Terms of Service

Last updated on November 28, 2012

These terms of service are between you, or if accepting on behalf of an entity, such entity (“Company,” “you,” or “your”) and BitYota, Inc., having a principal place of business at 1804 N. Shoreline Blvd. Suite 250, Mountain View, CA 94043 (“BitYota,” “we,” or “us”) and constitutes a legal agreement that governs your access to and use of the Service (as defined below) (“Terms”).

PLEASE READ THESE TERMS CAREFULLY. BY CHECKING THE BOX OR CLICKING TO ACCEPT WHERE SUCH OPTION IS PRESENTED TO YOU, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, FULLY UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS.

  1. ACCEPTANCE

    If you are entering into these Terms on behalf of a company or other entity, you represent and warrant that you have authority to bind such company or other entity to these Terms. You must complete the registration form and accept these Terms before you may access or use the Service. You can accept these Terms by either: (a) clicking to accept or agree where such option is made available to you; or (b) actually using or accessing the Service. We reserve the right to update these Terms at any time, in our sole discretion, and will notify you of such updates either via email or by posting such changes on the BitYota website, or such other reasonable means. You can find the most recent version of these Terms at http://www.bityota.com/terms-of-service/ with the date of last modification noted above. Such modifications shall become effective immediately upon the posting thereof. If you do not agree to the revised terms and conditions, your sole recourse is to cancel your account and cease use of the Service. Your continued access and use of the Service following notification of an updated version of the Terms shall constitute your acceptance of the revised Terms.

  2. LICENSE AND RESTRICTIONS

    2.1 License. Subject to the terms and conditions herein, BitYota grants Company the limited rights to use the Services for the purposes of utilizing those features and functionality made available from time to time through the Service.

    2.2 Restrictions. Company will not nor attempt to use any BitYota Service, or any part thereof, other than as permitted herein, or (i) copy, reproduce, modify, damage, disassemble, decompile, reverse engineer, or create derivative works of any BitYota Service or BitYota product, or any portion thereof; (ii) breach, disable, tamper with, or develop or use (or attempt) any workaround for any security measure provided by any BitYota Service; (iii); use any BitYota Service in a way that infringes or misappropriates a third party’s intellectual property rights or personal rights); (iv) use any device, software, or routine to interfere or attempt to interfere with the proper working of any BitYota Service or any activities conducted on BitYota servers; (v) engage in any promotional or marketing activities where the content violates or infringes upon the rights of any third party, or is defamatory, obscene, threatening, libelous, abusive, hateful, or illegal; or (vi) alter or tamper with any information or materials on or associated with any BitYota Service; or (vii) sell, resell, rent, or lease access to the Service without the express written permission of BitYota.

    2.3 Company Data.   “Collected Data” means all content provided to BitYota by or on behalf of Company in connection with the Services, including but not limited to data from your applications, systems, or other data sources, text, multimedia materials and other materials, including software.(a)             Use of Collected Data. The Company represents and warrants that (i) you have the right to provide to us the Collected Data and you hereby grant us the right to use such Collected Data in the manner described in these Terms; (ii) your use and transmission of Collected Data is and will be in compliance with these Terms, and all applicable laws, regulations, and ordinances, including relevant data privacy laws; (iii) you have provided all necessary notices and obtained all necessary consents related to the collection and use of such Collected Data in the manner described in these Terms; and (iv) you will not upload, transmit, or otherwise make available or utilize any Content that (a) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (b) you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (c) infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any third party; or (d) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. We reserve the right to review and/or remove any Company Data if we suspect that it is in violation of these Terms and/or applicable laws. We will only access and use the Collected Data to the extent it is necessary to provide the Service to you. Notwithstanding the foregoing, we may use the Collected Data for the purpose of generally maintaining and improving the Service as well as for developing and distributing general benchmarks or statistics pertaining to the Service, provided the Collected Data is used in the aggregate and is in anonymized form.(b)             Data Security and Protection. Company and BitYota acknowledge and agree that for the purposes of the U.K. Data Protection Act of 1998, the Company is the Data Controller. Company represents and warrants to BitYota that Company and the Collected Data do not and will not infringe or violate, and Company shall be solely responsible for any violation of, all applicable laws, enactments, orders, standards, and other similar instruments and specifically the following rights, laws and regulations, including without limitation any amendments and successors thereto: (i) the EU Directive 95/46/EC; (ii) UK Data Protection Act of 1998; (iii) the EU Directive on Privacy and Electronic Communications 2002/58/EC; (iv) the UK The Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003 No. 2426); any local, state, federal, or non-United States law or regulation; (v) the rights of any individual, group, or entity (collectively “Persons”) by virtue of being threatening, defamatory, obscene, indecent, or that otherwise could adversely affect Persons (vi) the Children’s Online Privacy Protection Act of 1998 (“COPPA”) (vii) rights of any third party that may exist under patent law, copyright law, database rights law, publicity rights law, moral rights law, trade secret law, trademark law, unfair competition law, or other similar or analogous protections in any jurisdiction, whether or not such rights are registered or perfected, and does not violate any other applicable law, and (viii) Section V of the United States FTC Act. Company is solely responsible for creating, updating and maintaining the Collected Data. BitYota shall not be responsible for reviewing the Collected Data at any time and Company has full control over the uploading, storage and transmission of the Collected Data. Company and its licensors shall retain all intellectual property rights and all other right, title and interest in and to all Collected Data (including but not limited to any trademarks of Company and its affiliates and licensors, and the goodwill therein) provided by Company in connection with the Collected Data.  In this Agreement, an affiliate of a company shall mean any other company, partnership, or other form of business undertaking under the control of or under common control with the company.(c)             Privacy. BitYota is committed to protect the privacy of its customers, consumers, and any data used or intended to be used to identify, contact, or locate a specific person or entity, including without limitation, address, telephone number, or email address (“PII”).  Company agrees that any transmission, collecting, manipulation, or disclosure of PII hereunder will be done in compliance with all applicable laws and regulations and pursuant to a privacy policy that discloses (i) use of the data and third party services in accordance with all applicable laws, rules, and regulations, including industry self-regulation and standards, (ii) all use of technology relating to data collection, reporting, and targeting activities, (iii) an easy to use “opt-out” method for the user to opt-out of data collection and targeting, which complies with all applicable laws, regulations and “Best Practice” standards, (iv) the sharing of data with third parties and (v) complies with Section V of the Federal Trade Commission Act.  Company further agrees to ensure that no BitYota Services are used to facilitate the merger of PII with non-PII, unless such merger is disclosed in the privacy policies under which the PII and non-PII to be merged are collected.

  3. SERVICE
    3.1 Description of the Service. Our Service is provided using the platform-as-a-service or software-as-a-service model. The “Service” includes the following which are provided subject to these Terms, along with any updates, enhancements, or improvements thereto as made available by us from time to time, subject to our right to update, modify, or discontinue the features, functionality, or other aspects of the Service at any time, with or without notice, in our sole discretion:3.2 Data Collection. The ability to upload Collected Data to the BitYota third party hosted cloud environment, via our user interface (“UI”), a software daemon (“agent”), Data Upload tools, Data streaming and logging web service, Software SDK, our REST API, or through scheduled processing or a one-time upload with our command line interface (“CLI”) or UI at BitYota.com.

    3.3 Analysis. The ability to create, edit, schedule, and run SQL queries using UI, CLI or any other certified third party tools, display, and export query results on the Collected Data as well as create or delete tables related to the Collected Data.

    3.4 Data Management. The utility to manage data including but not limited to import, delete, archive, and manipulation of Collected Data.3.4 Storage. A third party hosted cloud storage service which enables you to store, access, manage, and use the BitYota Service in connection with the Collected Data for the Term. Currently, we use Amazon Web Services as our storage provider.

    3.5 Provision of the Service. Subject to and conditioned on your compliance with these Terms, you shall have a non-exclusive, non-transferable, non-sublicensable, limited right, during the Term to access and use the Service. You may permit others to use the Service solely on your behalf (“Users”), provided that you shall ensure that all such Users comply with these Terms. Additionally, you will be fully liable for the acts, omissions, or violation of these Terms by any and all Users. Except for the express licenses granted in this Section 2, no other licenses are granted by BitYota hereunder, by implication, estoppel or otherwise, and all rights not expressly granted herein are reserved. You understand that the Service may change over time as we refine and add more features.

    3.6 Third Party Services or Add-Ons. We may make available to you certain third party products or services for use in connection with the Service (“Third Party Services”). You understand and agree that your use of those Third Party Services may be subject to additional terms and conditions and policies that are specific to such Third Party Services, and that you shall be bound by such terms and conditions and policies if you elect to use such Third Party Services. We make no representations or warranties with respect to any Third Party Services, be it express or implied. You are solely responsible for determining the suitability of any Third Party Services that you elect to use in connection with the Service. Any and all use of such Third Party Services shall be at your sole risk.

    3.7 Account Terms. You must provide us with your full legal name, a valid email address, and any other information requested during the account signup process in order to obtain a BitYota account (“Login Account”). You will ensure that all account information remains complete and accurate. Accounts registered by “bots” or other automated methods are not permitted. You are solely responsible for protecting the Login Account, including your username and password, and you will be liable for any unauthorized use thereof.

    3.8 Trial Period; Free Account. From time to time we may offer access to the Service (or portions thereof) through a trial period (“Trial Period”) or no cost (“Free Account”), as we determine in our sole discretion. These Terms apply equally to any Trial Period or any Free Account that you may be using. You understand and acknowledge that the Service provided under any Trial Period or a Free Account may be significantly limited in functionality including storage and concurrent processing capacity and as such may not be used in a production or live environment. Any access or use of the Service under a Trial Period or Free Account shall be at your sole risk. You agree to hold BitYota harmless from any liability that may arise from your use of the Service during such Trial Period or under any Free Account.

    3.9 Support. Technical support is provided in accordance with your selected Plan Level and the terms and conditions set forth in the BitYota Support FAQ, available at http://www.bityota.com/support/.

    3.10 Restrictions. Your use of the Service must be in accordance with the use parameters of your account’s plan level (“Plan Level”), the applicable documentation, and all applicable laws, rules, and regulations. You agree that you will not (and will not permit or encourage any Users or other third party to) directly or indirectly: (a) use the Service in any manner or for any purpose other than as expressly permitted by these Terms; (b) except as provided in Section 2.3(a) with regards to the data collection agent and command line utility, modify, alter, tamper with, repair, or otherwise create derivative works of the Service; (c) remove, obscure or alter any proprietary right notice on or in connection with the Service; (d) use the Service to store or transmit malicious code, viruses, Trojan horses, or worms; (e) interfere with or disrupt the integrity or performance of the Service; (f) interfere with other users’ use of the Service; (h) use the Service to attempt to access, acquire or otherwise obtain data to which you are not legally entitled; (g) access or use the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas; and (h) use the Service to infringe the intellectual property rights, or otherwise violate the rights of others.

    3.11 Notification of Unauthorized Use. You will immediately notify us by email at support@bityota.com of any unauthorized use of your account or the Service that comes to your attention. In the event of any such unauthorized use, you will take all steps necessary to terminate such unauthorized use. Additionally, you will provide us with such cooperation and assistance related to any such unauthorized use as we may reasonably request.

    3.12 Security. BitYota currently uses Amazon Web Services (AWS) as its infrastructure provider. AWS infrastructure is housed in Amazon-controlled data centers. AWS has been accredited under ISO 27001, as well as SOC 1/SSAE 16/ISAE 3402 (Previously SAS 70 Type II). For more information on the security provided by Amazon Web Services, please see the Amazon Web Services Security Center page (http://aws.amazon.com/security/). You acknowledge, however, that no data transmission over the Internet or data storage system can be guaranteed to be 100% secure and BitYota cannot ensure the security of data transmitted to it or that it stores. You acknowledge that if you wish to protect your transmission of Collected Data, it is your responsibility to use a secure encrypted connection to communicate with the Service. At your option, you may use Secure Socket Layer (SSL) encryption on the agent where Collected Data is collected to help protect its transmission over the Internet. BitYota shall not be liable to you for any liabilities arising from the operation of the Service over the Internet or other networks outside of our control. You understand and agree that you are solely responsible for maintaining appropriate back-ups and archives of your Collected Data. BitYota will have no responsibility (or related liability) for backing up any Collected Data or other information that you provide to BitYota.

  4. PAYMENT TERMS

    4.1 Fees. You will pay us the fees for the Service (“Service Fees”) in accordance with the payment and pricing terms for the Plan Level set forth on our pricing information page available at http://www.bityota.com/pricing/ (or such URL as we may provide), which is incorporated by reference into these Terms. We will make certain payment methods available to you, at our sole discretion. All amounts are payable in U.S. dollars and will be due within thirty (30) days of the billing date, unless otherwise agreed to by the parties in writing. All payment obligations are non-cancelable and all Service Fees and other amounts paid are non-refundable. If Company fails to pay any amount due within thirty (30) days from the date of the invoice, late charges of the lesser of one and one-half percent (1½%) per month or the maximum allowable under applicable law shall also become payable by Company to BitYota. In addition, failure of Company to fully pay any amount within forty-five (45) days after such amount is due shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Hosting Services, and shall be sufficient cause for immediate termination of this Agreement by BitYota. If Company fails to pay, when due, any amount payable hereunder or fails to fully perform its obligations hereunder, Company agrees to pay, in addition to any amount past due, plus interest accrued thereon, all reasonable expenses incurred by BitYota in enforcing this Agreement, including, but not limited to, all expenses of any legal proceeding related thereto and all reasonable attorneys’ fees incurred in connection therewith. No failure by BitYota to request any such payment or to demand any such performance shall be deemed a waiver by BitYota of Company’s obligations hereunder or a waiver of BitYota’s right to terminate this Agreement.

    4.2 Taxes. Company will also reimburse BitYota for all sales, value added use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated hereby; excluding, however, income taxes on profits which may be levied against BitYota.

    4.3 Credit Check. From time to time BitYota may perform a credit check of Company, and Company hereby consents thereto.  BitYota may require, in its sole discretion, Company to make a security deposit, or BitYota may set a credit limit, in its sole discretion.

    4.4 Updates. We reserve the right to update the Service Fees, at any time, and for any reason, upon fifteen (15) days’ notice to you via the email address on file with your account or such other reasonable means. If you do not agree to such a change in the Service Fees, you may cancel your account during such fifteen (15) day period. By continuing to use the Service after the effective date of the change in Service Fees, you hereby agree to such Service Fees.

  5. PROPRIETARY RIGHTS
    5.1 Use of Software Tools.  The Service includes certain components and Tools which are proprietary to BitYota and certain components and Tools which are provided to you subject to a third party license (the “Third Party License(s)”) which requires, among other things, attribution to the licensor. The Third Party Licenses are listed at: www.bityota.com/thirdpartyacknowledgement.  By using the Service, you are agreeing to the terms of each of the Third Party Licenses.   If you institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Service or any component incorporated within or distributed by or through the Service constitutes direct or contributory patent infringement, such litigation shall be considered a material breach of these Terms and any licenses granted to you hereunder shall terminate as of the date such litigation is filed.  Unless required by applicable law or otherwise agreed to in writing by BitYota, the Tools are distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.  See each third party license for the specific language governing permissions and limitations under such licenses.  Notwithstanding the foregoing, you understand that the Service is intended for use with the Tools as provided to you by BitYota. To the extent you modify the Tools you do so at your own risk.5.2 Ownership. We and our suppliers retain all right, title and interest, in and to the Service (including all of its software and technology components), the structure and format of any Reports, our trademarks, our Confidential Information, and the Feedback, including all intellectual property rights therein. In no event will you contest or dispute our exclusive ownership rights in the foregoing. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements of the Service without our express written permission. Other trademarks, service marks, and trade names that may be used on or in connection with the Service are the property of their respective owners. You will retain all right, title and interest, in and to the Collected Data, the Reports related to such Collected Data generated by BitYota’s Service, your trademarks, and your Confidential Information, including all intellectual property rights therein.5.3 Feedback. We welcome your suggestions or feedback on how to improve the Service. If you provide any ideas, suggestions, or recommendations to us regarding the Service (“Feedback”), we shall be free to retain, use, and incorporate such Feedback in our products and/or services, without payment of royalties or other consideration to you.
  6. CONFIDENTIALITY
    6.1 Confidential Information.  “Confidential Information” is all technical and non-technical information being disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), including without limitation, product information, plans and pricing, financials, marketing plans, business strategies, customer and user information, data, research and development, software, APIs, specifications, designs, formulae, algorithms, and know-how; either designated as, or which would reasonably be understood to be, confidential or proprietary. In addition, the existence and terms of this Agreement and the fact that discussions may be taking place between the parties in connection with this Agreement is deemed to be the Confidential Information of both parties, and the Collected Data is the Confidential Information of Company.6.2 Obligations. The Receiving Party will: (a) hold the Disclosing Party’s Confidential Information in confidence; (b) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who have previously agreed (e.g. as a condition to their employment or agency) to be bound by terms substantially similar to those of this Agreement; (c) use such Confidential Information only for the purposes for which it was disclosed; and (d) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information unless otherwise specified in writing by the Disclosing Party.6.3 Exclusions.  The restrictions set forth herein will not apply to Confidential Information to the extent it (a) was in the public domain at the time of disclosure; (b) became publicly available after disclosure without breach of this Agreement by the Receiving Party; (c) was lawfully received by the Receiving Party from a third party without such restrictions; (d) was known to the Receiving Party without such restrictions prior to its receipt from the Disclosing Party; (e) was independently developed by the Receiving Party without reference to such Confidential Information; (f) was generally made available to third parties by the Disclosing Party without such restriction; or (g) is required to be disclosed by the Receiving Party pursuant to judicial order or other compulsion of law, provided that the Receiving Party will provide to the Disclosing Party prompt notice of such order and comply with any protective order imposed on such disclosure.6.4 Legal Process.  In the event BitYota receives a warrant, subpoena or other legal process (“Legal Order”) relating to the Collected Data, BitYota shall take commercially reasonable efforts to notify Company of such Legal Order. Unless Company obtains and provides BitYota with a protective order with respect to any Legal Order prior to the date BitYota is required to comply therewith; BitYota shall comply with the Legal Order. BitYota shall have no liability to Company or any third party for any actions taken to comply with any Legal Order and Company shall release, hold harmless and indemnify BitYota from and against any direct, indirect and third party liabilities arising from any Legal Order.6.7 Disposition of Confidential Information.  Upon written request of the Disclosing Party, all copies of the Disclosing Party’s Confidential Information will be returned to the Disclosing Party or promptly destroyed.6.8 Voluntary Disclosure.  Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) creating warranties or representations of any kind; (b) creating a commitment as to any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) granting a license under any intellectual property rights of the Disclosing Party except as expressly provided herein.
  7. WARRANTY DISCLAIMEREXCEPT AS SET FORTH ABOVE, BITYOTA MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE HARDWARE, SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. BITYOTA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE HOSTING SERVICES, AND ANY SOFTWARE, HARDWARE, OR DOCUMENTATION PROVIDED HEREUNDER.
  8. LIMITATION OF LIABILITYOTHER THAN BREACHES OF THE INTELLECTUAL PROPERTY OBLIGATIONS HEREIN AND COMPANY’S OBLIGATIONS IN SECTION 6.4, NEITHER PARTY, AND NO THIRD PARTY, SHALL HAVE LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, EXCEPT AND UNLESS AS EXPRESSLY SET FORTH HEREIN, BITYOTA SHALL HAVE NO LIABILITY WHATSOEVER FOR LOSS OF CUSTOMER DATA OR INTERRUPTION OF CUSTOMER’S HOSTING SERVICE FOR ANY REASON, INCLUDING POWER OUTAGE, LACK OF NETWORK ACCESS, RIOT, INSURRECTION, EXPLOSION, MALICIOUS MISCHIEF, LIGHTENING, EARTHQUAKE, EXTREME WEATHER CONDITIONS, OR THE ACTIONS OF ANY THIRD PARTY, INCLUDING OTHER CUSTOMERS OF BITYOTA WHICH MAY AFFECT THE HOSTING SERVICE. IN ANY EVENT, EXCEPT FOR THE EXPRESS LIABILITIES DESCRIBED HEREIN, THE LIABILITY OF BITYOTA TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID TO BITYOTA BY CUSTOMER HEREUNDER IN THE THREE (3) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, MISREPRESENTATION, CLAIMS FOR FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF SERVICES, AND OTHER TORTS. FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST BITYOTA. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
  9. INDEMNIFICATIONCompany agrees to indemnify, defend, and hold harmless BitYota, its directors, officers, and employees from and against any and all claims, liabilities, losses, damages, costs, and expenses (including reasonable attorneys fees), of whatever nature or kind arising out of or incidental to or in any way resulting from (a) the acts or omissions of Company of its officers, employees, agents, authorized users or any third party use of Company’s connection or access methods; (b) any software, programs, content or other materials provided by or on behalf of Company, including claims that the Collected Data or any other material stored or transmitted through the Service by or on behalf of the Company infringes the intellectual property rights of any third party; or (c) any misrepresentation or breach by Company of any of its representations, warranties, covenants or other obligations set forth in this Agreement. This indemnity shall survive any termination or expiration of this Agreement.
  10. TERM AND TERMINATION10.1 Termination. These Terms are effective and you will continue to be billed for the Service until we terminate your account or you properly cancel your account in accordance with these Terms (“Term”). You are solely responsible for properly canceling your account. You may terminate these Terms at any time by canceling your account via the Service. We may terminate these Terms and your rights to access and use the Service for any or no reason, without liability, at our sole discretion at any time, including if we suspect that you or your Users have violated these Terms. We will attempt to notify you of any such termination but are under no obligation to do so. In addition, without limiting the foregoing termination rights, we reserve the right, at any time and in our sole and absolute discretion, to temporarily suspend access to the Service (in whole or in part) for: (a) scheduled or unscheduled maintenance; (b) purposes of maintaining the security and/or integrity of BitYota’s network, hardware, or associated systems or those of its third party providers; (c) failure by you to timely pay the Service Fees; or (d) the actual or suspected violation of these Terms by you or your Users.10.2 Export and Destruction of Collected Data. Provided you have paid all outstanding Service Fees and have not breached any portion of these Terms, you shall have the ability to export or retrieve the Collected Data from the Service at any time during the Term and within thirty (30) days after the effective date of termination. Following such period, we will have no obligation to maintain or provide Collected Data and shall thereafter, unless legally prohibited, delete all Collected Data in our systems or otherwise in our possession or under our control.10.3 Effect of Termination. Upon termination or cancellation of these Terms for any reason, all licenses and other rights granted to you hereunder will immediately terminate and you will cease all use of the Service. Upon termination of these Terms by BitYota, BitYota will refund a pro-rated portion of any pre-paid Service Fees to reflect services actually rendered. No other Service Fees will be refundable. Sections 2.3 (Company Data), 3.10 (Restrictions), 4 (Payment Terms), 5 (Proprietary Rights), 6 (Confidentiality; Proprietary Rights), 7 (Warranty Disclaimer), 8 (Limitation of Liability), 9 (Indemnification), 10 (Term and Termination), and 11 (General) will survive the termination, cancellation, or expiration of these Terms.
  11. GENERAL11.1 Entire Agreement. These Terms constitutes the entire agreement between you and BitYota regarding the Services and supersedes all proposals, oral or written, all negotiations, conversations, discussions, or prior agreements between you and BitYota relating to your use of the Services.11.2. Force Majeure.  In the event either party is unable to carry out its material obligations under this Agreement by reason of “force majeure” (defined below) those obligations will be suspended during the continuance of the force majeure, provided the cause of the force majeure is remedied as quickly as practicable.  The term “force majeure” means any event caused by occurrences beyond a party’s reasonable control, including, but not limited to, acts of God, fire or flood, war, terrorism, governmental regulations, policies or actions enacted or taken subsequent to execution of the Agreement, or any labor, telecommunications or other utility shortage, outage or curtailment.11.3 Compliance with Laws. Company represents and warrants that it has not and shall not intentionally or unintentionally violate any applicable local, state, national, or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law.11.4 Governing Law; Venue; Arbitration. The laws of the State of California, excluding any conflicts of laws provisions, will apply to any disputes arising out of or relating to these terms or the Services. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to these Terms.  If a dispute arises out of (or relates to) this Agreement, or the breach thereof, the Parties agree to submit said dispute to binding arbitration held in Santa Clara County, California and administered by the American Arbitration Association, in accordance with its guidelines and rules, and the parties further agree that any judgment or award rendered by said arbitrators may be entered in any court having jurisdiction thereof.  In the event a dispute is brought before a court, you and BitYota agree that any suit or proceeding arising out of or relating to these Terms will be brought in the federal or state courts, as applicable, in Santa Clara County, California, and you and BitYota irrevocably submit to the personal jurisdiction and venue of such courts.11.5. Copyright Complaints. We respect the intellectual property rights of others and will respond to notices of alleged copyright infringement if they comply with the law and are properly provided to us. Pursuant to the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512(c)(2), our designated agent for notice of alleged copyright infringement in connection with the Service is:BitYota, Inc.
    Attn: Dev Patel, CEO
    1804 Shoreline Blvd, Suite 250
    Mountain View, CA 94043

    To file a notice of infringement with BitYota, the requirements specified in Title II of the Digital Millennium Copyright Act of 1998 must be fulfilled.

    11.6 Notices; Electronic Communications. By registering for the Service and accepting these Terms, you consent to receiving and we reserve the right to send you communications or information regarding the Service, including but not limited to (a) notices about your use of the Service, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding our products and services, via electronic mail. In the event that we send such communications, you will have the opportunity to opt-out of receiving future messages.

    11.7 Assignments and Subcontracts. You may not assign these Terms in whole or in part, by operation of law or otherwise, and any attempt to do so will be null and void. We may assign these Terms, in whole or in part, at any time without notice. These Terms shall be binding upon and shall inure to the benefit of your and BitYota’s successors and assigns. BitYota shall have the right to engage subcontractors of its choosing to perform its obligations hereunder, however, BitYota shall at all times be responsible for the subcontractors and delegating obligations to subcontractors shall not obviate BitYota’ obligations in any way.

    11.8 Waiver. No failure or delay of either party hereto in exercising any right, power, or privilege hereunder (and no course of dealing between the Parties) shall operate as a waiver or any such right, power of privilege. No waiver of any default on any one occasion shall constitute a waiver of any subsequent default. No single or partial exercise of any such right, power, or privilege shall preclude the further or full exercise thereof.

    11.9 Independent Contractor. BitYota will, in all matters relating to this Agreement, act as an independent contractor. Except to the extent expressly authorized by this Agreement, neither party hereto, nor any third party, is an agent, legal representative, partner, joint venturer, franchisee, employee, or servant of the other party hereto for any purpose. Neither party hereto will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party hereto, or to represent the other party hereto in any capacity. Unless otherwise noted, both parties shall be responsible for all expenses incurred by them in the course of exercising any rights or responsibilities accepted by them under this Agreement. Company agrees that BitYota may use the name of and identify Company as a customer, in advertising, publicity, or similar materials distributed to prospective customers.

    11.10 Severability. In the event that any provision of these Terms (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from these Terms, while the remainder of these Terms will continue in full force.