EULA

SERVICES AGREEMENT

Revised May 20, 2021

 

Baymaster Software, LLC, a Delaware limited liability company (“Baymaster”, “we” or “our”) owns and operates the internet website, pages and services (this “Site”) exclusively for our registered customers (“Customer/s”, “you” or “your”).

 

BY CLICKING “I AGREE,” AS AN INDIVIDUAL OR AS AN AUTHORIZED REPRESENTATIVE OF CUSTOMER, YOU AS CUSTOMER OR CUSTOMER WHICH YOU REPRESENT (“CUSTOMER”), AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS SERVICES AGREEMENT (“AGREEMENT”), INCLUDING, WITHOUT LIMITATION, ALL DOCUMENTS, POLICIES, AND PROCEDURES INCORPORATED HEREIN BY REFERENCE.

 

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE AGREEING TO BECOME BOUND BY THESE TERMS AND CONDITIONS. THIS AGREEMENT WILL CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN US. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MAY NOT ACCESS THE SITE OR USE THE CONTENT OR ANY SERVICES IN THE SITE. YOU REPRESENT THAT BY CLICKING “I AGREE” YOU HAVE THE APPROPRIATE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT.

 

Under 18.

The Site is not intended for the use of children under 18 years of age and no such person is authorized to use it. By using the Site, you are representing that you are at least 18 years old. You also represent, by accessing or using the Site, that you are of legal age to enter into legal agreements.

 

Privacy Policy.

The personal information you submit on the Site is governed by the Baymaster Privacy Policy, which is incorporated herein by reference. Your acceptance of this Agreement constitutes your acceptance of the Baymaster Privacy Policy. If you object to your personal information being used as described in the Baymaster Privacy Policy, please do not submit information, use or register to use, the Site.

 

License and Fees.

 Baymaster grants Customer, under the terms and conditions of this Agreement, a revocable, non-transferable and non-exclusive license to use the software, documentation and enhancements strictly in accordance with the terms of this Agreement. Baymaster’s software and documentation (“Application”) shall at all times remain the sole and exclusive property of Baymaster. The term of the license shall be for the term of this Agreement as defined below.

All fees will be due and payable pursuant to the specific version of the Application chosen by Customer.

 

Ownership.

The Application constitutes and involves the valuable intellectual property and proprietary rights of Baymaster. There is no transfer to Customer of any right, title or ownership in or of the Application, or any patent, copyright, trade secret, trade name, trademark, or other intellectual property rights or proprietary rights therein. It is understood and agreed that Baymaster is the sole and exclusive owner of all right, title, and interest in and to the Application.

 

Trademarks and Copyrights.

Unless otherwise noted, product names, designs, logos, titles, text, images, domain names within this Site are the trademarks, service marks, trade names, copyrights or other property (herein referred to as “Intellectual Property”) of Baymaster. All other unregistered and registered trademarks are the property of their respective owners and are hereby acknowledged. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, license or right to use any of Baymaster ‘s Intellectual Property displayed on the Site without the express written permission of Baymaster.

 

Modifications.

The internet and this Site are constantly evolving. We reserve the right to change or modify this Agreement or to impose new conditions with respect to your use of this Site at any time and from time to time. You are responsible for checking for revisions of this Agreement. We also have the right at any time to change, substitute, modify, add or discontinue any aspect of or feature of the Site, including but not limited to content, functionality, and means of access or use. Such changes, substitutions, modifications, additions or discontinuances shall be effective immediately upon notice to you, which may be given by posting in this Agreement or elsewhere on the Site, electronic mail, or any means by which you obtain actual knowledge. Your continued use of the Site following the posting of changes will mean you accept those changes.

 

Third Party Websites.

Our Site may provide links to third-party websites, which are not under the control of Baymaster. Baymaster makes no representations about third-party websites. When you access a non- Baymaster website, you do so at your own risk. Baymaster is not responsible for the reliability of any data, opinions, advice, or statements made on third-party sites. Baymaster provides these links merely as a convenience for you. The inclusion of such links does not imply that Baymaster endorses, recommends, or accepts any responsibility for the content of such sites.

 

Disclaimers.

 You acknowledge that Baymaster does not own, operate or manage the internet; communications on the internet may not be secure and may be subject to interception or loss. Baymaster does not guarantee continuous, uninterrupted or secure access to the Site, and operation of the Site may be interfered with by numerous factors outside of our control. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS SITE.

 

No Warranties.

THE SITE AND ANY CONTENT OBTAINED THEREFROM ARE PROVIDED ON AN “AS IS” BASIS AND BAYMASTER EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL BAYMASTER OR ANY OF ITS OWNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE (WHETHER IN AN ACTION ARISING FROM CONTRACT OR TORT) FOR (i) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BAYMASTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY OTHER MATTER RELATING TO THIS SITE, OR (ii) ANY DISCLOSURE OF INFORMATION PROVIDED TO BAYMASTER (EVEN IF SUCH DISCLOSURE IS CAUSED BY THE NEGLIGENCE OF BAYMASTER), EXCEPT TO THE EXTENT THAT SUCH IMPROPER DISCLOSURE IS DIRECTLY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF BAYMASTER. TO THE EXTENT PERMITTED BY LAW, THE REMEDIES STATED FOR YOU IN THIS AGREEMENT ARE EXCLUSIVE AND YOU ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR HEREIN. Please note that some jurisdictions may not allow the above exclusion of implied warranties, so some of the above exclusions may not apply to you.

 

Limitation of Liability.

IN NO EVENT, WHERE PARTY REFERS TO A PARTY TO THIS AGREEMENT, (a) WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT TO THE OTHER PARTY EXCEED THE AMOUNT OF THE FEES PAID TO BAYMASTER IN THE SIX (6) MONTHS PRIOR TO THE CAUSE OF ANY ACTION; or (b) WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES; or (c) WILL EITHER PARTY BE LIABLE FOR THE OTHER PARTY’S LEGAL FEES AND COSTS, EXCEPT AS OTHERWISE SET FORTH HEREIN. THE LIABILITIES LIMITED BY THIS SECTION APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; EVEN IF THE OTHER PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND EVEN IF THE PARTY’S REMEDIES FAIL FOR THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, EITHER PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.

 

Infringement.

Baymaster shall indemnify defend, and hold harmless Customer, including its employees, agents,  subsidiaries, affiliates, and its directors, officers, members, shareholders and owners, from and against all losses, liabilities, judgments, awards, settlements, damages, fines, injuries, penalties and costs (including reasonable legal fees and expenses) from any third party claim, suit or proceeding brought against Customer based on a claim that Baymaster’s software and/or services infringe or violate any United States copyright, trade secret, trade dress, trademark, patent or any other intellectual property right. Customer must: (i) promptly give Baymaster written notice of any such third-party claim; and (ii) permit Baymaster to control, and cooperate with Baymaster, at Baymaster’s expense, in the defense and settlement of any such claim. Furthermore, if in Baymaster’s opinion, a claim is likely, Baymaster may, in its sole discretion, (i) obtain the right for Customer to continue to use the software and/or service; (ii) substitute other software and/or services with similar capabilities; (iii) modify the Application and/or service so that it is no longer infringing; or (iv) if in Baymaster’s opinion, none of the above options are commercially practicable, Baymaster may terminate this Agreement and refund any unused pre-paid fees paid for the Application and/or services.  Baymaster shall not be responsible for any claim of infringement that arises from: (i) unauthorized modifications to the Application and/or services; (ii) use of the Application and/or services in a manner or in combination with products not provided or approved in writing by Baymaster; or (iii) any use of the Application and/or services not in accordance with this Agreement or the applicable documentation.

 

Indemnification.  Customer shall indemnify, defend, and hold harmless Baymaster, including its employees, agents,  subsidiaries, affiliates, and its directors, officers, members, shareholders and owners,  from and against any loss, liability, damage, penalty or expense (including reasonable attorneys’ fees and cost of defense)  they may suffer or incur as a result of (i) any failure by  Customer to comply with the terms of this Agreement; (ii) any misuse of the Application; or (iii) violation of any applicable law, regulation or right of a third party.

 

Confidentiality.

The parties to this Agreement agree that any and all materials, documentation and information pertaining to a party is the confidential property of that party (“Confidential Information”). The party receiving the Confidential Information, including such party’s employees, officers, directors and agents, (collectively, the “Receiving Party”) shall hold in confidence all Confidential Information and shall not disclose or distribute Confidential Information, or any portion thereof, in any form or format to any person except on a strict “need to know” basis for the purposes of this Agreement, or as required by legal process. Customer agrees that it shall not copy, alter, decompile, disassemble, reverse engineer, or otherwise modify (except with Baymaster’s prior written consent) Baymaster’s Application or directly or indirectly disclose any Baymaster Confidential Information. Confidential Information shall not include information that: (i) is or has become publicly available without restriction through no fault of the Receiving Party; or (ii) has been received without restriction from a third party lawfully in possession of such information.

The parties hereto shall notify each other immediately of any suspected unauthorized access or use of Confidential Information and shall provide reasonable cooperation in discovering and halting such unauthorized access or use.

 

Upon execution of this Agreement, Customer agrees that its name may be included in Baymaster’s customer list.

 

Term and Termination.

The term of this Agreement shall begin on the acceptance of this Agreement and will continue until terminated by Customer or Baymaster.

 

This Agreement will terminate immediately, without prior notice from Baymaster, in the event that you fail to comply with any provision of this Agreement. Baymaster may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice. Customer may also terminate this Agreement by deleting all copies of the Application.

 

Upon termination of this Agreement, Customer shall cease all use of the Application and delete all copies of the Application.

 

 

Taxes.

The Customer shall be solely responsible for and agrees to pay, indemnify, and hold Baymaster harmless from any and all sales, use, communications, excise, or similar tax or duty, and any other tax not based on Baymaster’s net income, including penalties and interest and any associated fees, and all other imposts levied upon or chargeable with respect to the use, license, sale, or delivery of the services or other deliverables in respect of this Agreement, and any costs associated with the collection or withholding of any of the foregoing items.

 

Assignment.

Neither party may assign this Agreement without the prior written consent of the other party, provided however, that either party may assign this Agreement and its rights and obligations hereunder in whole or in part, without any such consent, to any affiliate of such party, by operation of law, in connection with a change of control or to any successor to all or substantially all of such party’s business or assets. This Agreement shall be binding upon and shall inure to the benefit of each party’s permitted assigns.

 

Miscellaneous.

Headers:  The headers used in this Agreement are for convenience only and do not constitute substantive matter to be considered in construing the terms of this Agreement.

 

Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. In case of any dispute related to this Agreement, the parties agree to submit to personal jurisdiction in the State of Delaware.  Furthermore, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any court of the State of Delaware or any federal court sitting in the State of Delaware for purposes of any suit, action or other proceeding arising out of this Agreement.  THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT.

 

Severability:  Should any provision of this Agreement be finally determined to be inconsistent with or contrary to applicable law, such provision shall be deemed amended or omitted to conform therewith without affecting any other provision or the validity of this Agreement.

 

Amendment: The terms and conditions of this Agreement may not be altered, amended, or modified except in writing signed by each party hereto.

 

Third Parties: Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer any rights or remedies upon any persons or entities not parties to this Agreement.

 

Notices:  All notices hereunder shall be in writing, including but not limited to electronic writings. Any notices to be given hereunder by either party to the other may be by personal delivery in writing; by electronic means, mail, registered or certified, postage prepaid; or by commercial overnight delivery to the address provided by the party with return receipt requested.

No Waiver:  Failure of a party to enforce any provision of this Agreement shall not be construed as a waiver of such provision or of any other provision or of the right to enforce such provision.

 

Entire Agreement:  This Agreement, including all schedules, amendments and Service Order Forms, if applicable, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous written and oral proposals, negotiations, representations, commitments, writings, agreements, and all other communications between the parties. Customer may be subject to additional terms and conditions, which Baymaster will provide, that apply upon the use or purchase of certain of Baymaster’s services. Customer further agrees that any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement shall not be binding on Baymaster and shall not apply to this Agreement. The rights and obligations of the parties to this Agreement which, by their nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

 

Contact us.

If you have any questions about this Agreement, please can contact us:

•           By email: support@bay-master.com

•           By visiting this page on our website: bay-master.com/contact-us