit service requests.
6.2 Business Tier Support. Company will provide the following Support Services to Business Tier Customers: (a) email and chat support is monitored and provided from 9:00 am to 5:00 pm, Monday to Friday (excluding statutory holidays in the Province of Ontario) and emails outside of these hours will be responded to on a reasonable efforts basis; and (b) Company will respond to support enquiries within eight (8) hours. Customer will have access to Company’s technical support web site and may use the web site to submit service requests.
6.3 Enterprise Tier Support. Company will provide the following Support Services to Enterprise Tier Customers: (a) dedicated telephone, email and chat support is monitored and provided from 9:00 am to 7:00 pm, Monday to Friday (excluding statutory holidays in the Province of Ontario) and emails outside of these hours will be responded to on a reasonable efforts basis; and (b) Company will respond to support enquiries within two (2) hours. Customer will have access to Company’s technical support web site and may use the web site to submit service requests.
6.4 Service Levels; Availability. Company will use commercially reasonable efforts to ensure that the Byos Platform will achieve Service Availability (as defined below) of at least 99.7% during each calendar month. “Service Availability” means the number of minutes in a month that the key components of the Byos Platform are operational as a percentage of the total number of minutes in such month, excluding downtime resulting from (a) scheduled maintenance, (b) events of force majeure as defined herein, (c) malicious attacks on the Byos Platform, (d) issues associated with the Customer’s network or equipment, or (e) inability to deliver the Byos Platform because of acts or omissions of Customer. Company reserves the right to take the Byos Platform offline for scheduled maintenance for which Customer has been provided reasonable notice and Company reserves the right to change its maintenance window upon prior notice to Customer.
7. Customer Data
7.1 Ownership. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Company does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data.
7.2 Customer Data Portability and Deletion. Upon request by Customer made during the term hereof or within 30 days after the effective date of termination of this Agreement, Company will make the Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Company will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited.
8. Protection of Personal Information
8.1 Customer is Data Controller. In relation to all Personal Information provided by or through Customer to Company under this Agreement, Customer will at all times remain the Data Controller and will be responsible for compliance with all applicable Data Protection Laws. To the extent that Company processes Personal Information in the course of providing the Byos Platform and related services under this Agreement, it will do so only as a Data Processor acting on behalf of the Customer (as Data Controller) and in accordance with the requirements of this Agreement.
8.2 Company’s Processing of Personal Information. Company shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. Company shall only Process Personal Information on behalf of and in accordance with Customer’s documented instructions and Data Protection Laws for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Customer’s Users or customers in their use of the Byos Platform; and (iii) Processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement.
8.3 Technical and Organizational Safeguards. In connection with the provision of the Byos Platform, Company will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Information. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Personal Information by Company personnel except (a) to provide the Byos Platform and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, or (c) as expressly permitted in writing by Customer. Company shall, in connection with the provision of the Byos Platform, comply with Data Protection Laws, as well as the Company’s Privacy Policy. Company shall ensure that its personnel engaged in the Processing of Personal Information are informed of the confidential nature of the Personal Information and have received appropriate training on their responsibilities and Company shall take commercially reasonable steps to ensure the reliability of any Company personnel engaged in the Processing of Personal Information.
8.4 Data Breach. Upon becoming aware of any unlawful access to any Personal Information, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident”), Company will promptly notify Customer of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of Customer, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide Customer with detailed information about the Security Incident. Company will take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Customer in doing so; and will provide prior notice to Customer of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without Customer’s prior written approval, not to be unreasonably withheld, conditioned or delayed. Company will work with and coordinate with Customer on any such notices in any event. Company will comply with this Section 8.4 at Company’s cost unless the Security Incident arose from Customer’s negligent or willful acts or Company’s compliance with Customer’s express written instructions.
8.5 Subcontracting. Company may engage third party subcontractors to assist in the provision of the Byos Platform under this Agreement. Customer authorizes Company to subcontract the Processing of Personal Information under this Agreement provided that (i) Company shall maintain a list of such subprocessors and will provide a copy of that list to Customer upon request; and (ii) all subprocessors will be contractually required by Company to abide by substantially the same obligations as Company under this Agreement to protect Personal Information, such that the data processing terms of the subcontract will be no less onerous than the data processing terms set out in this Agreement.
9. Customer Responsibilities
9.1 Users. Customer is responsible for all activities that occur in User accounts and for its and its Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquired Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software or the Byos Platform, and notify Company promptly of any such unauthorized access or use; and (c) use the Byos Platform only in accordance with the Documentation and applicable laws and government regulations.
9.2 Use Guidelines. Customer shall use the Byos Platform solely for its internal business purposes as contemplated by this Agreement and shall not interfere with or disrupt the integrity or performance of the Byos Platform or the data contained therein.
9.3 Processing of Personal Information. Customer’s instructions to Company for the Processing of Personal Information shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired Personal Information. Customer hereby represents and warrants to, and covenants with Company that Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Company to provide the Byos Platform, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Company and to or from all applicable third parties.
9.4 Equipment. Customer is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Customer to access and use the Byos Platform and for all expenses relating thereto. Customer agrees to access and use, and shall ensure that all Users access and use, the Byos Platform in accordance with any and all operating instructions or procedures that may be issued by Company from time to time.
9.5 Feedback. Customer may provide reasonable feedback to Company including, but not limited to, suitability, problem reports, suggestions and other information with respect to the Byos Platform (“Feedback”). Customer hereby grants to Company a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Software, Byos Platform, Documentation and any other Company products or services, or for any other purposes, any Feedback provided by Customer or its Users.
10. Fees and Payment
10.1 Fees. Customer shall pay all Fees specified in each Order Form. All Fees are quoted and payable in United States currency. Except as otherwise specified herein or in an Order Form, Fees are based on Devices and Subscriptions purchased and not actual usage, payment obligations are non-cancellable, Fees paid are non-refundable.
10.2 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees.
10.3 Invoicing and Payment. Fees for Subscriptions will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Company.
10.4 Overdue Charges. Any payment not received from Customer by the due date may accrue (except with respect to charges then subject to a reasonable and good faith dispute), at Company’s discretion, late charges at the rate of 1% of the outstanding balance per month (12.69% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
10.5 Suspension for Non-Payment. Company may immediately suspend Customer’s Subscription to use the Byos Platform if Customer fails to make any payment due in respect of the Byos Platform and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the rights hereunder by Company under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under the Agreement.
10.6 Payment Disputes. Company will not exercise its rights under Sections 10.4 or 10.5 hereof if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
11. Confidentiality Obligations
11.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Byos Platform and Documentation, Customer Data (which is the Confidential Information of the Customer), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
11.2 Confidentiality. Subject to Section 11.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Subscription Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement. Customer shall not disclose any performance, benchmarking, or feature-related information about the Byos Platform.
11.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
11.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
11.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
11.6 Return of Confidential Information. Upon Disclosing Party’s written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 11.6.
12. Limited Warranties and Disclaimers
12.1 Byos Management Console Warranties. Company hereby represents and warrants to Customer that:
(a) During the Subscription Term the Byos Management Console will perform materially in accordance with the Documentation therefor; and
(b) the Byos Management Console will not contain any Malicious Code.
12.2 Warranty Exclusions. The warranties set forth in Section 12.1 shall not apply if the Byos Management Console is used on or in conjunction with hardware or programs other than the unmodified version of the Devices which are used as described in the Documentation.
12.3 Device Warranty. Company warrants that for a period of one (1) year from the date of shipment, the Devices, when used in accordance with the Documentation, will operate substantially in accordance with the specifications and functional description set forth in the Documentation and will be free from material defects. In the event of a breach of the foregoing Device warranty, Company shall, in its sole discretion, either repair or replace such Device. The warranties and remedies herein shall not apply to any Device if the failure of the Device to perform in accordance with the warranty is caused by (i) accident, neglect, misuse, failure of electric power, failure of Customer to provide appropriate environmental conditions or causes other than ordinary use; or (ii) Customer repairs or alterations, or attempted repairs or alterations where such activity is not authorized by Company.
12.4 General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE BYOS PLATFORM AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE BYOS PLATFORM; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM COMPANY VIA THE BYOS PLATFORM. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE BYOS PLATFORM WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE BYOS PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. COMPANY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
12.5 Internet Connectivity Disclaimer. Company makes the Byos Platform available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Byos Platform over the Internet. Customer is responsible for and shall ensure that Customer’s computer equipment and an internet connection meets the minimum specifications published by Company in the Documentation and updated from time to time on the Company’s website, and Customer shall periodically update Customer’s computer equipment and/or Internet connection to meet such minimum specifications. Customer hereby acknowledges that the Byos Platform may be interrupted due to (a) website downtime for scheduled maintenance at Company’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond Company’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within Company’s control or network intrusions. Customer hereby acknowledges and agrees that Company shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases Company from any claims relating thereto.
13. Intellectual Property Infringement Indemnification
13.1 Indemnification by Company. Subject to this Agreement, Company shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Byos Platform and Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”); provided, that Customer (a) promptly gives written notice of the Infringement Claim to Company; (b) gives Company sole control of the defense and settlement of the Infringement Claim (provided that Company may not settle or defend any Infringement Claim unless it unconditionally releases Customer of all liability); and (c) provides to Company, at Company’s cost, all reasonable assistance and information.
13.2 Other Remedies. If (a) Company becomes aware of an actual or potential Infringement Claim, or (b) Customer provides Company with notice of an actual or potential Infringement Claim, Company may (or in the case of an injunction against Customer, shall), at Company’s sole option and determination: (i) procure for Customer the right to continue to use the Byos Platform; or (ii) replace or modify the Byos Platform with an equivalent or better platform, service or solution so that Customer’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by Company in its sole discretion, terminate the rights granted hereunder to the Customer to access and use the Byos Platform and refund to Customer that portion of any prepaid Subscription Fees that is applicable to the period following the termination of the Subscription pursuant to this Section 13.2, less any outstanding fees owed on such affected portion of the Byos Platform.
13.3 Exclusions. The indemnity in Section 13.1 does not extend to (1) any Infringement Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Byos Platform with other products, software or services not provided or approved by Company, if such infringement would have been avoided but for such combination; (2) any Infringement Claim in respect to any version of the Byos Platform other than the most current version; or (3) any use, distribution, sublicensing or exercise of any other right outside the scope of this Agreement.
13.4 Limitation. Notwithstanding any other provision of this Agreement, the liability of Company to Customer under this Section 13 shall not exceed: (a) for Pro Tier Customers, the amounts paid by such Customer to Company hereunder; and (b) for Business Tier and Enterprise Tier Customers, $250,000. In no event shall Company be responsible for any cost, expense or compromise incurred or made by Customer without Company’s prior written consent.
13.5 Sole Remedies. THIS SECTION 13 CONTAINS COMPANY’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIMS.
14. Indemnification by Customer
Customer shall defend, indemnify and hold Company harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Company by a third party (a) alleging that the Customer Data or Customer’s use of the Byos Platform in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any Data Protection Laws or a breach of this Agreement; or (c) caused by any negligent act or omission of Customer or its employees, contractors or agents (each a “Customer Indemnified Claim”); provided, that Company (a) promptly gives written notice of the Customer Indemnified Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Customer Indemnified Claim (provided that Customer may not settle or defend any Customer Indemnified Claim unless it unconditionally releases Company of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance and information.
15. Limitation of Liability
15.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 15.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
15.2 Limitation of Liability. SUBJECT TO SECTION 15.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
15.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS, SUBJECT TO THE LIMITATION CONTAINED IN SECTION 13.4 HEREOF, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.
15.4 Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of Company shall also apply to its officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries.
16. Insurance
During the term of this Agreement, Company shall continuously maintain insurance against such risks and in such amounts that could reasonably be expected to be carried by persons acting prudently and in a business similar to that of Company. Such insurance shall be issued and maintained with an insurance company having a rating of “A” or better by A.M. Best Company.
17. Term
17.1 Subscription Term. Subscriptions commence on the earlier of the start date specified in the relevant Order Form and continue for the Subscription Term specified therein unless terminated earlier as provide for in this Agreement. Unless otherwise agreed upon in the applicable Order Form, Subscriptions shall automatically renew for additional periods of one (1) year at the list price then in effect at the time of renewal unless Customer gives Company written notice of non-renewal at least sixty (60) days prior to the end of the applicable Subscription Term.
17.2 Termination. A party may terminate this Agreement or a Subscription for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
17.3 Refund or Payment upon Termination. If this Agreement or a Subscription is terminated by Customer in accordance with Section 17.2, Company will refund Customer any prepaid Subscription Fees covering the remainder of the term of the Subscription Term after the effective date of termination. If this Agreement is terminated by Company in accordance with Section 17.2, Customer will pay any unpaid Subscription Fees covering the remainder of the Subscription Term for any current Subscriptions. In no event will termination relieve Customer of its obligation to pay any Fees payable to Company for the period prior to the effective date of termination.
17.4 Suspension of Access to Byos Platform. In addition to any termination rights of Company pursuant to this Agreement, extraordinary circumstances may require Company to suspend or terminate (where appropriate), as determined in Company’s reasonable discretion, Customer’s access to and/or use of, or otherwise modify, the Byos Platform in order to: (a) prevent material damages to, or material degradation of the integrity of, Company’s or its provider’s Internet network; or (b) comply with any law, regulation, court order, or other governmental order. Company will notify Customer of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, Company will limit such suspension to that which is minimally required and will promptly restore Customer’s access to the Byos Platform as soon as the event giving rise to the suspension has been addressed (including by Customer agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this Agreement by Customer: (i) all Subscription Fees related to the Subscription, or other suspended services shall be waived for the duration of the suspension and any such waived Subscription Fees which have been pre-paid shall be refunded to Customer; and (ii) in the event of a termination in connection with this Section 17.4, Customer shall receive a refund of any and all prepaid Subscription Fees applicable to the remainder of the then-current Subscription Term.
18. Export Restrictions; US Government Licenses
Customer hereby represents and warrants that Customer is not located in, under the control of, and is not a national or resident of, any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer also represents and warrants that Customer is not an individual to whom the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer shall comply with the export laws and regulations of Canada and the United States that are applicable to the Software and related information and Customer shall comply with any local laws and/or regulations in Customer’s jurisdiction that may impact Customer’s right to export, import, or use the Software or related information, and Customer represents and warrants that Customer has complied with any such applicable laws and/or regulations. Notwithstanding any agreement with a third-party or any provision of law, regulation or policy, if Customer is an agency of the government of the United States of America, then Customer’s rights in respect of the Software and Documentation shall not exceed the rights provided under this Agreement, unless expressly agreed upon by Company in a written agreement between Customer and Company and signed by a Chief Operating Officer or Chief Executive Officer of Company.
19. Assignment
Customer may not assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of Company. Notwithstanding the foregoing, Company may assign this Agreement in its entirety (including all Order Forms and Statements of Work), without consent of the Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
20. General
20.1 Force Majeure. Neither Company nor Customer shall be deemed to be in default of any provision of this Agreement (other than Customer’s obligation to pay amounts due to Company hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, civil disturbance, epidemics or pandemics, strikes, fires or other catastrophes.
20.2 Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
20.3 Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
20.4 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.
20.5 Entire Agreement. This Agreement is the entire agreement between Customer and Company in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with Company or a distributor of Company.
20.6 Purchase Orders etc. The terms and conditions of this Agreement, any Order Forms and Statements of Work shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Byos Platform and Documentation and the right to access and use the Byos Platform and Documentation shall be deemed to be pursuant to the terms and conditions of this Agreement, unless Customer has executed a written license agreement with Company or a distributor of Company, in which case the Byos Platform and Documentation shall be deemed to have been licensed pursuant to the terms and conditions of such written license agreement.
20.7 Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
20.8 Amendments. No amendment to any portion of this Agreement shall be binding upon the parties unless in writing signed by both parties. Notwithstanding the foregoing, (a) Company is entitled to make non-material changes to the Terms of Service without any notice to the Customer; and (b) except to the extent that Company is expressly prohibited by applicable law, Company further reserves the right to, within its sole discretion, make changes to this Agreement on a prospective basis, including to reflect changes in or required by law (including, changes to ensure the enforceability of this Agreement) or changes in business practices, by providing the Customer with reasonable notice of the change either electronically by posting notice of the change at legal [at] byos [dot] io and Customer should regularly review that site for changes. If Customer continues to use the Byos Platform more than sixty (60) days after notice of the change has been given, then Customer shall be deemed to have accepted those changes. If Customer has a concern about the change(s) please contact legal [at] byos [dot] io within sixty (60) days after notice of the change(s) has been given to inquire as to Customer’s options.
20.9 Language of Agreement. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.
Last update: July 20, 2020