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Terms of Service

(Last Modified March 18, 2008)

The following terms of service (these "Terms of Service" or this 'Agreement') govern the provision by By Logix Inc. to the client executing this online transaction ("Client"), of the products and services described in (i) the Order Form submitted in connection with this online transaction (the 'Order Form'), (ii) the Service Level Agreement (as revised on occasion and set forth on By Logix Inc.'s website, the 'SLA') governing the Client's limited right to recover certain service credits and (iii) By Logix Inc.'s technical support descriptions (collectively clauses (i) through (iii), the "Products and Services"). These Terms of Service shall be effective as of the date that Client executes its online transaction and thereby accepts these Terms of Services (the 'Effective Date'). These Terms of Service hereby incorporate by reference the SLA, By Logix Inc.'s Acceptable Usage Policy (as revised on occasion and as set forth on By Logix Inc.'s website, the 'AUP'), and the Order Form, each of which is made a part of these Terms of Service and collectively referred to herein as the 'Agreement.' Client's use of By Logix Inc.'s website, By Logix Inc. software, and the Products and Services is also subject to Client's acceptance and compliance with these Terms of Service, the AUP, the SLA and the Order Form. Capitalized terms used herein without being defined herein shall have the meaning ascribed to such capitalized term in the SLA or AUP, as applicable. By Logix Inc. hereby reserves the right to amend, alter, modify, replace or suspend, on occasion, at its sole discretion, all or any portion of its privacy policy (as set forth on By Logix Inc.'s website, the 'Privacy Policy'). Current copies of By Logix Inc.'s SLA, AUP and Privacy Policy may be reviewed or printed by Client at the Legal section of By Logix Inc.'s website. CLIENT HEREBY REPRESENTS AND WARRANTS THAT IT HAS READ, UNDERSTOOD AND ACCEPTED THE TERMS OF THE SLA, AUP AND PRIVACY POLICY.

By signing an Order Form or by using By Logix Inc.'s website, By Logix Inc. software (as defined in the SLA), products or services, Client hereby agrees to the terms and conditions of the Agreement.

1. Services and Monthly Commitments. By Logix Inc. agrees to provide the Products and Services in accordance with the terms and conditions of this Agreement beginning on the Effective Date. By Logix Inc. may perform additional technical, supplemental, or professional services (other than the Products and Services) for Client at either By Logix Inc.'s published pricing rates or at rates mutually agreed to in writing between Client and By Logix Inc.. Also, By Logix Inc. may perform remedial services as provided for in the AUP at the pricing set forth therein and without obtaining Client's consent in advance. If a Client subscribes for any Product and Service for a term other than on a month-to-month basis, then each month of such term Client shall pay By Logix Inc. the greater of (i) the actual fees and expenses payable by Client for the Products and Services for which Client has subscribed for such term (based on all actual licensing and usage of such Products and Services on a monthly basis) and (ii) the Minimum Monthly Commitment. For purposes of this Agreement, 'Minimum Monthly Commitment' shall be determined each month and shall mean with respect to each Product and Service subscribed for by Client other than on a month-to-month basis, the greater of (A) the amount specified as the 'Minimum Monthly Commitment' in the Order Form associated with the subscription for such Products and Services and (B) the highest aggregate monthly amount paid or payable by Client with respect to all Products and Services subscribed to for a term other than on a month-to-month basis, during the current term for which Client subscribed for such Products and Services. If for any month Client's aggregate monthly fees and expenses actually paid or payable by Client for the Products and Services for which Client has subscribed for such term (based on all actual licensing and usage of such Products and Services on a monthly basis) does not exceed the Minimum Monthly Commitment, then Client shall pay the Minimum Monthly Commitment in lieu of the charges that would otherwise be due with respect to such Products and Services. All payments made by Client with respect to such Products and Services shall be credited first towards the Minimum Monthly Commitment.

2. Term and Renewal. Unless Client agrees to a one-year term or unless otherwise stated in an Order Form or any service description, the initial term ('Initial Term') of this Agreement shall be month-to-month, commencing on the Effective Date and shall automatically renew (A) in the case of a month-to-month term, the fifteenth (15th) day of each month for successive one-month periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement or (B) in the case of a one-year term, each yearly anniversary of the Effective Date for successive one-year periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement (in each case, a 'Renewal Period'). Client agrees to be bound by the service term selected on the Order Form. By Logix Inc. may cancel or elect not to renew the Products and Services for any reason or no reason at all by delivering to Client a written notice of non-renewal at least five (5) days prior to the expiration of the Initial Term or the then-current Renewal Period, as applicable.

3. Client Cancellation or Non-Renewal. In order to cancel or elect not to renew any Product or Service, Client must (i) submit a written cancellation request (a 'Cancellation Notice') received at least five (5) days prior to expiration of the Initial Term or the then-current Renewal Term and (ii) upon submission of the Cancellation Notice, contact via telephone a By Logix Inc. client service representative to confirm the information set forth on the Cancellation Notice, unless otherwise instructed in writing by By Logix Inc. to do so otherwise. CLIENT AKNOWLEDGES AND AGREES THAT NO PRODUCT OR SERVICE WILL BE CANCELLED, ALL PRODUCTS AND SERVICES SHALL CONTINUE TO RENEW AND Client WILL CONTINUE TO BE BILLED FOR ALL PRODUCTS AND SERVICES UNLESS CLIENT CONFIRMS VIA TELEPHONE THE INFORMATION PROVIDED IN THE CANCELLATION NOTICE AS PROVIDED IN SECTION 3 CLAUSE (ii) ABOVE.

4. Termination. By Logix Inc. may immediately terminate this Agreement at any time, and without liability, upon the occurrence of any of the following events ('By Logix Inc. Termination'): (i) Client's failure to pay any overdue amount within ten days after written notice by By Logix Inc. is given to Client or (ii) Client's material breach or violation of any provision of this Agreement (other than such violations set forth in clauses (iii), (iv) and (v) below) that is not resolved within ten (10) days of Client's receipt of written notice from By Logix Inc. referencing such breach or violation; (iii) Client ceasing to do business in the normal course, becoming or being declared insolvent or bankrupt, being the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) calendar days, or making an assignment for the benefit of its creditors; (iv) Client's violation of the AUP or the Privacy Policy; or (v) By Logix Inc. determines in its sole discretion that Client continues to host content that may subject By Logix Inc. to legal liability (in which case, By Logix Inc. may terminate or modify the Products and Services to avoid such liability).

Client may terminate this Agreement with respect to all, and not less than all, of the Products and Services without liability (except for Charges due through the effective date of such termination) upon the occurrence of a material breach by By Logix Inc. of its obligations to provide the Products and Services according to the terms of this Agreement that is not resolved within ten (10) business days after written notice from Client describing such breach in detail is received by By Logix Inc. ('Client Termination'). In the event of a Client Termination, Client shall pay (1) all outstanding amounts payable through the effective date of such termination and (2) if the Products and Services include software for which By Logix Inc. does not then provide general Client support, Client shall pay to By Logix Inc. an amount equal to By Logix Inc.'s cost of such software for the entire Initial Term and any applicable Renewal Periods. If Client terminates this Agreement for any reason other than a Client Termination, Client shall pay to By Logix Inc. an amount equal to all unpaid Charges through the effective date of such termination and (A) in the case of any Product and Service subscribed for on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable or (B) in the case of any Product and Service subscribed for other than on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable, calculated based upon the then-current Minimum Monthly Commitment payable by Client upon the date of termination. CLIENT ACKNOWLEDGES THAT CLIENT WILL NOT BE ENTITLED TO ANY REFUND OR CREDIT IN THE EVENT THAT ANY PRODUCT OR SERVICE THAT IS PROVIDED ON THE BASIS OF A ONE-YEAR TERM IS TERMINATED, WITH OR WITHOUT CAUSE, PRIOR TO THE EXPIRATION OF THE ONE-YEAR TERM. CLIENT HEREBY WAIVES ALL RIGHTS TO ANY SUCH REFUND OR CREDIT.

Upon termination of this Agreement, By Logix Inc. and Client shall have no obligations to each other, except as provided for in this Agreement. Upon termination of this Agreement, Client shall (i) pay all Charges and other amounts due and owing to By Logix Inc. under these Terms of Service, (ii) immediately remove from By Logix Inc.'s premises all property owned by Client, including, but not limited to, immediately removing all of Client's data from By Logix Inc. software (including all servers owned or operated by By Logix Inc.), and (iii) return to By Logix Inc. all software, access keys, and any other property provided to Client by By Logix Inc. under this Agreement. Any physical property of Client not removed from By Logix Inc.'s premises within forty-five (45) days after such termination shall become the property of By Logix Inc., which may, among other things, dispose of such property without the payment of any compensation to Client. Sections 4, 5, 6, 7 and 8 shall survive the expiration, cancellation and termination of this Agreement for any reason.

5. Payment. Client agrees to pay all charges, fees, penalties, early cancellation charges, reconnection fees, service interruption fees, installation fees and other amounts due under this Agreement (collectively 'Charges') in US dollars. Each Client that is a California resident agrees to pay all taxes applicable to its account. Except as otherwise provided for herein, all Charges for the Products and Services, and for any additional services described herein, shall be invoiced to the Client and paid in advance of the Initial Term and each Renewal Term (but may include any applicable pro-rated amounts for partial months of Products and Services provided on a month-to-month basis) and shall be due and payable upon receipt. Any additional one-time charges, including early cancellation charges, accrued interest, late fees, service reinstatement fees, and any usage-based charges (installation or set-up fees) shall be invoiced in arrears and appear on either regular monthly invoices or separate invoices. Server rental charges are incurred immediately at signup and are prorated by 3 days to allow for server provisioning and delivery. Client also shall pay to By Logix Inc. all expenses incurred by By Logix Inc. in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment default, including attorneys' fees, court costs, and collection agency fees. If Client fails to pay any past due amount within five (5) days after written notice by By Logix Inc. is given to Client, By Logix Inc. may suspend performance under this Agreement and if such past due amounts remain unpaid within five (5) days thereafter, By Logix Inc. may terminate this Agreement. By Logix Inc. may charge interest on any invoice amounts that are overdue by more than ten (10) days at the lesser of (a) 1.5% per month or (b) the maximum non-usurious rate under applicable law. Client shall be deemed to have accepted as conclusively accurate any invoice that it has not disputed in a writing delivered to By Logix Inc. within sixty (60) days of the invoice date. Client may withhold the disputed portions of payments that are properly and timely disputed hereunder as long as it timely pays all undisputed charges that are outstanding.

The parties shall work together in good faith to resolve any such disputed charge. In the event that this Agreement is terminated by By Logix Inc. for any reason constituting 'By Logix Inc. Termination' (as defined above) or by Client for any reason other than 'Client Termination' (as defined above), all Charges under the Agreement, including all remaining monthly or yearly fees due for the remaining portion of the Initial Term and each applicable Renewal Period, shall accelerate and are immediately due and payable. All set-up fees, monthly service fees and usage fees are non-refundable. Client shall not be entitled to any refunds or credits, pro-rated or otherwise, in the event of early termination of this Agreement by By Logix Inc. according to the terms herein.

6. Indemnification. Client agrees to indemnify and hold harmless By Logix Inc., its subsidiaries, their affiliates and each of their respective directors, officers, employees, shareholders and agents (each an "Indemnified Party") against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, "Losses") to which an Indemnified Party may become subject and which Losses arise out of, or relate to the Agreement, Client's use of the Products and Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys' fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.

7. Disclaimers; Limitation on Company Liability. BY LOGIX INC. SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE PRODUCTS AND SERVICES BY THE CLIENT OR ANY THIRD PARTIES OR ANY FAILURE OF THE PRODUCTS AND SERVICES OR (ii) ANY LOSS OF DATA, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS, FAILURE OF BY LOGIX INC. SOFTWARE, RECLAIMATION OF SERVERS BY BY LOGIX INC., FAILURE OF SERVERS, THE RELOADING OF AN OPERATING SYSTEM OR OTHER SOFTWARE ON A SERVER OR THE NEGLIGENCE OF BY LOGIX INC.. CLIENT IS SOLELY RESPONSIBLE FOR SAFEGUARDING, BACKING UP AND ARCHIVING ALL DATA OWNED, CONTROLLED OR TRANSMITTED BY CLIENT THAT RESIDES ON BY LOGIX INC. SOFTWARE OR ANY SERVER OWNED OR OPERATED BY BY LOGIX INC.. IN NO EVENT SHALL BY LOGIX INC.'S AGGREGATE LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CLIENT TO BY LOGIX INC. IN THE BILLING CYCLE IMMEDIATELY PRECEEDING SUCH CLAIM. BY LOGIX INC. PROVIDES ALL PRODUCTS AND SERVICES 'AS IS,' WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE PRODUCTS AND SERVICES AND BY LOGIX INC. SHALL HAVE NO LIABILITY THEREFORE. NO CLAIM MAY BE ASSERTED BY CLIENT AGAINST BY LOGIX INC. MORE THAN TWO (2) YEARS FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM. CLIENT ACKNOWLEDGES AND AGREES THAT THE RECEIPT OF A SERVICE CREDIT AS PROVIDED FOR IN THE SLA CONSTITUTES CLIENT'S SOLE AND EXCLUSIVE REMEDY, AND BY LOGIX INC.'S SOLE AND EXCLUSIVE LIABILITY, FOR ANY FAILURE OF BY LOGIX INC. SOFTWARE, BY LOGIX INC. HARDWARE OR BY LOGIX INC. INFRASTRUCTURE OR THE FAILURE BY BY LOGIX INC. TO PROVIDE CLIENT WITH THE PRODUCTS AND SERVICES OR MANAGED HOSTING SERVICES PURCHASED BY CLIENT IN ACCORDANCE WITH THIS AGREEMENT WHICH RESULTS FROM A QUALIFIED SERVICE DOWNTIME EVENT OR ANY OTHER QUALIFIED DOWNTIME EVENT.

8. Miscellaneous Terms. Bandwidth and Disk Usage. Client agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Products and Services ordered by Client on the Order Form (the "Agreed Usage"). By Logix Inc. shall monitor Client's bandwidth and disk usage. By Logix Inc. shall have the right to take corrective action if Client's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Products and Services, or termination of these Terms of Service, which actions may be taken by By Logix Inc. in its sole and absolute discretion. If By Logix Inc. takes any corrective action under these Terms of Service, Client shall not be entitled to a refund of any fees paid in advance prior to such action. Bandwidth usage is measured on a calendar month basis. Both incoming and outgoing traffic is counted and applied towards the Agreed Usage. In the event that Client exceeds the Agreed Usage, By Logix Inc. may, at its sole discretion, collect a deposit, in the amount of $1.00 per GB from Client, or to the extent that Client has a credit card on file with By Logix Inc., apply such charge against Client's credit card. Data transfer in excess of the Agreed Usage shall be automatically billed to Client. Unused Agreed Usage or bandwidth allocations cannot be carried over to future months or applied to other servers.

Notices. Unless otherwise specified herein, all notices, requests and other communications hereunder shall be sufficiently given if in writing and delivered personally or sent by facsimile transmission, internationally recognized overnight courier, or registered or certified mail (return receipt requested) to the address or facsimile number of Client listed in By Logix Inc.'s records or if to By Logix Inc. then to the address set forth below. Such notices or other communications shall be deemed to have been given (a) on the date delivered (if delivered personally), (b) on the date that return confirmation is received (if sent by facsimile), (c) on the business day after being sent by an internationally recognized overnight air courier, or (c) five days after being sent (if sent by registered or certified mail).

By Logix Inc. 2565 Waxwing Ave Ventura, CA 93003 Attn: Legal Department Phone: (805) 676 1925 Email: legal@bylogix.com

Waiver. It is agreed that no waiver by any party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.

Severability. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected.

Force Majeure. Neither party shall lose any rights hereunder or be liable to the other party for damages or losses on account of failure of performance by the defaulting party if the failure is occasioned by any occurrence or contingency beyond its reasonable control, including war, strike, fire, Act of God, earthquake, flood, lockout, embargo, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party; provided that such party shall use commercially reasonable efforts to promptly mitigate any damages or losses.

By Logix Inc.'s Use of Client's Name. Client agrees that By Logix Inc. may publicly disclose that By Logix Inc. is providing services to Client and may include Client's name in any promotional materials, such as press releases or By Logix Inc.'s web site. Neither party may publicly use the other party's logo or other trade or service mark without that party's written consent.

Non-Solicitation. During the term of this Agreement and for twelve (12) months following termination of this Agreement, Client agrees that it shall not solicit for employment with Client (or with any other party) any employee of By Logix Inc. or interfere in the employment relationship between By Logix Inc. and any of its employees with whom Client has had contact in connection with this Agreement.

Ownership. By Logix Inc. shall be the sole owner of all intellectual property, and all derivatives thereof, that By Logix Inc. may develop in the course of providing the Products and Services. Each party to this Agreement retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property. Upon termination of the Agreement, Client agrees to promptly release any Internet protocol numbers, addresses, or address blocks assigned to Client in connection with the Products and Services.

Client Hardware. By Logix Inc. acknowledges and agrees that the hardware provided by Client to By Logix Inc. to be used in connection with any Products and Services (the 'Client Hardware') is the property of Client and shall be tagged and identified as such. By Logix Inc. shall not pledge, hypothecate or otherwise encumber the Client Hardware in any way and upon demand by Client shall surrender the Client Hardware to Client, unless Client fails to remove such Client Hardware as provided for in Section 4 above.

Third-Party Beneficiaries. There shall be no third party beneficiaries to the Agreement, including Clients, employees, agents, or insurers.

Assignment. This Agreement shall not be assignable by Client without By Logix Inc.'s prior written consent. By Logix Inc. may assign the Agreement in whole or in part upon written notice to Client. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor.

Governing Law, Jurisdiction, Venue. The laws of the State of California and the United States shall govern this agreement. The Venue is the Ventura Superior Court located in Ventura, California.

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