TERMS OF SERVICE

Thank you for registering with Byga, Inc. (“Byga”). By registering, or subsequently using/accessing any Byga product or service (“Service” or “Services”), you agree (i) to all the terms and conditions of this Terms of Service TOS (“TOS”) and (ii) you agree that you are an Authorized User as defined in this TOS. In addition, if you represent a different legal entity other than yourself, including but not limited to a business, institution, league, or charity, you agree that you are also governed by any terms in any agreements between that entity (“Client”) and Byga (“Client TOS”). Byga reserves the right to modify this TOS from time to time, and continued use of the Service by Authorized Users constitutes acceptance of such modifications.

This Agreement is effective as of January 1, 2023.

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

A. DEFINITIONS.

1. “Authorized User” means any real person (i) acting on their own behalf if at least eighteen years of age or with the consent of a parent or legal guardian if at least thirteen years of age, (ii) acting on behalf of any minors in their care, (iii) or acting on the behalf of a Client, including but not limited to, Client’s User’s employees, consultants and contractors.
2. “Authorized Client Applications” means the Client owned-and-operated software applications, developed or licensed by Authorized User, including mobile applications, other than any applications or services supported by applications provided by Byga.
3. “Authorized User Data” means any information sent to Byga via Byga Technology.
4. “Byga Code” means the code provided by Byga to Authorized User or to Clients for use in connection with the Byga Service, which may include Byga’s APIs, Ruby GEM or other similar code.
5. “Byga Service” means the proprietary software-as-a-service offering of Byga, including any related Byga Technology, and anything delivered as part of support or other services.
6. “Byga Technology” means any and all related or underlying documentation, technology, Byga Code, know-how, logos and templates (including in any reports or output obtained from the Byga Service), and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any feedback.
7. “Client Sites” means the Client owned-and-operated web domains and subdomains.
8. “Client User Services” include Client Authorized User Applications, Client User Mobile Applications and Client User Sites.
9. “Confidential Information” means code, inventions, know-how, product plans, inventions, marketing plans, technical and financial information exchanged under this TOS 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.
10. “Documentation” means exclusively (a) Byga’s end user 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 TOS.
11. “Order” means any Byga ordering documentation, online sign-up or subscription that references the use of any Byga Service.
12. “Regulated Data” means: (a) any personally identifiable information; (b) any patient, medical or other protected or regulated health information; (c) any payment information (eg. sixteen (16) digit PAN, etc) governed by any payment industry standard; (d) or, any other information subject to regulation or protection under specific laws or regulations.
    

B. OVERVIEW OF THE BYGA PLATFORM.

1. Overview. Byga provides a suite of services which allows an Authorized User to view, collect, store, query and manipulate data as so allowed and permitted via exposed Byga Service functionality. As a prerequisite to any such activity, an Authorized User 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, an Authorized User may access, configure and use any such Byga Service as permitted or allowed, acknowledging such permission may be dependent on a specific product option and commitment to pay. The applicable Documentation provides additional details about each Byga Service.
2. Relationship with Client. Authorized User may have a relationship, as described in this document including, but not limited to, contracts, waivers, employment agreements, independent contractor agreement, rules, league regulations, etc with one or more Clients. Authorized User agrees that this TOS does not grant any additional rights or limit any obligations of the Client which is otherwise defined in any such Client agreement. 
3. Authorized Users may be subject to terms and/or policies ("Third Party Agreements") of one or more Third Party, through whom Byga’s services are made available on the Third Party’s behalf. Third Parties, may include Clients or other Third Party. Byga is not responsible for the practices of Third Parties that Byga does not own or control. Authorized Users agree that this TOS does not grant any additional rights or limit any obligations of the Third Party which is otherwise defined in any such Third Party Agreement. By using Byga's services, Client agrees to be bound by the Third Party's Terms of Service. If you have questions regarding any Third Party policies or agreements, please contact the related Third Party directly. Below is a list of Third Parties we work with. From time-to-time we may update this list to make sure you understand who we partner with to bring you our services.
4. YouTube
   

C. ACCOUNT REGISTRATION.

1. Registration. To use the Byga Service, a person will register for a Byga account. Account information must be accurate, current, and complete, and will be governed by Byga’s Privacy Policy (currently available at https://byga.net/privacy/). Authorized User agrees (i) to keep this information up-to-date so that Byga may send notices, statements, and other information by email or through Authorized User’s account, (ii) to ensure that any user IDs and passwords for the Byga Service are kept strictly confidential and not shared, (iii) to be responsible for any and all actions taken using their accounts and passwords, (iv) to notify Byga immediately of any breach of security or unauthorized use of its account.

D. USE RIGHTS.

1. Use of the Byga Service. Subject to all terms and conditions of this TOS, Byga grants Authorized User a worldwide, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Byga Service, but in any event only in accordance with this TOS, the Documentation, and/or as noted on any Order documentation. Where specified in the Documentation, the Byga Service may require installation of Byga Code to support Authorized User 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 Byga Service.
2. General Restrictions. Authorized User 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 User 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.
3. Byga uses Plaid Technologies, Inc (“Plaid”) to gather End User’s data from financial institutions. By using the Byga service, you grant Client and Plaid the right, power and authority to act on your behalf to access and transmit your personal and financial information from the relevant financial institution. You agree to your personal and financial information being transferred, stored and processed by Plaid in accordance with the Plaid Privacy Policy.
   

E. DATA.

1. Rights in Authorized User data. As between the parties, Authorized User retains all right, title and interest (including any intellectual property rights) in and to the Authorized User data. Authorized User 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 Authorized User Data solely to the extent necessary to provide the Byga Service and related services to Authorized User or associated Clients.
2. Aggregate/Anonymous Data. Byga aggregates Authorized User Data with other data so that results are non-personally identifiable with respect to Authorized User, 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, 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 E.2 does not give Byga the right to identify Authorized User as the source of any Aggregate/Anonymous Data without Authorized User’s prior written permission.
3. Security. Byga will use commercially reasonable efforts to maintain technical and organizational measures designed to secure its systems from unauthorized access, use, or disclosure.
   

F. AUTHORIZED USER OBLIGATIONS.

1. Prohibited Use. Authorized User agrees not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Byga servers than a human can reasonably produce in the same period of time by using a conventional web browser (except that Byga grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
2. Notice and Take-Down. Authorized User will be responsible for handling infringement notices and take-down requests it receives for any Authorized User property and content. Authorized User 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.

1. Support Services. Byga makes available web-based support through its website (currently available at byga.net). Any support services are subject to this TOS and Byga’s applicable support policies. Byga may also provide onboarding, deployment and other services under this TOS. Authorized User may use anything delivered as part of these additional services internally to support its authorized use of the Byga Service, subject to the restrictions in Section 4 (Use Rights) above applicable to the Byga Service itself. Byga’s ability to deliver services will depend on Authorized User’s reasonable and timely cooperation and the accuracy and completeness of any information from Authorized User needed to deliver the services.
2. Affiliate or Third Party Marketing. Byga may make available to Authorized User affiliate or third party products, services or offers. Authorized User agrees to permit such activity, but make no commitment to accept any such product, service or offer.
3. Third Party Integrations. The Byga Service may integrate with third-party products in order to deliver the Byga Service and Clients may integrate third-party products on behalf of Authorized-Users. Third-party products may access Authorized User’s instance. Authorized User agrees to allow such access when using the Byga Service. The Byga Service may also optionally integrate with third-party products the Authorized User can choose to enable. 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 Authorized User Data.
   

H. REPRESENTATIONS AND WARRANTIES.

1. Authority. Authorized User represents and warrants that he/she has the legal power and authority to enter into this TOS. Authorized User agrees that they are at least eighteen years old or of such that are recognized of an age that they can legally enter into a binding contractual agreement or that they are at least thirteen years old and acting with the permission of a parent or legal guardian. Parent or legal guardian of Authorized User at least thirteen years of age hereby agrees to bind that entity, the Authorized User, to this TOS. If Authorized User is representing a Client, the Authorized User represents and warrants he/she is an employee or agent with all necessary authority to bind that entity, the Authorized User, to this TOS.
2. Laws. Authorized User represents and warrants that at all times during the Term of this TOS, (a) Authorized User’s installation, configuration, and/or use of Byga Services shall conform this TOS, including the specifications set forth in the applicable Documentation; (b) Authorized User does and will comply with all applicable laws, policies, regulations, and ordinances for the countries in which it operates; (c) that none of the Authorized User services constitute, support, encourage or otherwise contribute to a transaction that Authorized User knows or reasonably should know to be fraudulent.
3. Privacy. Authorized User represents and warrants that his/her 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 Authorized User Data or Authorized User Properties other than its express security obligations under Section 6.3 (Security).
4. Restricted Activity. Authorized User 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.

1. Payments. If Byga makes available any Byga Service specific to Authorized User, Authorized User agrees to pay any or all associated fees, if any, 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 Authorized User 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. Authorized User will make tax payments to Byga to the extent amounts are included in Byga’s invoices. Some Authorized Users may have the option to pay by credit card. If Authorized User is paying by credit card, it authorizes Byga to charge fees and other amounts automatically to Authorized User’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 Authorized User, such remedy to begin five (5) days after any lapse in payment.

J. TERM AND TERMINATION.

1. Term. This TOS 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.
2. Renewals. By placing an Order for purchase of a Byga Service, Authorized User is agreeing to pay the applicable fees for the entire Term. Authorized User 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 Authorized User 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.
3. Suspension of Service. If Authorized User’s account is overdue, Byga reserves the right to suspend Authorized User’s access to the Byga Service(s) (and any related services) without liability to Authorized User until paid in full. Byga may also suspend any use or access by Authorized User without liability if: (i) Authorized User 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 (Authorized User Obligations); or (b) to prevent harm or liability to other Authorized Users or third parties or preserve the security, stability, availability or integrity of the Byga Service. Unless this TOS has been terminated, Byga will cooperate with Authorized User to restore access to the Byga Service once it verifies that Authorized User has resolved the condition requiring suspension.
4. Termination for Convenience. Either party may terminate this TOS upon sixty (60) days written notice.
5. Termination for Cause. Either party may terminate this TOS, including any related Order, if the other party: (a) fails to cure any material breach of this TOS (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 TOS immediately if Authorized User breaches Sections 5, 7 or 8.2 for repeated violations of this TOS.
6. Effect of Termination. Upon any expiration or termination of this TOS or an Order: (a) Authorized User’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 Authorized User 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 Authorized User’s possession, custody, or control; and (b) Authorized User’s right to access any Authorized User 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 TOS 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 Authorized User. Except where this TOS specifies an exclusive remedy, all remedies under this TOS, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
7. Survival. The following Sections survive any expiration or termination of this TOS: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Free Access Subscriptions); 5.1 (Rights in Authorized User 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.

1. 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 TOS; and (b)use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under this TOS. 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.
2. 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 advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
3. 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.

1. Ownership and Updates. This is a subscription agreement for access to and use of the Byga Service. Authorized User 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 Authorized User under this TOS. Authorized User 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 online, hosted product. Accordingly, Authorized User 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.
2. Feedback. If Authorized User elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Byga (collectively, “Feedback”), Authorized User hereby grants Byga a worldwide, perpetual, non-revocable, sub-licensable, 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 TOS limits Byga’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
   

M. INDEMNIFICATION.

1. Authorized User 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 Authorized User Data, Authorized User Services (including services or products provided through such property), or breach or alleged breach of Section 6 (Authorized User Obligations). Authorized User 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. Authorized User 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 NON INFRINGEMENT. BYGA DOES NOT WARRANT OR GUARANTEE THAT ANY BYGA TECHNOLOGY OR RELATED SERVICES (INCLUDING CHANGES AUTHORIZED USER MAKES TO AUTHORIZED USER PROPERTIES) WILL MEET AUTHORIZED USER’S EXPECTATIONS, THAT AUTHORIZED USER 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. AUTHORIZED USER 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 AUTHORIZED USER 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. AUTHORIZED USER 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 AUTHORIZED USER EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY AUTHORIZED USER 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 FIFTY U.S. DOLLARS ($50 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 15 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. GENERAL.

1. Assignment. This TOS will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this TOS without the advance written consent of the other party, except that Byga may assign this TOS 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 TOS except as expressly authorized under this Section 17.1 will be null and void.
2. Notices. Any notice or communication under this TOS must be in writing. Authorized User must send any notices under this TOS (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 Authorized User’s account or, at Byga’s option, to Authorized User’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 Authorized User or its network provider may apply to email notifications.
3. 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 TOS. These subcontractors may include, for example, Byga’s hosted service and CDN providers. However, subject to all terms and conditions herein, Byga will remain responsible for: (a) compliance of its subcontractors with the terms of this TOS; and (b) the overall performance of the Byga Services if and as required under this TOS.
4. Subpoenas. Nothing in this TOS prevents Byga from disclosing Authorized User Data to the extent required by law, subpoenas, or court orders, but Byga will use commercially reasonable efforts to notify Authorized User where permitted to do so.
5. Independent Contractors. The parties to this TOS are independent contractors, and this TOS 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.
6. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this TOS (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.
7. Export. Authorized User is responsible for obtaining any required export or import authorizations for use of the Byga Services. Authorized User must not access or use the Byga Service in violation of any U.S. export embargo, prohibition or restriction.
8. Amendments. Byga may update or modify this TOS (including any Service-Specific Terms, referenced policies and other documents) from time to time. If Byga modifies the TOS during Authorized User’s Term, the modified version will take effect immediately. Authorized User may be required to click through the updated TOS to show acceptance; in any event, continued use of the Byga Service following the update shall constitute acceptance of the updated TOS. If Authorized User does not agree to the updated TOS after it takes effect, Authorized User will no longer have the right to use the Byga Service. Except as otherwise described in this Section, any modification or amendment to this TOS 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 TOS. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.
9. Severability. If any provision of this TOS 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 TOS may otherwise remain in effect.
10. No Third Party Rights. Nothing in this TOS confers on any third party the right to enforce any provision of this TOS. Authorized User acknowledges that each Order only permits use by and for the legal entity or entities identified in the Order and not any affiliated entities.
11. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this TOS will be entitled to recover its reasonable attorneys’ fees and costs for the action.
12. 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 TOS 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.
13. Entire TOS. This TOS represents the parties’ complete and exclusive understanding relating to the TOS’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 TOS. Any terms provided by Authorized User (including as part of any purchase order or other business form used by Authorized User) are for administrative purposes only, and have no legal effect.
14. Governing Law; Jurisdiction and Venue. This TOS 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 TOS 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 TOS. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this TOS regardless of when or where adopted.