TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
Welcome to this website (this “Site”), which is owned and operated by Baystone Media, Inc., a New York corporation (“Baystone”). These Terms of Service (“TOS”) set forth the terms and conditions of Your use of this Site and the products and services offered by Baystone and its affiliates including, but not limited to, web hosting, content creation, web design, e-mail, domain registration, and any associated support services (individually and collectively, the “Services”).
Whether You are simply browsing this Site or are a Baystone client, Your use of this Site signifies that You have read, understand, acknowledge and agree to be bound by these TOS, along with any posted guidelines or rules applicable to such Services, which may be posted from time to time or delivered to You as part of a service engagement. All such guidelines or rules are hereby incorporated by reference into this TOS.
The terms “we”, “us” or “our” shall refer to Baystone. The terms “You”, “Your”, “User” or “client” shall refer to any individual or entity who accepts these TOS by using this Site or the Services. Nothing in these TOS shall be deemed to confer any third-party rights or benefits.
Baystone, in its sole and absolute discretion, may change or modify these TOS, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. You acknowledge and agree that (i) Baystone may notify You of such changes or modifications by posting them to this Site, including the “My Profile” section and (ii) Your use of this Site or the Services after such changes or modifications have been made (as indicated by the “Last Revised” date at the top of this page) shall constitute Your acceptance of these TOS as last revised. If You do not agree to be bound by these TOS as last revised, do not use (or continue to use) this Site or our Services.
2. ELIGIBILITY; AUTHORITY
This Site and the Services are available only to Users who can form legally binding contracts under applicable law. By using this Site or the Services, You represent and warrant that You are (i) at least eighteen (18) years of age and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law.
If You are agreeing to these TOS on behalf of a legal entity (e.g., corporation, limited liability company), You represent and warrant that You have the legal authority to bind such legal entity to these TOS, in which case the terms “You”, “Your”, “User” or “client” shall refer to such legal entity. If, after Your agreement to these TOS, Baystone finds that You do not have the legal authority to bind such corporate entity, You will be personally responsible for the obligations contained in these TOS. Baystone shall not be liable for any loss or damage resulting from our reliance on any instruction, notice, document or communication reasonably believed by Baystone to be genuine and originating from an authorized representative of Your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Baystone reserves the right (but undertakes no duty) to require additional authentication from You. Baystone reserves the right to modify, change, or discontinue any aspect of this Site or the Services, including without limitation prices and fees for the same, at any time.
3. ACCOUNTS; TRANSFER OF DATA ABROAD
Accounts. In order to access some of the features of this Site or use some of the Services, You will have to create a client account (an “Account”). To the extent that You use our Services to create a website that is transmittable via the Internet and is stored and accessible from our web server equipment as part of this Site (“Your Website”), You will require an Account. You represent and warrant to Baystone that all information You submit when You create Your Account is accurate, current and complete, and that You will keep Your Account information accurate, current and complete. If Baystone has reason to believe that Your Account information is untrue, inaccurate, out-of-date or incomplete, Baystone reserves the right, in its sole and absolute discretion, to suspend or terminate Your Account. You are solely responsible for the activity that occurs on Your Account, whether authorized by You or not, and You must keep Your Account information secure, including without limitation Your client number/login, password, and payment method(s). For security purposes, Baystone recommends that You change Your password at least once every six (6) months for each Account You have with Baystone. You must notify Baystone immediately of any breach of security or unauthorized use of Your Account. Baystone will not be liable for any loss You incur due to any unauthorized use of Your Account. You, however, may be liable for any loss Baystone or others incur caused by Your Account, whether caused by You, or by an authorized or unauthorized person.
Transfer of Data Abroad. If You are visiting this Site from a country other than the country in which our servers are located, Your communications with us may result in the transfer of information (including Your Account information) across international boundaries. By visiting this Site and communicating electronically with us, You consent to such transfers.
4. FEES AND PAYMENTS
Certain Services are subject to set-up, service, and domain service fees, pursuant to the Fee Schedule, and by registering for such Service You agree to pay any and all pertinent prices and fees due. All prices and fees are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. Baystone expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to You. If You have purchased Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal as further described below.
Except as prohibited in any product-specific agreement, you may pay for a Service by providing a valid credit card or an electronic check (i.e., debited from your checking account on file in Your Account using an electronic funds transfer or bank draft) (each, a “Payment Method”). Communications regarding Your Account and Services may be sent to an email address or SMS number that You have provided in Your Account. With respect to SMS notifications, normal messaging and carrier fees may apply, so You should check with Your respective carrier for details before providing such information in Your Account. Your Payment Method on file must be kept valid if you have any active Services in Your Account.
Where refunds are issued, Baystone’s issuance of a refund receipt is confirmation that we have submitted Your refund to the Payment Method charged at the time of the original sale. You acknowledge and agree that the associated payment provider and/or individual issuing bank establish and regulate the time frames for posting Your refund. Refund posting time frames may range from five (5) business days to a full billing cycle.
In order to ensure that You do not experience an interruption or loss of Services, UNLESS bAYSTONE RECEIVES NOTICE OF A TERMINATION IN WRITING, most Services ARE SUBJECT TO AN automatic renewal WHICH renews the applicable Service for a renewal period equal in time to the original service period. For example, if Your original service period is for one year, Your renewal period will be for one year. AS SUCH, BAYSTONE will automatically renew the applicable Service when it comes up for renewal and will charge Your credit card at OUR then current rates, which You acknowledge and agree may be higher or lower than the rates for the original service period. You acknowledge and agree that it is Your sole responsibility to modify and maintain Your Account settings TO ensurE Your CREDIT CARD IS CURRENT and valid. Further, You acknowledge and agree that Your failure to do so, may result in the interruption or loss of Services, and BAYSTONE shall not be liable to You or any third party regarding the same.
If for any reason Baystone is unable to charge the Payment Method in Your Account for the full amount owed for the Services provided, or if Baystone is charged back for any fee it previously charged to the Payment Method You provided, You agree that Baystone may pursue all available lawful remedies in order to obtain payment. You agree that the remedies Baystone may pursue in order to effect payment shall include, but not be limited to, immediate cancellation without notice to You of any domain names or Services registered or renewed on Your behalf. Baystone reserves the right to charge You reasonable “administrative fees” or “processing fees” for (i) tasks Baystone may perform outside the normal scope of its Services, (ii) additional time and/or costs Baystone may incur in providing its Services, and/or (iii) Your noncompliance with these TOS (as determined by Baystone in its sole and absolute discretion). Typical scenarios include, but are not limited to, customer service issues that require additional personal time or attention, fees incurred by third-party payment providers, fees incurred as the result of chargebacks or other payment disputes brought by You, Your credit card processor, and disputes that require accounting or legal services. These administrative fees or processing fees will be billed to the credit card in Your Account.
Baystone may, from time to time, offer promotional rates or special offers, the terms of which may or may not be more favorable than Your terms and conditions for the Services. Such different rates and offers shall not modify Your existing terms and conditions under this TOS. Promotional rates and special offers may not be combined.
5. INTELLECTUAL PROPERTY
General. All content and services included in the Site and Services, including, but not limited to, trademarks and logos, designs, text, graphics, sounds, images, software, and other website materials are the intellectual property of Baystone, its licensors or third parties and protected by United States and foreign intellectual property laws. Except as stated herein, such materials may not be copied, reproduced, or distributed in any form without the prior written permission of Baystone. Any unauthorized use of any materials contained on this Site or its Services may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. All rights, title and interest not expressly granted are reserved.
Copyrights. The copyright in all material provided on this Site is held by Baystone or by the original creator of the material. Except as stated herein, none of the material may be copied, reproduced, distributed, republished, translated, downloaded, displayed, posted, communicated to the public by telecommunication or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Baystone or the copyright owner.
Trademarks. The trademarks, service marks, and logos (the "Trademarks") used and displayed on this Site are registered and unregistered Trademarks of Baystone and others. Nothing on this Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site, without the written permission of the Trademark owner. Baystone aggressively enforces its intellectual property rights to the fullest extent of the law.
6. GENERAL RULES OF CONDUCT
You acknowledge and agree that:
- Your use of this Site and the Services, including any content You submit to Your Website, will comply with these TOS and all applicable local, state, national and international laws, rules and regulations.
- You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.
- You will not use this Site, the Services or Your Website in a manner (as determined by Baystone in its sole and absolute discretion) that:
- Is illegal, or promotes or encourages illegal activity;
- Promotes, encourages or engages in defamatory, harmful, abusive or otherwise objectionable behavior;
- Promotes, encourages or engages in child pornography or the exploitation of children;
- Promotes, encourages or engages in hate speech, hate crime, terrorism, violence against people, animals, or property, or intolerance of or against any protected class;
- Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
- Infringes on the intellectual property of a third party;
- Violates the privacy or publicity rights of a third party, or breaches any duty of confidentiality that You owe to a third party;
- Interferes with the operation of this Site or the Services;
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
- Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Baystone or the Services.
- You will not copy or distribute in any medium any part of this Site, the Services, or Your Website except where expressly and unambiguously authorized in writing by Baystone.
- You will not modify or alter any part of this Site or the Services or any of its related technologies, except where expressly and unambiguously authorized in writing by Baystone.
- You will not access Baystone Content (as defined below) or User Content through any technology or means other than through this Site itself, or as Baystone may designate in writing.
- You will not reverse engineer, disassemble, alter, decompile, duplicate, create derivative works from, make copies of, extract information from, provide or distribute others with any portion of the Site (including Your Website) or Services, or any information available on, extracted or derived from the Site (including Your Website) or Services, or any part thereof.
7. YOUR USE OF BAYSTONE CONTENT AND USER CONTENT
In addition to the general rules above, the provisions in this Section 9 apply specifically to Your use of Baystone Content and User Content posted to the Site and Your Website.
Baystone Content. Except for User Content, the content on this Site, the Services and Your Website, including without limitation the text, prose, software, scripts, source code, API, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein (“Baystone Content”), are owned by or licensed to Baystone and are subject to intellectual property rights under United States and foreign laws. Baystone Content is provided to You “as is”, “as available” and “with all faults” for Your personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of Baystone. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by these TOS. You agree and acknowledge that a phrase indicating that the Site was designed by Baystone shall be placed in the footer of each web page generated and distributed by Baystone. Baystone reserves all rights not expressly granted in and to the Baystone Content, this Site, the Services and Your Website, and these TOS do not transfer ownership of any of these rights.
User Content. Some of the features of this Site or the Services may allow You or Your customers to view, post, publish, share, store, or manage (a) commentary, ideas, opinions, recommendations, or advice (“User Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, “User Content”). By posting or publishing User Content to this Site, the Services or Your Website, You represent and warrant to Baystone that (i) You have all necessary rights to distribute the User Content via the Site, Services and Your Website, either because You are the author of the User Content and have the right to distribute the same, or because You have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) You do not violate the rights of any third party.
Ported Content. Baystone may, upon request, move content located on a prior website owned, maintained or operated by You to Your Site. In the event of such move, You represent and warrant that such content is User Content and you possess the right to move such User Content to Your Site.
Security. You agree not to circumvent, disable or otherwise interfere with the security-related features of this Site, the Services and Your Website (including without limitation those features that prevent or restrict use or copying of any Baystone Content or User Content) or enforce limitations on the use of this Site or the Services, the Baystone Content or the User Content therein.
Back-up. While Baystone shall use commercially reasonable efforts to back-up its Site, the Services and Your Website, You acknowledge that Baystone does not warrant such back-up, and You agree to accept as a risk the loss of any and all of the same.
8. BAYSTONE’S USE OF USER CONTENT
The provisions in this Section 10 apply specifically to Baystone’s use of User Content posted to the Site and Your Website.
Generally. You shall be solely responsible for any and all of Your User Content or User Content that is submitted through Your Account or on to Your Website, and the consequences of, and requirements for, distributing it.
With Respect to User Submissions. You acknowledge and agree that:
- Your User Submissions are entirely voluntary.
- Your User Submissions do not establish a confidential relationship or obligate Baystone to treat Your User Submissions as confidential or secret.
- Baystone has no obligation, either express or implied, to develop or use Your User Submissions, and no compensation is due to You or to anyone else for any intentional or unintentional use of Your User Submissions.
- Baystone may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
With Respect to User Content.
If You post or publish Your User Content to this Site including Your Website, You authorize Baystone to use the intellectual property and other proprietary rights in and to Your User Content to enable inclusion and use of the User Content in the manner contemplated by this Site, the Services and these TOS. Accordingly, You hereby grant Baystone a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform Your User Content in connection with this Site including Your Website and Baystone’s (and Baystone’s affiliates’) business(es) including, without limitation, for promoting and redistributing all or part of this Site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to You or any third party. You also hereby grant each User of this Site a non-exclusive license to access Your User Content (with the exception of User Content that You designate “private” or “password protected”) through this Site, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform Your User Content as permitted through the functionality of this Site including Your Website and under these TOS. The above licenses granted by You in Your User Content terminate within a commercially reasonable time after You remove or delete Your User Content from this Site. You understand and agree, however, that Baystone may retain (but not distribute, display, or perform) server copies of Your User Content that have been removed or deleted. The above licenses granted by You in Your User Content are perpetual and irrevocable.
9. Search Engines, Directories and Social Networking
Use of Third Party Sites. As part of the Services, we may attempt to optimize the placement of Your Website among search engine results and online marketing efforts. You agree that Baystone may perform link building, directory submissions and profile creations by submitting information on Your behalf to search engine providers, online directories, social networking vehicles and third party websites (“Third Party Sites”) for whom You must agree to their terms and conditions. Third Party Sites may include, but are not limited to, Google, Yahoo, MSN/Bing, InfoUSA, 411 Directory Assistance, Yellowpages.com, Superpages.com, Yellowbook.com, CitySearch, local online newspapers, Facebook, Twitter and YouTube. You agree to abide by the terms and conditions of these Third Party Sites at all times.
1.1.1.Right to Place Information and Disclaimer. You grant Baystone the right to place information pertaining to Your business on Third Party Sites and You authorize us to develop content based on information or material provided by You including, without limitation, User Content. You agree that Baystone is expressly authorized to enter your Third Party Site accounts for the purpose of making any changes or adjustment request by You and warrant that Baystone shall not be liable in connection with such access, possession ad Your contact or log-in information, or other matters conducted on your behalf with Third Party Sites. Further, You represent and warrant that the material and information You provide to Baystone is truthful, not misleading, and that You have the authority to represent this product and service information to Baystone. Any information appearing on Your Website shall be deemed information that You have provided to Baystone. You agree and acknowledge that because these are Third Party Sites, (i) the acts and omissions of the owner or operator of said sites are out of Baystone’s control, (ii) the acts and omissions of an end user of said Third Party Sites are out of Baystone’s control, and (iii) You will not attempt to hold Baystone liable for the acts of others on such Third Party Sites including, without limitation, any technical problems or customer service issues that may arise from their use or responsive comments that may appear as a result of a post relating to Your business.
Contacting Third Party Sites. Because some Third Party Sites only allow a verified business owner to make changes to its content or access its services, You agree to promptly contact such Third Party Site upon Baystone’s request, and take such action as may be necessary to establish or modify Your listings or cause Baystone to be provided access to such Third Party Site on Your behalf.
Monitoring. You agree and acknowledge that Baystone shall have no obligation, and undertakes no duty to, monitor, respond to, or cause the removal of, any User Content (e.g. responsive posts, reviews) appearing on any Third Party Site.
Revisions. You agree and acknowledge that any revision made to a post we make on your behalf to a Third Party Site, to the extent such revision is even practicable, shall require no less than seventy-two (72) hours to complete.
10. Eyewear Module
Use. To the extent Your use of the Services includes the ecommerce online store module (the “Eyewear Module”), You will have access to images of eyewear frames and textual data pertaining to ophthalmic frame style specifications (the “Eyewear Data”) supplied by Frames Data Inc. (“FDI”). As among You, Baystone and FDI, You agree and acknowledge that the Eyewear Data is owned and provided by FDI. Your right to use the Eyewear Data is subject to a separate agreement between Baystone and FDI, and Your use of the Eyewear Data shall be limited to Your Site as generally contemplated by the access provided to You by Baystone.
Sale of Eyewear. If You use the Eyewear Module to sell and order frames, You acknowledge and agree that You will be solely responsible for all goods and services offered at and sold through Your Website, all materials used or displayed at Your Website, and all acts or omissions that involve the Eyewear Module or in connection with Your Account. You agree that Your useof the Eyewear Module shall be in compliance with these TOS and any applicable laws and regulations at all times including those concerning the sale of prescription eyewear from state to state and for paying any and all sales taxes or other taxes of any kind.
1.1.2.Authority to Sell Eyewear. If You use the Eyewear Module You represent and warrant that You have full power and authority under all relevant laws and regulations: (a) to offer and sell the goods and services offered at Your Website, including, but not limited to, holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered at Your Website; (b) to copy and display the materials used or displayed at the Website; and (c) to provide for credit card payment and delivery of goods or services as specified at the Website.
1.1.3.Right to Terminate Use. In addition to any other termination rights contained in these TOS, Baystone reserves the right to terminate Your Website, or refuse to host or continue to host any website which it believes, in its sole discretion: (a) has caused a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill customer orders; or (b) has become the subject of a government complaint or investigation.
11. DOMAIN NAME SERVICES
Registration. Should You elect to use Baystone’s domain name registration Service, we will register a second level domain name on Your behalf if such domain name is available for registration. Baystone acts only as an intermediary between You and the organization providing the domain name, and has no influence over the assignment of domain names. The registration of Your domain name is subject to the terms and conditions of such organization, and is also subject to the terms of the Uniform Domain Name Dispute Resolution Policy (“UDRP”) You agree that, if the registration or reservation of Your domain name is challenged by a third party, You will be subject to the provisions of the UDRP in effect at the time of the dispute. Baystone assumes no liability in the event the domain name is unavailable or otherwise not assigned to You, and does not warrant or guarantee that assigned domain names do not infringe the rights of third parties, or that You will retain the rights to that domain name for any period of time. Upon payment in full of any and all registration fees, Baystone shall not own or otherwise legally control any domain name registered on Your behalf. You agree that You are responsible for any and all fees and costs related to the registration of Your domain name, and so long as You have transferred your domain administration to Baystone, You authorize Baystone to debit Your Account for any such fees and costs. Unless terminated, at the end of each term Your domain name will automatically renew for an additional term, and You further authorize Baystone to debit Your Account for the renewal fee associated with such renewal term and any related fees or charges. Should You fail to honor such debit, Baystone may, in its sole discretion, release, cancel, or otherwise dispose of or utilize Your domain name as it sees fit, with no obligation to You whatsoever. Further, upon termination of the Services, You agree and acknowledge that Your domain name registration may lapse should You fail to continue to pay applicable fees to the registrar of Your domain name.
Transfer. Baystone will accept the transfer of domain names from other registrars, provided however, that You will be required to pay for an initial year of registration fees upon transfer. Domain names which have been prepaid for a period of more than one year but with fewer than nine years remaining may also be transferred, subject to the payment of an initial year of registration fees. An additional year will be added on to the remaining term of any transferred domain. Domain names with more than nine years remaining on the registration period may not be transferred. Upon the expiration of the one-year extension You will be charged an annual renewal fee for any subsequent renewal period. By requesting the transfer of Your domain name You authorize Baystone to debit Your Account for the one-year registration fee and any related fees or charges.
No Infringement. You represent and warrant that Your domain name does not infringe the copyright, trademark, or any other intellectual property rights of any third party and that Your domain name is otherwise in compliance with these TOS.
Claims and Compliance. You shall inform Baystone of any claim or potential claim against Your domain name, including but not limited to the initiation of a dispute under the UDRP, within five days of notification of same. Should You lose Your right to use a domain name which is used in connection with the Services, whether through expiration of the domain name, judicial decree, administrative decisions of the UDRP or otherwise, You agree to inform Baystone immediately of the party to whom the domain name is to be transferred and You authorize Baystone to take any and all action necessary to effect such transfer. Baystone may suspend performance under or terminate this TOS, cease transmission of data associated with Your domain name, permanently remove Your Website and Your User Content from our equipment, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with the UDRP or relevant laws if it is informed or otherwise believes, in its sole discretion, that Your domain name violates the intellectual property rights of any third party or is otherwise the subject of a dispute.
Redirection. In the event You do not transfer the administration of an existing domain to Baystone, You shall be responsible for redirecting said domain to the address for Your Site on the Baystone Equipment.
1.1.4.Content. You acknowledge and agree that Baystone may associate any data of any kind with the domain name associated with Your Web Site or any uniform resource locator incorporating said domain name until you replace such data with Your Site, at such times Your Web Site is not available, and upon termination of the hosting entity responsibility with Your domain name registry. Notwithstanding the generality of the foregoing statement, Baystone may cause your domain to result in a “Webpage cannot be found” or “404 error page”.
12. PRESS RELEASES
As part of the Services, we may prepare press releases on your behalf to be distributed to media outlets. We provide no warranty with respect to the further distribution of the information contained in such press release by such media outles. You agree and acknowledge that such press releases are Baystone Content.
13. MONITORING OF CONTENT
Baystone does not pre-screen User Content. However, Baystone reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with these TOS. Baystone may remove any item of User Content and/or terminate a User’s access to this Site (including Your Website) or the Services for posting or publishing any material in violation of these TOS, or for otherwise violating these TOS (as determined by Baystone in its sole and absolute discretion), at any time and without prior notice.
14. SPAM POLICY
- Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have already "opted-in" to receive messages from the sender specifically. They must include a legitimate return address and reply-to address, the sender's physical address, and an opt-out method in the footer of the email or fax. Upon request by Baystone, conclusive proof of opt-in may be required for an email address or fax number.
Baystone reserves the right to require changes, disable or terminate Your Website, Account, database, or other component that does not comply with this spam policy, at its sole discretion. Baystone also reserves the right to make any such modifications in an emergency at its sole discretion.
15. HIPAA. Both parties agree to operate their businesses in a manner, and to enter into mutually agreeable amendments to this TOS, as necessary to permit both parties to comply with its obligations under the Health Insurance Portability and Accountability Act of 1996, Subtitle F, Public Law 104-191, relating to the privacy and security of confidential health information, and any final regulations or rules promulgated by the U.S. Department of Health and Human Services thereunder and the Health Information Technology for Economic and Clinical Health Act, found in Title XIII of the American Recovery and Reinvestment Act of 2009, effective February 17, 2009 (collectively, “HIPAA”).
16. TAXES. You represent and warrant that all applicable taxes have been paid or will be paid in full by You when due regarding all businesses and employees associated with your useof the Baystone Services and that no taxing authorities shall have any claim against Baystone or any persons affiliated therewith for the payment of such taxes.
17. ADDITIONAL RESERVATION OF RIGHTS
Baystone expressly reserves the right to deny, cancel, discontinue, terminate, suspend, lock, edit, disclose, monitor or modify access to (or control of) any Account or Services for any reason (as determined by Baystone in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by Baystone in offering or delivering any Service, (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry, (iii) in connection with a revision to Baystone’s business model and service offerings, (iv) to assist with our fraud and abuse detection and prevention efforts, (v) to comply with applicable local, state, national and international laws, rules and regulations, (vi) to comply with requests of law enforcement, including subpoena requests, (vii) to comply with any dispute resolution process, (viii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, and (ix) to avoid any civil or criminal liability on the part of Baystone, its officers, directors, employees and agents, as well as our affiliates.
18. SPACE AND BANDWIDTH USAGE
You are allocated space and a monthly bandwidth allowance. This allowance varies depending on the hosting package You purchase. Should Your Account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until You upgrade to a higher level of package, terminate the account and/or charge You an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month.
20. TERM AND TERMINATION
1.1.5.Term. Unless sooner terminated pursuant to other terms of this TOS, and except as otherwise provided in this TOS, this TOS shall be for an initial termof one month and shall be automatically renewed each month for additional one month periods unless and until sooner terminated; provided, however, in some instances the initial term of a Service may be in excess of one month (“Extended Term Packages. Any and all service fees for Extended Term Packages are due and payable for the entire initial term thereof, and should you terminate, attempt to terminate, or otherwise default on this TOS prior to the end of the initial term you authorize Baystone to charge your credit card on file with Your Account for all such fees and charges for the remainder of such initial term.
1.1.6.Early Termination. You or Baystone may terminate this TOS at any time for any reason, with or without cause, upon fourteen (14) days' written notice. Baystone may suspend performance under or terminate this TOS and cease transmission of data associated with Your Web Site immediately and without notice as provided for in this TOS, including, without limitation, if (i) Baystone in its sole discretion, deems that You have breached any part of this TOS, including, without limitation, any warranty or obligation, (ii) if Your credit card provider refuses payment of fees or charges or You refuse authorization for same, or (iii) if payment for the Services is more than fifteen (15) days overdue.
Effects of Termination. You further agree that in the event that Baystone believes, in its sole discretion, that You have breached any provisions of this TOS by publishing, distributing, storing or allowing material prohibited hereunder through Your use of the Services, then Baystone may without any liability to you, and in addition to any other remedies, erase or purge such materials from our equipment without prior notice to You. After termination, you will no longer have access to Your Website, Your User Content, Your Submissions and Your Account, including but not limited to e-mails, log files, databases, or other data files associated with your Account may be deleted. Baystone shall not be liable for any such deleted information or content. Upon termination of this TOS for any reason whatsoever, You shall cease all use of the Services and any rights or licenses granted to you by Baystone shall be immediately terminated and revoked, and Your further of use thereof shall be in violation of Baystone and its licensors’ intellectual property rights and is legally actionable; provided, however, You shall continue to have a revocable limited license to use any Baystone Content related to You existing on a Third Party Site solely (i) to the extent removal from the Third Party Site is not practicable, and (ii) in the pre-existing manner of such use on the Third Party Site.
21. TRADEMARK AND/OR COPYRIGHT CLAIMS
In accordance with the Digital Millennium Copyright Act (“DMCA”), Baystone has adopted a policy that provides for termination of websites hosted by Baystone that are found to infringe on copyrights, trademarks or other intellectual property rights of third parties (each an “IP Rights Holder”) If a IP Rights Holder believes that there has been a violation his, her or its intellectual property that is hosted by Baystone, and the IP Rights Holder wants Baystone to remove the website or disable the material in question, Baystone will remove the website or disable the material if the IP Rights Holder provides us with all of the following information:
- A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. Identification of the copyrighted work that is claimed is being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.
- Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit us to locate the material.
- Information reasonably sufficient to permit us to contact the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.
- A statement that the person giving the notification has a good faith belief that use of the material in the manner complained of is not authorized by the intellectual property owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. Email DMCA reports to [email protected] .
- IMPORTANT NOTE: IN THE EVENT YOU SEND US A NOTICE OF ANY KIND VIA EMAIL AND DO NOT RECEIVE A RESPONSE FROM US, PLEASE SUBMIT A DUPLICATE COPY VIA THE ADDRESS SET FORTH IN THE “CONTACT US” SECTION BELOW. DUE TO THE VAGARIES OF THE INTERNET, AND EMAIL COMMUNICATION IN PARTICULAR, INCLUDING WITHOUT LIMITATION THE BURDENS OF SPAM AND THE OCCASIONAL, UNINTENDED EFFECTS OF SPAM FILTERS, SENDING AN ALTERNATE FORM OF NOTICE (VIA PAPER AND/OR FAX), WILL HELP ASSURE THAT YOUR NOTICE WILL BE RECEIVED BY US AND ACTED ON IN A TIMELY MANNER.
23. LINKS TO THIRD-PARTY WEBSITES
This Site and the Services may contain links to third-party websites that are not owned or controlled by Baystone. Baystone assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. In addition, Baystone does not censor or edit the content of any third-party websites. By using this Site or the Services, You expressly release Baystone from any and all liability arising from Your use of any third-party website or the use of a third party website by Baystone on Your behalf. Accordingly, Baystone encourages You to be aware when You leave this Site or the Services and to review the terms and conditions, privacy policies, and other governing documents of each other website that You may visit.
24. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND THE SERVICES SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. BAYSTONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BAYSTONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) THE SERVICES BEING UNINTERRUPTED OR ERROR FREE, (V) ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SITE OR SERVICES, (VI) THE AVAILABILITY, QUALITY, OR QUANTITY OF THE SITE OR SERVICES, (VII) THE CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE SERVICES BEING FREE OF VIRUSES OR OTHER HARMFUL ROUTINES, AND (IX) THE POTENTIAL VOLUME OF USE OR PATRONAGE OF YOUR SITE OR ANY OTHER PERSON’S WEB SITE, AND BAYSTONE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY BAYSTONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES) WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TOS OR YOUR USE OF THIS SITE OR THE SERVICES.
25. LIMITATION OF LIABILITY
IN NO EVENT SHALL BAYSTONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO ORUSE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT BAYSTONE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL BAYSTONE’S TOTAL AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CAUSE OF ACTION IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TOS OR YOUR USE OF THIS SITE OR THE SERVICES.
You agree to protect, defend, indemnify and hold harmless Baystone and its officers, directors, employees, and agents, and their respective affiliates, from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Baystone directly or indirectly arising from (i) Your use of and access to this Site or the Services, including Your Website; (ii) Your violation of any provision of these TOS or the policies or agreements which are incorporated herein, including a breach of any of Your obligations, representations or warranties; (iii) use of Your User Content or User Submissions submitted through Your Account or on to Your Website; and (iv) Your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of these TOS or Your use of this Site or the Services.
27. CONFIDENTIAL INFORMATION
Non-Disclosure. You agree that all Confidential Information (as defined below) shall be the sole property of Baystone. You agree not to, directly or indirectly, use, publish, disseminate or disclose to any third party any Confidential Information, and will use all means necessary to prevent any such prohibited use, publishing, dissemination or disclosure. Without limiting the generality of the foregoing, You agree to indemnify Baystoneand its affiliates from any loss, cost, damage or expense incurred as a result of the unauthorized, use, publishing, dissemination or disclosure of Confidential Information by You.
Definition. “Confidential Information” means Baystone’s confidential, proprietary or competitively sensitive information (irrespective of its form), including, without limitation, information relating to Baystone’s end users, customers, prospective customers (including lists of customers and prospective customers), methods of operation, engineering methods and processes (including any information which may be obtained by a party by reverse engineering, decompiling or examining any software or hardware provided by the other party under this TOS), programs and databases, intellectual property, patents and designs, rates, billing procedures, vendors and suppliers, business methods, finances, management, or any other business information relating to such party (whether constituting a trade secret or proprietary or otherwise), all of which shall be deemed “trade secrets” under applicable laws; provided, however, that Confidential Information does not include information that (i) is known to the other party prior to receipt from the disclosing party hereunder, which knowledge shall be evidenced by written records, (ii) is or becomes in the public domain through no breach of this TOS, (iii) is received from a third party without breach of any obligation of confidentiality, or (iv) is independently developed by the Receiving Party. .
Legal Requirements. If You are requested or required to disclose any of the Confidential Information by court order, You shall, to the extent not precluded by law, provide prompt notice of such court order to Baystone so Baystone may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this TOS. If Baystoneis not successful in obtaining a protective order or other appropriate remedy and You are, in the reasonable written opinion of Your counsel, legally compelled to disclose such Confidential Information, or if we waive compliance with this provision of the TOS in writing, You may disclose, without liability hereunder, such Confidential Information in accordance with, but solely to the extent necessary, in the reasonable written opinion of Your counsel, to comply with the legal obligation.
Disposition of Confidential Information on Termination or Expiration. Upon termination or expiration of this TOS or upon the Baystone’s written request, You will return to Baystone all copies of Confidential Information already in Your possession or control, including without limitation, any of Your documents that include Confidential Information. Alternatively, with the our prior written consent, You may destroy such Confidential Information, in which case Your officer will certify in writing to the Company that all such Confidential Information has been so destroyed.
28. SUCCESSORS AND ASSIGNS
These TOS shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. You may not assign this TOS to a third party without the express prior written consent of Baystone.
29. THIRD PARTY CONTRACTORS
You acknowledge and agree that Baystone may, from time to time, engage third party affiliates and contractors to provide the Services and that Baystone shall not be liable for any act or omission of such third party that results in injury to You or others.
30. International Matters
The Site is solely directed to residents of the United States. Those who choose to access the Site or use the Services from outside of the United States do so at their own risk and may be subject to securities and tax regulations within their applicable jurisdictions that are not addressed on this Site. You agree to comply with all local rules regarding online conduct, including all laws, rules, codes and regulations of the country in which you reside and the country from which you access the Site. In addition, you agree to comply with all applicable laws, rules, codes and regulations regarding the transmission of technical data exported from the United States, including those of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). You shall not export or re-export, or allow the export or re-export of, the Services in violation of any U.S. Export Laws. None of the Services may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using this Site and the Services, You agree to the foregoing and represent and warrant that You are not a national or resident of, located in, or under the control of, any restricted country; and You are not on any denied parties list; and You agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If You access this Site or the Services from other countries or jurisdictions, You do so on Your own initiative and You are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, You shall not access this Site or the Services. The obligations under this section shall survive any termination or expiration of these TOS or Your use of this Site or the Services.
31. COMPLIANCE WITH LOCAL LAWS
Baystone makes no representation or warranty that the content available on this Site or the Services are appropriate in every country or jurisdiction, and access to this Site or the Services from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services are responsible for compliance with all local laws, rules and regulations.
32. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF TRIAL BY JURY
These TOS shall be governed by and construed in accordance with the federal law of the United States and the state law of New York, whichever is applicable, without regard to conflict of laws principles. You agree that any action relating to or arising out of these TOS shall be brought in the state or federal courts of Nassau County, New York, and You hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) jurisdiction and venue in the state and federal courts of Nassau County, New York. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of these TOS.
33. STATUTE OF LIMITATIONS
You agree that regardless of any statute or law to the contrary, any claim or cause of action You may or possible could have against Baystone arising out of or related to use of the Service or these TOS must be filed within one year after such claim or cause of action arose or be forever barred.
34. FORCE MAJEURE
Baystone shall not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes, work slow-downs or other labor-related activity, or an inability to obtain necessary equipment or services.
35. STATUS OF PARTIES
This TOS shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the parties; nor will either Party hold itself out as an agent, partner, or joint venture party of the other party. Both parties shall be, and shall act as, independent contractors. Neither party shall have authority to create any obligation for the other Party,except to the extent expressly stated herein. Baystone shall have no direct financial or other interest in, nor in any way “own” any online “store” or other online venture pertaining to your use of the Baystone Services or Baystone’s Equipment. Baystone’s relationship to you shall be restricted to matters pertaining to the provision of the Baystone Services as set forth in this TOS.
36. TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of these TOS are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in these TOS shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of these TOS to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of these TOS shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
The failure of Baystone to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision.
38. CONTACT INFORMATION
If You have any questions about these TOS, please contact us by email or regular mail at the following address:
Baystone Media Inc.
99 Jericho Turnpike, Suite 203
Jericho, New York 11753
39. ENTIRE AGREEMENT
Except as provided by an End-User License Agreement or other written agreement with Baystone, these TOS constitute the entire agreement between You and Baystone with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.