CLIENT TERMS OF SERVICE

Thank you for placing an order with Byga, Inc. (“Byga”). By placing an order for any Byga service (“Service” or “Services”), you agree to all the terms and conditions of this Client Agreement (“Agreement”). Further, if you are a representative of either (i) yourself or (ii) a different legal entity than yourself, you agree that for the purposes of this Agreement, you are a ‘Client’, as defined in this Agreement. In addition to representing a Client, you may also be authorized by the Client to use Byga Services (“Authorized User”), in which case the User Terms of Service (the “TOS”) at https://byga.net/tos govern your access and use of the Services. Byga reserves the right to modify this Agreement from time to time, and by Client’s continued usage of the Service agree to accept such modifications. This Agreement includes any Orders, as defined in this Agreement, as well as any policies or exhibits linked to or referenced herein.

This Agreement is effective as of January 1, 2023.

To view the previous version, please visit  https://byga.net/client-tos-previous.

A.     DEFINITIONS.

1. “Confidential Information” means code, inventions, know-how, product plans, inventions, marketing plans, technical and financial information exchanged under this Agreement that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
2. “Client” means an entity, whether a legal entity or otherwise, where such entity is a team, organization, league or otherwise requiring and paying for Byga Services.
3. “Client Applications” means the Client owned-and-operated software application, developed or licensed by Client.
4. “Client Data” means any information sent to Byga via Byga Technology.
5. “Client Mobile Applications” means the Client owned-and-operated software application, developed or licensed by Client distributed for mobile applications.
6. “Client Sites” means the Client owned-and-operated web domains and subdomains.
7. “Client Services” includes Client Applications, Client Mobile Applications and Client Sites.
8. “Documentation” means exclusively (a) Byga’s technical documentation provided with the Byga Service, and (b) on the Byga site at https://byga.net/support. Such documentation does not imply any further warranty or representation as to suitability of use, workmanship or functionality beyond that as described in this Agreement.
9. “Byga Code” means the code provided by Byga to Client for use in connection with the Byga Service, which may include Byga’s APIs, Ruby GEM or other similar code.
10. “Byga Service” means the proprietary software-as-a-service offering of Byga, including any related Byga Code and Documentation.
11. “Byga Technology” means the Byga Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Byga Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
12. “Order” means any Byga ordering documentation, online sign-up or subscription that references the use of any Byga Service.
13. “Regulated Data” means: (a) any personally identifiable information; (b) any patient, medical or other protected or regulated health information; (c) any other information subject to regulation or protection under specific laws or regulations; (d) any payment information (eg. sixteen (16) digit PAN, etc) governed by any payment industry standard.
14. “Term” means the period of time under which Client has agreed to use and, as applicable, pay for the applicable Byga Service, as specified on Client’s Order, and any subsequent renewal term (if any).

B. OVERVIEW OF THE BYGA PLATFORM.

Byga provides a Service to Clients, which collects, stores, queries and manipulates data as so allowed and permitted via exposed Byga Service functionality. As a prerequisite to any such activity, a Client would (a) either download a Byga library or (b) call a Byga public API. Using (a) editing and configuration tools at the Byga console, or (b) via a Byga public API, a Client may access, configure and use any such Byga Service as permitted or allowed, acknowledging such permission may be dependent on a specific Order option, commitment to pay or actual payment. The applicable Documentation provides additional details about each Byga Service.

C.     ACCOUNT REGISTRATION AND USE.

Client will need to register for a Byga account in order to place Orders or to access or receive a Byga Service. Account information must be accurate, current, and complete, and will be governed by Byga’s Privacy Policy (currently available at   https://byga.net/privacy). Client agrees to keep this information up-to-date so that Byga may send notices, statements, and other information by email or through Client’s account. Client must ensure that any Authorized User IDs and passwords for the Byga Service are kept strictly confidential and not shared with any unauthorized person. Client agrees to terminate any Authorized User’s access to Client account and any Byga Service pending any such status (employment termination, user or user’s dependents no longer associated with Client, volunteer termination, etc). In any event, Client will be responsible for any and all actions taken using Clients account, any actions by Authorized Users with access to Client accounts. Client must notify Byga immediately of any breach of security or unauthorized use of its account. Accounts are granted to specific Clients and must not be shared with others.

D.     USE RIGHTS.

Use of Byga Services. Subject to all terms and conditions of this Agreement, Byga grants Client a worldwide, non-exclusive, non-transferable, non-sub-licensable right and license during any applicable Term to access and use the Byga Service solely for Client’s business purposes, but in any event only in accordance with this Agreement, the Documentation, and/or as noted on any Order documentation. Where specified in the Documentation, the Byga Service may require installation of Byga Code on to support Client Service. In such cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant Byga Code in the specified Client Service. Use by Employees, Consultants and Contractors. As directed by Client, Client may allow employees, consultants or contractors to act as Authorized Users to use the Byga Service provided their use is for Client’s benefit only and remains in compliance with this Agreement. Client will be responsible and liable for all use and access and their compliance with the terms and conditions herein. General Restrictions. Client must not (and must not allow any third party to): (i) rent, lease, copy, transfer, sublicense, or provide access to the Byga Service to a third party (except Authorized Users as specifically authorized above); (ii) incorporate the Byga Service (or any portion thereof) into, or use it with or to provide, any site, product or service other than Client’s own Client Properties as specifically permitted above; (iii) use the Byga Service (or any portion thereof) for time sharing purposes or for a third party’s benefit; (iv) publicly disseminate information regarding the performance of the Byga Service (which is deemed Byga’s Confidential Information); (v) modify or create a derivative work of the Byga Service or any portion thereof; (vi) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Byga Service (including Byga Code), except to the extent expressly permitted by applicable law and then only upon advance notice to Byga; (vii) distribute any portion of the Byga Service, other than as specifically permitted above; or (viii) remove or obscure any proprietary or other notices contained in the Byga Service including in any reports or output obtained from the Byga Service.

E.     CLIENT DATA.

Rights in Client Data. As between the parties, Client retains all right, title and interest (including any intellectual property rights) in and to the Client Data, all Client Service and all content contained therein (excluding any Byga Technology). Client hereby grants Byga a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Client Data solely to the extent necessary to provide the Byga Service, provide related services to Client, or efficiently operate the Byga platform and business. Aggregate/Anonymous Data. Byga aggregates Client Data with other data so that results are non-personally identifiable with respect to Client or Client’s Visitors, and also generates anonymous learnings, logs and data regarding use of the Byga Service (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Byga Technology, which Byga may use for any business purpose during or after the term of this Agreement, including without limitation to develop and improve Byga’s products and services and to create and distribute reports and other materials. For clarity, this Section 5.2 does not give Byga the right to identify Client as the source of any Aggregate/Anonymous Data without Client’s prior written permission. Security. Byga agrees to maintain technical and organizational measures designed to secure its systems from unauthorized access, use, or disclosure. These measures will include: (i) storing Client Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Client Data from unauthorized disclosure. Storage. Byga may provide, and include in Service, an archiving service. After the Term, unless Client expressly opts into a product providing archival option, Client acknowledges that Byga may delete Content no longer in active use. Byga expressly disclaims all other obligations with respect to storage.

F.     CLIENT OBLIGATIONS.

Security. Client will, at all times while this Agreement is in effect, Client shall maintain and adhere to all reasonable security measures to protect Client system and the data contained therein from unauthorized control, tampering, or any other unauthorized access. Collection and Use of Client Data. Client is solely responsible for its Client Data and Client Service and the consequences of collecting, using and transmitting these materials to/from the Byga Services. It must maintain a legally-adequate privacy policy on its Client Service and provide all required disclosures to Client’s Authorized Users. It must also obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant the rights to Byga herein. Submission of Regulated Data. Client must not submit, collect or use any Regulated Data with or to the Byga Service (other than information about Authorized Users necessary to create user accounts). The parties agree that Byga has no liability under this Agreement for Regulated Data received from Client, notwithstanding anything to the contrary herein. Client Mobile Applications. Client must ensure that it complies with any applicable third-party application development or distribution agreements (such as the ‘Apple App Store’ terms) when using or distributing the Byga Service (including the Byga Code) in connection with its Client Mobile Applications. Client will not take any action that would cause Byga, the Byga Service, or the Byga Code to become subject to any third party terms including open source license terms. Notice and Take-Down. Client will be responsible for handling infringement notices and take-down requests it receives for any Client property and content. Client must promptly notify Byga if it learns of any notices or take down requests related to property and content, and immediately stop using that property and content with any Byga Service. Without limiting its other available remedies, Byga without liability may take down allegedly infringing property and content, and otherwise respond to any notice and take-down requests it receives in accordance with its policies.

G.     SERVICES.

Byga makes available web-based support through its website (currently available at   https://byga.net/support). Additional support services may be available to Client upon payment of applicable fees (if any) or then current rates. Any support services are subject to this Agreement and Byga’s applicable support policies. Byga may also provide onboarding, deployment and other services under this Agreement. The scope, pricing, and other terms for these additional services will be set forth in an Order, Order exhibit or other document referencing this Agreement. Client may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the Byga Service, subject to the restrictions in Section 5 (Use Rights) above applicable to the Byga Service itself. Byga’s ability to deliver services will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the services. For avoidance of doubt, Client retains ownership of any Confidential Information it provides to Byga.

H.     REPRESENTATIONS AND WARRANTIES.

Any representative of a Client entering an Order on behalf of Client represents and warrants that they are an employee or agent and have the legal power and authority to enter into and bind that entity, the Client, to this Agreement. Client represents and warrants that at all times during the Term of this Agreement, (a) Client’s installation, configuration, and/or use of Byga Services shall conform this Agreement, including the specifications set forth in the applicable Documentation; (b) Client does and will comply with all applicable laws, policies, regulations, and ordinances for the countries in which it operates; (c) that none of the Client services constitute, support, encourage or otherwise contribute to a transaction that Client knows or reasonably should know to be fraudulent. Client represents and warrants that its activities are consistent with applicable privacy disclosures and will not violate third party rights, including intellectual property, privacy and publicity rights. Byga takes no responsibility and assumes no liability for any Client Data or Client Properties other than its express security obligations under Section 6.3 (Security). Client represents and warrants that it, its affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country.

I.     FEES AND PAYMENT.

Client agrees to pay all fees in U.S. dollars within thirty (30) days of the invoice date, unless a different currency or payment period is specified in the applicable Order. Byga’s fees are exclusive of all taxes, and Client must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Byga. Client will make tax payments to Byga to the extent amounts are included in Byga’s invoices. Some Clients may have the option to pay by credit card. If Client is paying by credit card, it authorizes Byga to charge fees and other amounts automatically to Client’s credit card without invoice. Unless otherwise specified in an Order Form or Service-Specific Term, such charges typically occur monthly in advance, though overage fees (if any) may be charged in arrears. Payments are non-refundable and non-creditable and payment obligations non-cancellable. Byga’s only remedy for non-payment of service shall be to discontinue service to Client.

J.     TERM AND TERMINATION.

Term. This Agreement is effective until all Byga Service(s) period of service, as evidenced in part with payment for such service if so required, have expired or are terminated by either party as expressly permitted herein. Renewals. By placing an Order for purchase of a Byga Service, Client is agreeing to pay the applicable fees for the entire Term. Client can cancel or terminate a Term or Service with thirty (30) days written notice. Each Term will automatically renew for additional successive periods unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Term. If no start date is specified on the applicable Order, the Term starts when Client first obtains access to the Byga Service. Unless agreed to in writing prior to the end of the Term, pricing for any Term renewal will be at Byga’s then-applicable rates. Suspension of Service. If Client’s account is overdue, Byga reserves the right to suspend Client’s access to the Byga Service(s) (and any related services) without liability to Client until paid in full. Byga may also suspend any use or access by Client without liability if: (i) Client has exceeded its usage limits as set forth in an Order; or (ii) Byga deems suspension necessary as a result of: (a) a breach or suspected breach of Sections 4 (Use Rights) or 6 (Client Obligations); or (b) to prevent harm or liability to other Clients or third parties or preserve the security, stability, availability or integrity of the Byga Service. Unless this Agreement has been terminated, Byga will cooperate with Client to restore access to the Byga Service once it verifies that Client has resolved the condition requiring suspension. Termination for Convenience. Either party may terminate this Agreement (a) by cancelling such service on Byga site(s); or (b) upon sixty (60) days notice via, such notice to be sent to ‘legal@byga.net’. Termination for Cause. Either party may terminate this Agreement, including any related Order, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). Byga may also terminate this Agreement immediately if Client breaches Sections 5, 7 or 8.2 for repeated violations of this Agreement. Effect of Termination. Upon any expiration or termination of this Agreement or an Order: (a) Client’s license rights shall terminate and it must immediately cease use of the applicable Byga Service(s) (including any related Byga Technology), cease distributing any Byga Code installed on its Client Properties, and delete (or, at Byga’s request, return) any and all copies of the Byga Code, any Byga documentation, passwords or access codes, and any other Byga Confidential Information in Client’s possession, custody, or control; and (b) Client’s right to access any Client Data in the applicable Byga Service will cease and Byga may delete any such data in its possession at any time. If Byga terminates this Agreement for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party. Survival. The following Sections survive any expiration or termination of this Agreement: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Free Access Subscriptions); 5.1 (Rights in Client Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 11 (Byga Technology); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); 15 (Third-Party Products and Integrations); and 16 (General).

K.     CONFIDENTIAL INFORMATION.

Obligation of Confidentiality. Each party (as the receiving party) must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and (b)use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, or contractors having a legitimate need to know (which, for Byga, includes the subcontractors referenced in Section 17.4), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 11 and these recipients are bound to confidentiality obligations no less protective than this Section. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

L.     BYGA TECHNOLOGY.

Ownership and Updates. This is a subscription agreement for access to and use of the Byga Service. Client acknowledges that it is obtaining only a limited right to use the Byga Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Client under this Agreement. Client agrees that Byga (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all Byga Technology (which is deemed Byga’s Confidential Information) and reserves any licenses not specifically granted herein. Other than the Byga Code, the Byga Service is offered as an on-line, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Byga Service and that Byga at its option may make updates, bug fixes, modifications or improvements to the Byga Service from time-to-time. Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Byga (collectively, “Feedback”), Client hereby grants Byga a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Byga’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

M.     INDEMNIFICATION.

Client will indemnify and hold Byga harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to any Client Data, Client Services (including services or products provided through such property), or breach or alleged breach of Section 7 (Client Obligations). Client also agrees to defend Byga against these claims at Byga’s request, but Byga may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Client must not settle any claim without Byga’s prior written consent if the settlement does not fully release Byga from liability or would require Byga to admit fault, pay any amounts, or take or refrain from taking any action.

N.     DISCLAIMERS.

ALL Byga TECHNOLOGY AND RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER Byga NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICUlAR PURPOSE OR NONINFRINGEMENT. Byga DOES NOT WARRANT OR GUARANTEE THAT ANY Byga TECHNOLOGY OR RELATED SERVICES (INCLUDING CHANGES CLIENT MAKES TO CLIENT PROPERTIES) WILL MEET CLIENT’S EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE OR PRESERVED WITHOUT LOSS, OR THAT USE OF THE Byga TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE. Byga WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SERVICE FAILURES, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS OR CAUSED BY NON-Byga SYSTEMS, NETWORKS, PRODUCTS OR SERVICES. Byga CANNOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. CLIENT ACKNOWLEDGES THAT (A) Byga IS NOT A BUSINESS ASSOCIATE OR SUBCONTRACTOR (INCLUDING AS THOSE TERMS ARE DEFINED IN THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT), (B) THAT THE Byga SERVICE IS NOT HIPAA COMPLIANT, AND (C) THAT Byga IS NOT PCI DSS COMPLIANT. IN NO EVENT SHALL Byga BE RESPONSIBLE FOR ANY DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON USE OF ANY Byga TECHNOLOGY OR RELATED SERVICES. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

O.     LIMITATIONS OF LIABILITY.

IN NO EVENT WILL Byga OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Byga’S OR ITS SUPPLIERS’ TOTAL LIABILITY TO CLIENT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO Byga FOR THE APPLICABLE Byga SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, Byga’S TOTAL LIABILITY SHALL NOT EXCEED IN AGGREGATE ZERO U.S. DOLLARS ($0 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 10 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY Byga TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

P.     THIRD-PARTY PRODUCTS AND INTEGRATIONS.

The Byga Service may integrate with third-party products in order to deliver the Byga Service. Client agrees to allow such access when using the Byga Service. Clients may choose to integrate third-party products. Third-party products may access Client’s instance of the Byga Service and export, delete or otherwise alter Client Data. Client is solely responsible for this access and for compliance with any applicable third-party terms. Byga does not warrant or support third-party products or services (whether or not they are designated by Byga as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these products and services and their access to the Byga Service and Client Data.

Q.    GENERAL.

Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Byga may assign this Agreement without consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.

R.     NOTICES.

Any notice or communication under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices) to Byga at the following address, legal@byga.net, and include “Attn. Legal Department” in the subject line. Byga may send notices to the e-mail addresses on Client’s account or, at Byga’s option, to Client’s last-known postal address. Byga may also provide operational notices regarding the Byga Service or other business-related notices through conspicuous posting of such notice on Byga’s website or the Byga Service. Each party hereby consents to receipt of electronic notices. Byga is not responsible for any automatic filtering Client or its network provider may apply to email notifications.

S.     SUBCONTRACTORS.

Byga may use subcontractors and permit them to exercise the rights granted to Byga in order to provide the Byga Service and related services under this Agreement. These subcontractors may include, for example, Byga’s hosted service and CDN (Content Delivery Network) providers. However, subject to all terms and conditions herein, Byga will remain responsible for: (a) compliance of its subcontractors with the terms of this Agreement; and (b) the overall performance of the Byga Services if and as required under this Agreement.

T.     SUBPOENAS.

Nothing in this Agreement prevents Byga from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Byga will use commercially reasonable efforts to notify Client where permitted to do so.

Independent Contractors.

The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

U.     FORCE MAJEURE.

Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

V.     EXPORT.

Client is responsible for obtaining any required export or import authorizations for use of the Byga Services. Client must not access or use the Byga Service in violation of any U.S. export embargo, prohibition or restriction.

W.     AMENDMENTS.

Byga may update or modify this Agreement (including any Service-Specific Terms, referenced policies and other documents) from time to time. If Byga modifies the Agreement during Client’s Term, the modified version will take effect immediately. Client may be required to click through the updated Agreement to show acceptance; in any event, continued use of Free Access Subscriptions or any renewal of a Term following the update shall constitute acceptance of the updated Agreement. If Client does not agree to the updated Agreement after it takes effect, Client will no longer have the right to use the Byga Service. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.

X.     SEVERABILITY.

If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.

Y.     NO THIRD PARTY RIGHTS.

Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Order only permits use by and for the legal entity or entities identified in the Order and not any affiliated entities.

Z.     ATTORNEYS' FEES AND COSTS.

The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

AA.     U.S. GOVERNMENT USE.

The Byga Services are based upon commercial computer software. If the user or licensee of an Byga Service is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Byga Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Byga Services were developed fully at private expense. All other use is prohibited.

AB.     ENTIRE AGREEMENT.

This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Byga Technology or any other subject matter covered by this Agreement. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only, and have no legal effect.

AC.     GOVERNING LAW; JURISDICTION AND VENUE.

This Agreement is governed by the laws of the State of California and the United States without regard to choice or conflict of law roles thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state courts located in Santa Clara County, California or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.