These Terms of Service (“Terms”) apply to your access to and use of the website (the “Website”) provided by BYONE, Inc. (“By One” or “we”). By using our Website, you agree to these Terms, if you do not agree to these Terms, do not use our Website. We may make changes to these Terms from time to time. If we make changes, we will provide a notice through our Website. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Website after we provide such notice will confirm your acceptance of the changes.
2. User Submissions
3. Prohibited conduct and content
You will not violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Website. You will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Sell, resell or commercially use our Website;
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Website, except as expressly permitted by us or our licensors;
- Modify our Website, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Website;
- Use our Website other than for its intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Website or that could damage, disable, overburden or impair the functioning of our Website in any manner;
- Reverse engineer any aspect of our Website or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Website;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Website;
- Develop or use any applications that interact with our Website without our prior written consent;
- Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
- Bypass or ignore instructions contained in our robots.txt file; or
- Use our Website for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
Enforcement of this Section 4 is solely at By One’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. Also, Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Website will not contain any content that is prohibited by such rules.
5. Ownership; limited license
The Website, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, is owned by By One or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Website are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Website. Any use of the Website other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
The By One name, and the green, stylized “By One” writing, and our logos, our product or service names, our slogans, and the look and feel of the Website are trademarks of By One and may not be copied, imitated or used, in whole or in part, without our prior written permission.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about By One or our Website (collectively, “Feedback”). You understand that we may use such Feedback without acknowledgment or compensation to you, including, without limitation. You understand that By One may treat Feedback as non confidential.
8. Third-Party content
We may provide information about third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Website (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. By One does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless By One and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the “By One Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Website; (b) your User Submissions or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Website. You agree to promptly notify By One Parties of any third-party Claims, cooperate with By One Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the By One Parties will have control of the defense or settlement, at By One’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities outlined in a written agreement between you and By One or the other By One Parties.
THE PARTIES HERETO INTEND FOR THIS SECTION 10 (DISCLAIMERS) TO APPLY TO THE FULLEST EXTENT PERMITTED BY LAW; CERTAIN JURISDICTIONS MAY NOT PERMIT THE WAIVER OF CERTAIN IMPLIED WARRANTIES, IF YOU ARE IN SUCH JURISDICTION, THE WAIVER OF EACH SUCH IMPLIED WARRANTY DOES NOT APPLY TO YOU. YOUR USE OF OUR WEBSITE IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR WEBSITE AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BESIDES, BY ONE DOES NOT REPRESENT OR WARRANT THAT OUR WEBSITE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE BY ONE ATTEMPTS TO MAKE YOUR USE OF OUR WEBSITE AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR WEBSITE OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEBSITE.
11. Limitation of liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BY ONE AND THE OTHER BY ONE PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF BY ONE OR THE OTHER BY ONE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF BY ONE AND THE OTHER BY ONE PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR WEBSITE (INCLUDING CLAIMS RELATED TO PRIVACY AND DATA SECURITY), REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $25 OR THE AMOUNT PAID BY YOU TO USE OUR WEBSITE. THE LIMITATIONS OUTLINED IN THIS SECTION 11 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF BY ONE OR THE OTHER BY ONE PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
To the fullest extent permitted by applicable law, you release By One and the other By One Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
13. Dispute resolution; binding arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with By One and limits how you can seek relief from us unless you opt-out of arbitration by following the instructions set forth below. No class or representative actions or arbitration are allowed under this arbitration agreement. Also, arbitration precludes you from suing in court or having a jury trial. No Representative Actions. You and By One agree that any dispute arising out of or related to these Terms or our Website is personal to you and By One and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding. Arbitration of Disputes. Except for small claims disputes in which you or By One seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or By One seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and By One waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Website resolved in court. Instead, for any dispute or claim that you have against By One or relating in any way to the Website (including privacy and data security claims), you agree to first contact By One and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to By One by email at ops@By One.com or by certified mail addressed to 515 E Grant St, Phoenix, AZ 85004. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and By One cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Phoenix, AZ, or may be conducted telephonically or via video conference for disputes alleging damages less than $1,000, following the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason. You and By One agree that these Terms affect interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. The arbitrator, By One, and you will maintain the confidentiality of any arbitration proceedings, judgments, and awards, including, but not limited to, all information gathered, prepared, and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision. You and By One agree that for any arbitration you initiate, you will pay the filing fee and By One will pay the remaining JAMS fees and costs. For any arbitration initiated by By One, By One will pay all JAMS fees and costs. You and By One agree that the state or federal courts of the State of Arizona and the United States sitting in Maricopa County, Arizona have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. Any claim arising out of or related to these Terms or our Website must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and By One will not have the right to assert the claim. You have the right to opt-out of binding arbitration within 30 days of the date you first accepted the terms of this Section 13 by emailing terms@By One.com and indicating you are opting out of binding arbitration. To be effective, the opt-out notice must include your full name and address and indicate your intent to opt-out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes following Section 14. If any portion of this Section 13 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining claims on an individual basis under this Section 13; and (c) to the extent that any claims must, therefore, proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 13 is found to prohibit an individual claim seeking public injunctive relief, that provision will not affect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 will be enforceable.
14. Governing law and venue
Any dispute arising from these Terms and your use of the Website will be governed by and construed and enforced following the laws of Arizona, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Arizona or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Arizona and the United States, respectively, sitting in Maricopa County, Arizona.
15. Modifying and terminating our website
We reserve the right to modify our Website or to suspend or stop providing all or portions of our Website at any time. You also have the right to stop using our Website at any time. We are not responsible for any loss or harm related to your inability to access or use our Website.
If any provision or part of a provision of these Terms is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of By One to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.