Website Terms and Conditions

Last Updated: September 10, 2012

Welcome to http://byndlabs.com (the “Site”). This Site is intended to provide information about and access to the Bynd products and services. It allows you to interact with us and provides you the opportunity to contact us directly. References to “we,” “our,” “us”, “Bynd” or “Bynd Labs” herein refer to Tomcoh Commerce, Inc., a California corporation, and our affiliates, subsidiaries, service providers and designees as deemed appropriate by us.  To the extent that you or your organization acquires Bynd products or services under a separate agreement (e.g., subscription agreement, clickwrap, etc.), your use of such products and services will be governed by such other agreement and not these Terms of Use; instead, these Terms of Use apply to your access and use of the Site only.

Compliance with Terms and Eligibility

By accessing this Site, you are agreeing to these Terms of Use, our Privacy Policy and our Acceptable Use Policy (each of which is found at www.byndlabs.com), as well as any other legal notices, terms and policies on this Site (collectively, the “Terms”), all of which are expressly incorporated herein by this reference.

You agree to use the Site only in accordance with the Terms, whether you are simply browsing the Site (a “Visitor”) or you have registered with us on the Site (a “Registrant”). For purposes of these Terms of Use, “User” means a “Visitor” or a “Registrant”.  If you do not agree with the Terms, do not use this Site or any of its features. If you register to become a Registrant, you will be required to indicate your acceptance to these Terms during the registration process.

Use of the Site and its features and registration to be a Registrant (“Registration”) is void where prohibited. If you are under 18, you may use the Site only with involvement of a parent or guardian.

Amendment

We may amend or terminate any Terms at any time and such amendment or termination will be effective at the time we post the revised Terms on the Site. The date of the most recent update of these Terms of Use will be as set forth above. Each time you use the Site you should visit and review the then current Terms that apply to your transactions and use of this Site. Your continued use of the Site after we have posted revised Terms signifies your acceptance of such revised Terms. If you are dissatisfied with the Site, its content or any Terms (including as modified), you agree that your sole and exclusive remedy is to discontinue using the Site. The Terms are the entire agreement between you and Bynd with respect to your use of the Site; provided, that additional terms and conditions will apply with respect to your use of Bynd products and services (e.g., subscription agreement).

Registration Information

By becoming a Registrant, you represent and warrant that (a) all registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. Our collection and use of any information you provide to us in connection with your Registration is subject to the Terms including, without limitation, our Privacy Policy located at www.byndlabs.com/privacy-policy/.

Term

The Terms, as may be revised from time to time, shall remain in full force and effect while you use the Site or are a Registrant and thereafter. You may terminate your Registration at any time, for any reason, by notifying us in writing of your desire to terminate your Registration. We may terminate your Registration at any time, for any or no reason, with or without prior notice or explanation, and without liability. Even after your Registration is terminated, the Terms will remain in effect and you will remain bound by them.

Passwords

When you register to become a Registrant, you will be asked to choose a user name and password. You are solely responsible for maintaining the confidentiality of this information and for any and all use of your account. You are not permitted to allow anyone else to use your user name and password to log into the Site. You must notify us immediately if you suspect any unauthorized use of your account or access to your password.

Your Use of the Site

Users have a revocable, non-transferable, non-exclusive license to access this Site, to view information contained at this Site, and to interact with the Site. You agree not to use the Site for any unlawful purpose. Additionally, you will not in any way access, use or copy any portion of the Site or its features to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with Bynd’s products and services or to disparage Bynd or its products or services. You agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market or transfer the Site or any portion thereof or use it in any manner not expressly authorized by the Terms. You agree not to copy, reverse engineer, translate, port, modify or make derivative works of any portion of the Site. Tampering with the Site, misrepresenting the identity or age of a user, using buying agents or conducting fraudulent activities on the Site are prohibited.

User Content

Generally

We may, but are not obligated to, allow you to upload content for display on the Site. This may be in the form of responses to blog posts, participation in support forums or other discussion threads and other through other means. If we allow this feature, please choose carefully the information you post on the Site, provide to other Users and/or otherwise make available to us and through the Site. Your content may not include any form of prohibited content, as outlined below. Despite this prohibition, information, materials, products or services provided by other Users (for instance, in their profile or displayed on the Site in areas in which users can post content) may, in whole or in part, be unauthorized, impermissible or otherwise violate the Terms, and we assume no responsibility or liability for this material. As we state in more detail below, your use of the Site and its content is at your own risk. If you become aware of misuse of the Site or its features by any person, please contact us.

We reserve the right, in our sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to deny, restrict, suspend or terminate your access to all or any part of the Site at any time, for any or no reason, with or without prior notice or explanation, and without liability. We expressly reserve the right to remove your profile and/or deny, restrict, suspend or terminate your access to all or any part of the Site if we determine, in our sole discretion, that you have violated the Terms, pose a threat to us, our suppliers and/or our Users or for any other purpose we determine in our sole discretion.

Proprietary Rights

Bynd does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on the Site (if applicable). After posting your Content to the Site, you continue to retain any such rights that you may have in your Content, subject to the license herein.

By displaying, publishing or uploading Content on the Site, or otherwise submitting Content to us (collectively, “posting”), you hereby grant to Bynd and its affiliates a irrevocable, perpetual, worldwide, royalty-free, non-exclusive license to use, modify, delete from, add to, create derivative works of, publicly perform, publicly display, reproduce and distribute (and to sublicense the foregoing rights through multiple tiers of licensees) such Content on or through the Site for any reason and in connection with advertising and promoting the Site (including, for example, through screen shots and blogs) and/or our products in any media formats and through any media channels now existing or developed in the future. From time to time, we may remove Content from the Site, permanently or temporarily, provided that even if we do remove such Content from the Site, we shall have no obligation to cease our other uses of the Content as permitted above.

You represent and warrant that: (i) you own the Content posted by you on or through the Site or otherwise have the right to grant the licenses set forth above, and (ii) the posting of your Content on or through the Site does not violate the privacy rights, publicity rights, contract rights, intellectual property or any other rights of any person or entity. In furtherance of the foregoing, you agree that you will not post Content that violates or is not in compliance with our Acceptable Use Policy. You agree to be fully responsible for and to pay any and all royalties, fees and any other monies owing any person or entity by reason of any Content posted by you.

The Site may contain Content provided by Bynd (including third party content posted or displayed by Bynd and not by a User), including, without limitation, text, images and logos (“Bynd Content”). Bynd Content is protected by copyright, trademark, patent, trade secret and other laws and, as between you and Bynd, Bynd owns and retains all rights in the Bynd Content and the features and functionality of the Site. Bynd hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Bynd Content (excluding any software code) solely for your personal use in connection with viewing the Site. Except as provided within the Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display or sell any Content appearing on or through the Site. Your rights with respect to any Bynd Content included in a Bynd product or service covered by a separate license agreement will be as set forth in such agreement.

Content Posted

Bynd may reject, refuse to post or delete any Content for any or no reason, including, without limitation, Content that in the sole judgment of Bynd violates the Terms, including our Privacy Policy and/or our Acceptable Use Policy. We assume no responsibility for monitoring the Site for inappropriate Content or conduct. If at any time Bynd chooses, in its sole discretion, to monitor the Site, we nonetheless assume no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.

You are solely responsible for your use of the Site, the Content that you post on or through the Site, and any material or information that you transmit to other Users and for your interactions with other Users.

Protection of Intellectual Property Rights

Bynd respects the intellectual property of others and requires that our Users do the same. Without limiting the terms of our Acceptable Use Policy, you may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. We reserve the right to terminate the Registration of anyone we suspect to be in violation of this paragraph.

If you believe that your work has been copied in a way that constitutes copyright infringement or your intellectual property rights have been otherwise violated, please provide us with the following information:

  1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
  3. a description of where the material that you claim is infringing is located on the Site;
  4. your address, telephone number, and email address;
  5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

 

Bynd’s Copyright Agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:

Tomcoh Commerce, Inc.

Attn: Legal Support, DMCA Notices

122 2nd Ave, Suite 214

San Mateo, CA 94401

 Disclaimers

Bynd is not responsible for and makes no warranties, express or implied, as to any content on the Site, including, without limitation with respect to the accuracy and reliability of the Bynd Content, User Content or other Content posted on or through the Site, whether caused by us, by Users, by any of the equipment or programming associated with or utilized by the Site, or otherwise. The User Content does not necessarily reflect the opinions or policies of Bynd. Profiles and third party applications created and posted by Registrants on the Site may contain links to other websites. Bynd is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are not necessarily investigated, monitored or checked for accuracy or completeness by Bynd. Inclusion of any linked website on the Site does not imply approval or endorsement of the linked website by Bynd. When you access these third party sites, you do so at your own risk. Bynd takes no responsibility for third party advertisements or third party applications that are posted on or through the Site, nor does it take any responsibility for the goods or services provided by its advertisers. Bynd is not responsible for the conduct, whether online or offline, of any User of the Site including, without limitation, any Content posted by any User. Bynd assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Registrant communication. Bynd is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any portion of the Site or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Site. Under no circumstances shall Bynd be responsible for any loss or damage, including personal injury or death, resulting from use of the Site, attendance at a Bynd event, from any User Content posted on or through the Site, or from the conduct of any Users, whether online or offline. Additionally, Bynd shall have no liability for any viruses or anything beyond our control. We are not responsible for any damage to your computer, software, modem, telephone or other property resulting from your use of the Site. We will not be liable to you if you are unable to access Content or other materials through the Site.

Some states do not allow the exclusion or limitation of certain warranties and/or liabilities, so certain of the above limitations or exclusions may not apply to you.

This Site is provided “AS-IS” without warranty of any kind, and Bynd hereby expressly disclaims any express or implied warranties, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Bynd cannot guarantee and does not promise any specific results from use of the Site.

Limitations of Our Liability

IN NO EVENT WILL BYND BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES, HOWEVER THEY MAY ARISE, WHETHER IN AN ACTION OF BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THIS SITE, IRRESPECTIVE OF WHETHER MOMENTUM HAS BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES.  IF THE WARRANTY EXCLUSIONS OR LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS ARE FOR ANY REASON HELD UNENFORCEABLE OR INAPPLICABLE, YOU AGREE THAT OUR AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100).

IN THE EVENT YOU HAVE ANY DISPUTE WITH ONE OR MORE THIRD PARTIES AS A RESULT OF YOUR USE OF THE WEBSITE, CONTENT OR SERVICES, OR ARE IN ANY WAY DAMAGED AS A RESULT OF ANY THIRD PARTY IN CONNECTION THEREWITH, YOU HEREBY RELEASE AND COVENANT NOT TO SUE OR OTHERWISE MAKE A CLAIM, DEMAND OR FILE ANY LEGAL ACTION OR INSTITUTE ANY LEGAL OR REGULATORY PROCEEDINGS AGAINST MOMENTUM, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS AND REPRESENTATIVES FROM, FOR ANY CLAIMS, ACTIONS, DEMANDS OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL), OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHETHER FORESEEABLE OR NOT, DISCLOSED OR UNDISCLOSED.

Our Service Providers

We may use one or more third party service providers to manage or operate parts of the Site. In such cases, each such service provider is also included in the terms “we” and “us” for purposes of the Terms.

Indemnification

You agree to indemnify and hold Bynd, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, cost, expense, claim, or demand, including without limitation, reasonable attorneys’ fees, due or relating to or arising out of your use of the Site in violation of the Terms and/or arising from a breach of the Terms and/or any breach of your representations and warranties set forth in the Terms and/or arising out of or relating to any Content that you post.

Copyright Notice

Unless otherwise indicated, all content and materials on this Site, including graphic images, buttons and text, are the exclusive property of Bynd. All rights are reserved by Momentum.  Except as permitted herein, these items may not be copied, reproduced, downloaded, disseminated, published, or transferred in any form or by any means, except with the prior written permission of Bynd.

Trademark Notice

There are a number of proprietary logos, trademarks and service marks (collectively “Trademarks”) displayed on the Site and via the Services. Unless otherwise indicated, all such Trademarks (whether registered or not registered) are the exclusive property of Bynd. By displaying any Trademarks, Bynd is not granting you a license or the right to use any of the Trademarks nor should anything contained in any Services be construed or interpreted as granting you by implication or otherwise a license or any right to use any of the Trademarks without the prior express written permission of Bynd.  Any other company, product and service names mentioned on the Site may be trademarks or service marks of third parties.

Miscellaneous

The Terms will be construed, and their performance enforced, under the laws of California without reference to choice of law principles. Any dispute relating to the Terms or the Site may be litigated only in a court having jurisdiction and venue in the County of San Francisco, California for state court causes of action and in the Northern District of California for federal court causes of action. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms.  Notwithstanding the foregoing, except with respect to enforcing claims for injunctive or equitable relief, any dispute, claim or controversy arising from or related in any way to this Agreement or the interpretation, application, breach, termination or validity thereof will be submitted for resolution by binding arbitration in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS.  The arbitration will be held in County of San Francisco, California.  Judgment on any award in arbitration may be entered in any court of competent jurisdiction.  Notwithstanding the above, each party shall have recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief.  IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.  To the extent applicable, in the event of any lawsuit between the parties arising out of or related to this Agreement, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.

If any provision of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including without limitation, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provisions will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in full force and effect.

These Terms constitute the entire agreement between you and Momentum with respect to the use of this Site and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Momentum with respect to this Site. A printed version of these Terms and of any notice given in electronic form shall be admissible in any judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Any rights not expressly granted herein are reserved.

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