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This Terms and Conditions Agreement, also called Terms of Service Agreement (“Agreement”), is made by and between Baystream Corporation, with head office located at 1200 McGill College, Suite 1100, Montreal, QC, H3B 4G7, Canada (“We” or “Us”), and you (“You”).
WHEREAS We are the owner and operators of a number of web sites and applications available at domain https://www.baymain.com and its sub-domains (“Site”) that We market directly and indirectly by means of our Site and other means ; and
WHEREAS You wish to utilize our Services, as defined in Section 1.6, and We wish to provide these to You, pursuant to the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual undertakings herein contained, the parties agree as follows:
By accepting this Agreement, either by physically or by digitally signing this Agreement or by executing a Purchase Order that references this Agreement, or by visiting the Site, You agree to the terms of this Agreement. If You are entering this Agreement on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its Affiliates to these Terms and Conditions, in which case the terms “You” or “Your” shall refer to such entity and its Affiliates.
This Agreement was last updated on May 8, 2015.
1.1. “Account” means the account opened under Your subscribed name.
1.2. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3. “Malicious Code” means viruses, worms, time bombs, Trojans and other harmful or malicious code, files, scripts, agents or programs.
1.4. “Purchase Order” means the document or contract or agreement or Web Form that confirms Your agreement to purchase our services, including addenda thereto, that are entered into between You and Us from time to time. Purchase Orders shall become effective when agreed to by both You and Us or when submitted via a Form found on Our Site or by Mail or Fax or electronic Mail (email). All Purchase Orders shall be deemed incorporated herein by reference.
1.5. “Basic Support” means the support services We provide to You at no extra charge which includes using Our commercially reasonable efforts to promptly address and resolve Application or Service Errors.
1.6. “Application or Service” means separately the Site, Web-based and Desktop-based applications, IAAS application, but excludes Third Party Systems, as well as the Contract, Consulting and Manpower Services that we may provide to You, further described under section 3.2 called Description of Services.
1.7. “Application or Service Errors” means any interruption in the availability of any Service or Application or errors in the execution of any Service or Application.
1.8. “Third Party” means entities other than Baystream Corporation or its Affiliates.
1.9. “Third Party Systems” means applications or services that are owned or licensed by any Third Party and whose use and enjoyment is governed by agreements between You and that Third Party.
1.10. “Users” means individuals who use the Services.
1.11. “We,” “Us” or “Our” means Baystream Corporation directly or through any of its Affiliates.
1.12. “You” or “Your” means the company or other legal entity, including yourself, for which You are accepting this Agreement and Affiliates of that company or entity.
1.13. “Your Data” means all electronic data or information submitted by You to Us directly or though the use of the Services, including all text, photographs, caricatures, illustrations, designs, charts, graphs, icons, articles, audio clips, video clips, and other materials posted, emailed, transmitted, created, or otherwise utilized by You or Your Users while interacting with the Application or Service.
2) FREE TRIAL
2.1. If You register on our Site for a Free Trial, We will make all or part of the Services available to You on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which you registered or are registering to use the applicable Application or Service or (b) the start date of any Purchase Order for a paid subscription to the Services. Additional terms and conditions may appear on the Free Trial registration web page within the Site. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.2. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. NOTWITHSTANDING SECTION 10 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3) THE SERVICES
3.1. Provision of Services. We shall make the Services available to You non-exclusively pursuant to this Agreement. Except as may be otherwise agreed in writing, You agree that any purchases You may make for Services here-under are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. Description of Services. The Services includes a number of web sites that deliver and make available to You both Systems that were developed and are owned by Baystream Corporation and Third Party Systems, that encompass a wide variety of functionality including, but not limited to, the delivery of so called Infrastructure as a Service via providers such as Amazon Web Services, Microsoft Azure, among others as well as, Document Management, Database, Application Development, Enterprise Resource Planning (ERP), Customer Relationship Management (CRM), Accounting Systems, Backup and Disaster Recovery Systems, File Sync and Share Systems among others. In as much as the Services cause Third Party Systems to be made available to You, You are responsible for the maintenance and compliance to all agreements that apply to such Third Party Systems. The Services also include the provision of Maintenance and Support Services of all kinds including Training and System Administration, provided either online or in-house, directly by staff commissioned by Baystream Corporation.
4) USE OF THE SERVICES
4.1. Our Responsibilities. We shall: (i) provide to You Our Basic Support for the Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week except for: (a) planned downtime (of which We shall endeavor to provide prior notice). We shall use commercially reasonable best effort to ensure that such downtime interference to the Services will be as minimal as possible, whereby You acknowledge that We have no control for any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays. You also acknowledge that We provide the Applications and Services only in accordance with applicable laws and government regulations. We will endeavor to extend Basic Support to cover the use of Third Party Systems, but You acknowledge that We are dependent on the performance of such Third Parties and cannot be held accountable for their actions and performance.
4.2. Your Responsibilities. You shall (i) be responsible for compliance with this Agreement, (ii) be responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Us promptly of any such unauthorized access or use, (iv) be responsible for maintaining the security of the User names and passwords of Your Users using the Application or Service and notify Us promptly of any breach of security known or suspected by You, (v) use the Services only in accordance with applicable laws and government regulations, and (vi) be responsible for all activity under Your Account, including the activity of other Users who have been added to Your Account by You or by another User of the Account. You shall not (a) sell, resell, rent or lease the Services without a separate written valid agreement, (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third Party privacy rights (including any materials which are illegal, obscene, indecent, defamatory, incites racial or ethnic hatred, violates the rights of others, harms or threatens the safety of others or may otherwise constitute a breach of any applicable law), (c) use the Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Services or Third Party data contained therein, or (e) attempt to gain unauthorized access to the Services or their related systems or networks.
4.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, in as far as that Data is within our perusal and access. We shall not (a) modify Your Data unless otherwise required in order to provide the Services, (b) disclose Your Data except as compelled by law or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
4.4. Deletion of Your Data. If You become aware that any portion of Your Data or User activity violates this Agreement, You shall take all necessary action to delete such Data from the Services. We reserve the right to terminate or suspend Your use of the Services if the continued provision of Services would violate any law. We will cooperate with legal authorities and third parties in the investigation of alleged wrongdoing. We will endeavor to provide notice to You prior to suspension or termination of Your use of the Services, but may immediately suspend or terminate them in instances where Your continued use of the Services would have a material adverse effect on Us.
4.5. Non Material Modifications. Without limiting any other terms herein contained, We reserve the right in Our sole discretion to add, change, discontinue or otherwise modify non material elements and features to the Services at any time. We will post notifications regarding such changes on Our Site.
4.6. Your Applications and Code. If You, a Third Party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licencors under this Agreement in or to such applications or program code, including any intellectual property rights therein
5) FEES AND PAYMENT
5.1. User Fees. You shall pay all fees specified in all Purchase Orders or other fee-for-service Agreements that we may enter into with You.
5.2. Invoicing and Payment. If You provide credit card information via the Payment Gateway, You authorize the use of such credit card to effect payment. Such charges shall be made in accordance with the billing amounts and possibly also frequency stated in the applicable Purchase Order. If the Purchase Order specifies that payment will be by invoice, We will invoice You in advance and otherwise in accordance with the relevant Purchase Order. Unless otherwise stated in the Purchase Order, invoiced charges are due in advance of the provision of Application and Services, whereby a 30-day free trial is generally available. You are responsible for maintaining complete and accurate billing and contact information in the Application or Service and notifying Us of any changes to such information.
5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Purchase Orders on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment) above.
5.4. Collection Fee. In the event you fail to pay overdue charges, We may refer your account(s) to a Third Party for collection. You agree that if it becomes necessary for Us to refer your invoices to a Third Party for collection, We will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18% to cover the internal collection-related costs We have incurred on such invoices through and including the date on which We refer the invoices to such Third Party. To the extent permitted by law, you agree to pay Us any additional costs and fees We reasonably incur to collect amounts outstanding on your invoices.
5.5. Suspension of Service and Acceleration. If any amount owed by You under this or any other Agreement is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such Agreements so that all such obligations become immediately due and payable, and suspend your access to the Services until such amounts are paid in full. We will give you at least 7 days’ prior notice that Your account is overdue, in accordance with Section 16.1 (Manner of Giving Notice), before suspending your access to the Services.
5.7. Taxes. Unless otherwise stated, fees and amounts stated on Purchase Orders, do not include any value-added, sales, use or withholding taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.8. Currencies. Unless otherwise stated on Purchase Orders, all amounts are stated in United States Dollar currency.
5.9. Refunds. All purchases are final. Unless otherwise stated in writing on Purchase Orders, all charges are due in advance and no refunds can be made.
6) THIRD PARTY PROVIDERS
6.1. Use of Third Party Systems. As part of our service, we will enable the use and enjoyment and licensing of Third Party Systems. We do not warrant such Third Party Systems, whether or not they are designated by Us as “certified” or otherwise, except as specified in a Purchase Order.
6.2. Third Party Systems and Your Data. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from actions of any Third Party.
7) PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services and the Site and all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
7.3. Third Party Data. All title and intellectual property rights in and to any data of any Third Party which may be linked to or viewed in connection with the Application or Service is the property of the respective data owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement does not grant You any right to use such data except as allowed by such Third Party.
8.2. No Implied Rights. Except as expressly set forth herein, no license or other rights to Confidential Information are granted or implied hereby by either party.
9) MARKETING PUBLICATION
9.1. Press Releases. Joint press releases or other communications shall be mutually approved in advance by You and Us.
9.2. References. Unilateral references or other non-press related communications by one party such as social media, newsletters, websites, presentations, blogs and other methods that may be relevant from time to time, in which the name of the other party appears, shall not require the prior written consent of such other party.
10) WARRANTIES AND DISCLAIMERS
10.1. Our Warranties. We warrant that (i) to the best of Our knowledge, the Services and the Site do not infringe, violate or misappropriate any Third Party’s intellectual property (including copyrights, patents, trademarks, and trade secrets), privacy, moral, or other personal or proprietary rights and (ii) the Services shall perform materially in accordance with the features and functionalities, as set forth in the Site, (iii) Subject to Section 6 (Integration with Third Party Systems), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 12.1 (Indemnification by Us), Section 15.3 (Termination for Cause) and Section 15.4 (Refund or Payment upon Termination) below.
10.2. Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
11.1. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. EXCEPT AS OTHERWISE PROVIDED HEREIN, WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR NEEDS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR BE FREE FROM SOFTWARE ERRORS, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED.
12) MUTUAL INDEMNIFICATION
12.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a Third Party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a Third Party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability and You may not make any admissions or settlements without Our prior written consent); (c) provide to Us all reasonable assistance, at Our expense; and (d) provided that such infringement or misappropriation of any Third Party’s intellectual property rights is not resulting from: (i) Your or Your Users misuse of the Services or the Site; (ii) Your use of the Services together with a Third Party Application or integration; or (iii) from non-compliance by You or Your Users of the terms and conditions contained herein. In the event of a Claim against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under Section 10.1 (Our Warranties) above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
12.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a Third Party alleging that: (i) Your Data; or (ii) Your use of the Services in violation of this Agreement; or (iii) or the use by You of any Third Party’s integration , infringes or misappropriates the intellectual property rights of a Third Party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by Us in connection with any such Claim as a result of, or for any amounts paid by Us under a court-approved settlement of a Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability and We may not make any admissions or settlements without Your prior written consent); and (c) provide to You all reasonable assistance, at Your expense.
12.3. Exclusive Remedy. This Section (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
13) LIMITATION OF LIABILITY
13.1. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF, OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL FEES PAID TO US BY YOU FOR USE OF THE APPLICATIONS AND SERVICES DURING THE TWELVE MONTH PERIOD PRECEEDING THE CLAIM OF LIABILITY
14) EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES
14.1. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
15) TERM AND TERMINATION
15.1. Term of Agreement. This Agreement commences on the day you begin using the Services and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated and you cease using the Services.
15.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Purchase Order and continue for the subscription term specified therein. Except as otherwise specified in the applicable Purchase Order, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term
15.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
15.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Purchase Orders after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
15.5. Effect of Termination. Termination of this Agreement will result in the account being wound down and its access restricted for a period of 60 days, during which time You will be able to recover your Data, After such 60-day period, We shall have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control. Once deleted, this information cannot be recovered.
15.6. Surviving Provisions. Section 5 (Fees and Payment for Services), 7 (Proprietary Rights), 8 (Confidentiality), 12 (Mutual Indemnification), 13 (Limitation of Liability), 15.5 (Effect of Termination), and 16 (General Provisions) shall survive any termination or expiration of this Agreement.
16) GENERAL PROVISIONS
16.1 Shipping Policy. All Applications are delivered electronically and all Services are not subject to shipping. We do not directly provide goods that have to be physically delivered. Devices that are used in conjunction with any Application or Service provided by us, are delivered via a Distribution Organization such as Staples or SYNNEX or NewEgg and any Shipping Policy that applies in such cases, is the Shipping Policy of such Distributor.
16.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after sending by confirmed facsimile, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or claims for indemnification). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You. Notices to us shall be to one of the addresses detailed in the “contact us” section on our web site.
16.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
16.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.
16.5. No Third Party Beneficiaries. There are no Third Party beneficiaries to this Agreement.
16.6. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
16.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
16.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Purchase Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
16.8. Governing Law & Venue. This Agreement shall be governed by and construed in accordance with the laws of the laws of Canada and the State of Quebec, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between You and Us.
QUESTIONS ABOUT THIS AGREEMENT SHOULD BE SENT TO:
1200 McGill Drive, Suite 1100,
Montreal, QC, H3B 4G7, Canada
DISPUTES OR PRODUCT OR SERVICE INQUIRY
To contact us about any dispute or inquiry, use the number below and follow the instructions, or alternatively email us at the email address provided:
+1 (514) 543-4998