Effective Date: January 11, 2009
Beyondus Terms and Conditions
We at Beyondus, Inc. (“Beyondus”, “we” or “us”) welcome you to the Beyondus.com website (“Website”). The Website provides a service which permits users to edit their webpages designed by Beyondus through our Client Console and Drupal Content Management System (collectively referred to herein as the “CMS”). In order to use the Service, and particularly the CMS, you must agree to our terms and conditions (“Agreement”) before you may access and / or use the Website and Service.
Please read the Agreement carefully. By accessing and using the Website, you represent and warrant that you are more than thirteen (13) years of age and that, if you are under eighteen (18) years of age, your legal guardian has agreed to be bound with you by this Agreement. Otherwise, you represent and warrant that you are at least eighteen (18) years of age and that you have the right, authority and capacity to agree to this Agreement and to abide by all of its terms and conditions.
Registration: Registration with Beyondus is required in order to use the CMS. When you register, you agree to provide accurate, current and complete information about yourself (“Registration Information”). You also represent that we may rely on your Registration Information as being accurate, current and complete. All information collected is treated as described in our Privacy Policy, which can be found at: www.beyondus.com/privacy-policy/. Beyondus reserves the right to terminate your account for inaccurate, deceptive and / or incomplete Registration Information.
Username and Password: Beyondus will assign you a username and password. You will be able to change the username and password at your discretion. We reserve the right to refuse to grant you any username, in our sole discretion, if the username that you choose is invalid.
You agree that you are solely responsible for any and all activities that are conducted using your account. Please keep your username and password confidential at all times. You agree that you will not transfer, resell or allow any other third party to use your username and password to access the Website or CMS. If you have reason to believe that your username and / or password have become compromised, you agree to immediately notify Beyondus of such event by emailing Beyondus at . For security reasons, Beyondus will not release username or password information for any reason, other than to the applicable user, except as may be specifically required by law or court order.
Limited, Non Exclusive License: You are granted a non exclusive, non transferable, limited license to access and use the CMS and Website in accordance with the Agreement (“License”). This License may be revoked at any time at the sole discretion of Beyondus. The License permits you to access and use the CMS and Website for your own personal use. No part of the Website and / or CMS may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. The License specifically prohibits you from copying, emulating, renting, leasing, decompiling, transferring, disassembling, cloning, attempting to discover the source code for or reverse engineering the Website, CMS or any portion thereof.
In addition, your License specifically prohibits you from using any software, device or routine to interfere with the normal or proper working order of the Website or CMS. You may not engage in any action which creates an unreasonably large load on Beyondus’s infrastructure. Unauthorized access to the Website and / or CMS breaches this Agreement and is a violation of applicable law.
Proprietary Rights: All of the content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, services, computer coding and other matters related to the Website and CMS, are the sole property of Beyondus, except where specifically indicated. As such, they are protected to the maximum extent permitted by copyright laws, trademark laws, other proprietary laws (including, but not limited to, intellectual property and trade secret laws) and international treaties.
Any content displayed on the Website is protected by copyright law and international treaties as an original work, a compilation and a collective work. Any reproduction, modification, creation of derivative works from or distribution of the Website or the collective work and / or copying or in any way reproducing the Website or any portion thereof to any fixed medium for reproduction or redistribution is prohibited without the express written consent of Beyondus. Without limiting any of the specific rights or prohibitions herein, you agree not to reproduce, duplicate, copy, sell or exploit for any commercial purpose the CMS or Website or any aspect or portion thereof.
Online Content: When you sign up for the CMS, Beyondus places the content created for your website by Beyondus on the CMS. You are then able to edit, add information or make changes to such content. You agree that any changes, edits or other alterations to your website at that point are entirely your responsibility and you indemnify and hold Beyondus harmless from any and all damages that may occur to your content during such edits and alterations to your content.
Although Beyondus keeps a copy of the initial content that we upload to the CMS for you, we do not backup or keep copies of any of the additions, removals, edits or other changes that you have made to your content once it is on the CMS. We, therefore, recommend that you backup your work privately on a frequent basis so as not to lose any work that you have put into the content. You are solely responsible for backing up your content.
If you are a California resident, you agree to specifically waive California Civil Code Section 1542, which states that, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Privacy: Use of our Website and / or CMS is governed by our Privacy Policy, which can be found at: www.beyondus.com/privacy-policy/. Our Privacy Policy may change from time to time and without notice. Beyondus reserves the right to use your personally identifiable information in any manner consistent with our Privacy Policy. Use of the Services and / or Website signifies that you agree to subject your personally identifiable information to our Privacy Policy.
No SPAM Policy: You acknowledge and agree that sending unsolicited email advertisements, whether or not you are using our computer system to send such email, are expressly prohibited by this Agreement. Such actions may constitute a violation of federal and state law including, but not limited to, the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.) and the CAN-SPAM Act of 2003. Such misuse of the your content may subject the sender to civil and criminal penalties.
If we are informed that you are sending such email advertisements, we will terminate your account immediately and, if necessary, will take other steps to keep you from using the CMS.
Third-party Websites: The Website and / or Services may provide hyperlinks, banner advertisements, pop-ups and / or other online methods to redirect you to other third party Internet websites and / or resources. Because Beyondus has no control over such websites and / or resources, you hereby acknowledge and agree that Beyondus is not responsible for the availability of such third party websites and / or resources. Furthermore, Beyondus does not endorse, and is not responsible or liable for, any content, advertising, services, products and / or other materials at or available through such third party websites or resources, or for any damages and / or losses incurred through such websites or other resources.
Copyright/Trademark Claims: Beyondus respects the intellectual property rights of others, and we ask our users to do the same. Beyondus may, in appropriate circumstances and at its discretion, disable and / or terminate the accounts of users who may be infringing the intellectual property rights of others.
If you believe that your work has been copied in a way that constitutes copyright/trademark infringement, or your intellectual property rights have been otherwise violated, please provide Beyondus’s intellectual property agent with the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed or, in the case of multiple copyrighted works, a representative list of such works or of the trademark that is being allegedly infringed.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Beyondus to locate the material.
- Information reasonably sufficient to permit Beyondus to contact you, such as an address, telephone number and, if available, an e-mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the intellectual property’s owner, its agent or under applicable laws.
- A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Beyondus agent for notice of claims of intellectual property right infringement can be reached as follows:
By mail:
Intellectual Property Claims c/o Beyondus, Inc.
1623 Military Road, PMB 226
Niagra Falls, New York 14304
By email:
Indemnification: You agree to indemnify, defend and hold Beyondus, its parents, subsidiaries and affiliates, and each of their respective officers, executives, employees, owners, and authorized agents (“Covered Parties”), harmless from any and all loss, liability, claims and / or demands (including reasonable attorneys’ fees, costs and settlement amounts) made by any third party due to, or arising out of, your use of the Website, the CMS and / or arising from your breach of this Agreement.
WARRANTIES/LIMITATION OF LIABILITY: YOU EXPRESSLY AGREE THAT ACCESS AND / OR USE OF THE WEBSITE AND / OR CMS IS AT YOUR SOLE RISK. THE WEBSITE AND CMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR FITNESS FOR A PARTICULAR PURPOSE. THE WEBSITE AND / OR CMS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. BEYONDUS AND THE COVERED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF, OR INABILITY TO USE, THE WEBSITE AND / OR CMS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BEYONDUS AND THE COVERED PARTIES ARE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN BEYONDUS AND YOU. THE WEBSITE AND CMS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BEYONDUS THROUGH THE WEBSITE AND / OR CMS SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
BEYONDUS IS NOT RESPONSIBLE TO YOU AND / OR ANY THIRD PARTY, WITHOUT LIMITATION, FOR: 1) ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO OR ALTERATION OF, USER COMMUNICATIONS; 2) THE CONDUCT OF ANY USER WHETHER ONLINE OR OFFLINE INCLUDING, WITHOUT LIMITATION, ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR OTHER CONDUCT OF ANY OTHER PARTY; 3) ANY COMPUTER VIRUS OR OTHER MALICIOUS, DESTRUCTIVE OR CORRUPTING CODE, AGENT, PROGRAM OR MACROS; OR 5) ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS.
YOU AGREE THAT BEYONDUS IS NOT THE ORIGINATOR OF THE CONTENT FOUND ON THE WEBSITE AND CMS AND, AS SUCH, SHALL NOT BE LIABLE FOR DAMAGES ARISING THEREFROM INCLUDING, WITHOUT LIMITATION, ANY AND ALL CRIMINAL AND / OR CIVIL LIABILITY.
THE MAXIMUM LIABILITY OF BEYONDUS AND THE COVERED PARTIES TO YOU OR TO ANY THIRD-PARTY, IN THE AGGREGATE, UNDER ANY AND ALL CIRCUMSTANCES WILL BE EQUAL TO ANY FEES THAT YOU HAVE PAID TO BEYONDUS FOR THE CMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BEYONDUS SHALL NOT BE LIABLE TO YOU FOR ANY SERVICES, GOODS AND / OR INFORMATION AVAILABLE FROM THIRD PARTIES. IF YOU ARE DISSATISFIED WITH THE WEBSITE AND / OR CMS AND / OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE WEBSITE AND CMS IMMEDIATELY.
Dispute Resolution/Governing Law: This Agreement shall be treated as though it were executed and performed in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Should a dispute arise concerning the terms and conditions of this Agreement or the breach of same by either party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in New York City, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending an outcome in arbitration.
Severability: Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with, the Website or CMS is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
Force Majeure: We are not responsible for any loss, damages, costs, claims or expenses which you may incur as a result of our delay in or failure to perform our obligations where such delay or failure is due to causes beyond our control. Causes beyond our control include, but are not limited to: fire, flood, earthquake, accident, civil disturbances, war, rationing or embargoes, strikes, labor problems, delays in transportation, inability to secure necessary materials, delay or failure of performance of any supplier or subcontractor, acts of God and acts of Government
Legal Warning: Any attempt by any individual, whether a user or otherwise, to damage, destroy, tamper with, vandalize and / or otherwise interfere with the operation of the Website and / or CMS, is a violation of criminal and civil law and Beyondus will diligently pursue all remedies in this regard against any offending individual or entity to the fullest extent permissible both at law and in equity.
Modifications: This Agreement is subject to change at any time, with or without notice. All changes are effective upon their posting on the Website. You agree that it is your responsibility to bookmark this page and to check it frequently for updates to your Agreement with us. If you object to any of the terms and conditions in the Agreement, if you become dissatisfied with the CMS, Website or any subsequent modifications to the Agreement, your sole recourse is to immediately discontinue the use of the Website and CMS.