BAILY LABS - TERMS OF SERVICE
Last Updated: June 2018
1 Who We Are
1.1 ACN Digital Holdings Ltd (trading as Bailylabs) is registered in Ireland under company number 526761 and we have our registered office at Suite 61, 20 Harcourt Street, Dublin 2, Ireland (“we”, “us” or “our”).
2 Our Agreement With You
2.1 These Terms of Service set out the terms and conditions of access and use by you (“You” or “Your”) of the app, content, software, features, activities and products and related technology made available by us online (collectively the “Services”). The terms “You” or “Your” includes any of your subsidiaries, affiliates, and personnel. You represent and warrant that you have the right and authority to bind your business to these Terms of Service.
2.3 Unless otherwise required by applicable law, we have the right to change or add to the Terms at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services with notice that we in our sole discretion deem to be reasonable in the circumstances, including by placing a notice on our website www.bailylabs.com (as that URL is updated from time to time) or any other website maintained or owned by us. Any use or access by You of the Services after our publication of any such changes or providing notice shall constitute your acceptance of the Terms as modified.
3 Setting Up An Account
3.1 You must register an account with us before you can access and use the Services. You must provide the information requested during registration, such as your name and other personal details. You must provide accurate and complete information and keep it up-to-date.
3.2 You are solely responsible for all actions and activity that happen under your account with us, including for any action by those you have granted access to. We may suspend or terminate any user account if we believe they have submitted false, inaccurate, or incomplete information. You are responsible for keeping any passwords safe and for restricting access to the Services from your and computers and devices. You shall immediately notify us of any unauthorised use of your account or password or any other breach of security.
4.1 We grant You a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Services, subject to the terms and conditions set out in the Terms. You may need to accept and install updates to the Services from time to time to continue your use of the Services.
4.2 Except for the limited rights and license granted to You herein, You acknowledge and agree that as between the parties, We retain all rights, title and interest, including intellectual property rights, in the Services.
4.3 You are responsible for making all arrangements necessary for you to have access to the Services. You are also responsible for ensuring that all persons who access the Services on your behalf are aware of these Terms, and that they comply with them in full. You are solely responsible for any access or data fees from third parties (such as your internet service provider and/or mobile carrier) that You incur in connection with your access or use of the Services.
4.4 To the extent that you acquire any right, title or interest, including any intellectual property rights, in modifications to the Services or to any materials related to the Services, You irrevocably and unconditionally assign (and must procure that any of your subsidiaries, affiliates, and personnel irrevocably and unconditionally assign) that right, title and interest to us, including all moral rights. You agree to, at your cost, do all things necessary to give effect to the assignment in clause 4.4.
4.5 You may not copy, reproduce in any form, store in a retrieval system or database, modify, disassemble, create other works from, make improvements to, decompile or reverse engineer all or any portions of the Services. You agree not to remove, deface or obscure our copyright, trademark notices and/or proprietary notices on the Services and any copies thereof. You may not use the Services in any manner which could damage, disable, overburden or impair it or any other party’s computer systems or network, or hack or gain unauthorised access to the Services and our materials or data. You may not use any automated system or software to extract data or information from the Services for display on any other website. You must not, and must procure that any of your subsidiaries, affiliates, and personnel do not, use or access the Services in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.6 You must not use the Services to transmit to or from the Services any potentially unlawful, threatening, libellous, defamatory, tortious, obscene, offensive, hateful, scandalous, inflammatory, pornographic or profane material, or any other material that could give rise to any civil or criminal liability under law, including, without limitation, any material that you are not entitled to transmit, or where such transmission is otherwise in breach of any third party intellectual property rights.
5 Your Responsibilities
5.1 When accessing or using the Services, you must:
(A) comply with all applicable laws and regulations;
(B) make sure appropriate security measures are implemented and managed on your own systems which interface with the Services;
(C) on request provide reasonable assistance to us in connection with the set-up and operation of the Services;
(D) co-operate fully with us and our business partners to help reduce, prevent, or investigate fraudulent activity in connection with the Services.
6 Term and Termination
6.1 Unless otherwise agreed to by the parties in writing or terminated earlier in accordance with these Terms, these Terms shall commence upon the date you agree to these Terms and shall continue until they are terminated in accordance with their terms. Clauses 5, 6, 7, 8, 9, 10 and 12 shall survive expiration or termination of the Terms.
6.2 You may terminate these Terms by providing us with 30 days prior written notice to [email protected]. If you terminate prior to the conclusion of your current subscription period, you will remain responsible for payment for all Charges through the end of your current subscription period.
6.3 We reserve the right, at any time, in our sole discretion, without reason, to, suspend, withdraw or amend access to, and/or any services we provide on, the Services without notice or liability. From time to time, for operational reasons, we may restrict access to all or some parts of the Services, or the entire Services, to users.
6.4 If these Terms expire or are terminated: (a) any rights granted under these Terms will end; (b) you will lose all access to the Services and we may delete all information or data stored in your account; and (c) we will not be liable to you or any third party for compensation, reimbursement or damages for any termination or suspension of the Services or for deletion of your information or account data.
7 Payment and Invoices
7.1 The Services may, at our discretion, be offered with a free trial during which you may try out the Services for 7 days after the date you first commence use. Free trials are limited to one per customer. You may need to enter your billing information in order to sign up for the trial period. You may cancel your account at any time during the free trial period. We reserve the right to modify, cancel or limit a trial period at any time without notice.
7.2 Once the trial period is up you will only be able to continue using and accessing the Services by paying us in advance the fees and charges in the manner and amounts as set out in the Baily Labs website (the “Charges”). All Charges are payable on the date of invoice. All Charges shall be payable in euro (€) and are non-cancellable and non-refundable. All Charges are exclusive of all value added tax (VAT), taxes, levies or duties imposed by taxing authorities and you shall be responsible for payment of all such VAT, taxes, levies or duties. We may vary the Charges for the Services at any time or impose additional fees or charges by providing you with 30 days prior notice. You will be deemed to have accepted the varied Charges unless you notify us otherwise before the changes come into force.
7.3 If You do not pay any amount due under the Terms on time, without prejudice to any of our other rights and remedies:
(A) we may, without liability to you, suspend and/or disable your account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(B) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% (three percent) per calendar month, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 If these Terms expire or are terminated for any reason you must pay us all Charges within 30 days of request for payment plus all other amounts outstanding as at the date of, or arising as a result of, expiry, termination or cancellation.
8 Confidentiality and Publicity
8.1 You agree to keep all information about the Services confidential, including but not limited to commercial and pricing information, performance capabilities, data, tools and methods. You must not issue any press release or make any other public statements regarding these Terms or your relationship with us without our prior written approval.
8.2 If You provide any feedback, ideas, comments and suggestions to us regarding the Services during the Term (“Feedback”), such Feedback shall become the property of us and we are free to use the Feedback without any additional compensation to you and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone.
9 Warranty and Liability
9.1 Use of the Services is entirely at your own risk and you assume full responsibility and risk of loss resulting from the use of, viewing, access to, relying on or downloading of the Services and/or any of our materials. Information, opinions, commentary, calculations, comparisons and other materials provided, generated or displayed on or through the use of the Services are not intended to amount to advice on which reliance should be placed. We therefore disclaim all liability and responsibility arising from any reliance placed on, or conclusions drawn from, such materials by any user of the Services, or by anyone who may be informed of any of its contents. You are solely responsible for determining the suitability of any such information or materials. You acknowledge that email and other methods of transmitting information over the Internet are subject to interference or scrutiny by third parties and should be independently verified. We cannot ensure security and privacy of such communications and all risk in transmitting such communications lies with you.
9.2 We warrant to You that (a) we have all necessary authority to enter into the Terms and grant the limited rights and license granted herein, and (b) we will provide the Services with reasonable care and skill. OTHER THAN THESE EXPRESS LIMITED WARRANTIES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY ACCOMPANYING MATERIALS ARE PROVIDED “AS IS,” WITHOUT UNDERTAKING, REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED (INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AMD AGAINST INFRINGEMENT). IN PARTICULAR, WE MAKE NO UNDERTAKING, REPRESENTATION OR WARRANTY: (A) IN CONNECTION WITH THE LOCATION, COMPLETENESS OR ACCURACY, RELIABILITY OR TIMELINESS OF THE SERVICES OR ANY RELATED MATERIALS; AND/OR (B) THAT THE SERVICES OR ANY SERVER THEY ARE HOSTED ON ARE UNINTERRUPTED, FREE FROM DEFECTS, ERRORS, VIRUSES, BUGS OR OTHER HARMFUL ELEMENTS.
9.3 NOTHING IN THESE TERMS EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY FOR: DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; FRAUD OR FRAUDULENT MISREPRESENTATION; OR OTHER MATTERS FOR WHICH IT WOULD BE UNLAWFUL TO LIMIT OR EXCLUDE LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE TOTAL AGGREGATE LIABILITY OF US ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO US (IF ANY) IN THE PREVIOUS 12 MONTHS UNDER THESE TERMS; AND (B) IN NO EVENT WILL WE HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME OR REVENUE; LOSS OF BUSINESS; LOSS OF PROFITS OR CONTRACTS; LOSS OF ANTICIPATED SAVINGS; LOSS OF DATA; LOSS OF GOODWILL; AND WASTED MANAGEMENT OR OFFICE TIME; WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF FORESEEABLE.
10.1 You agree to indemnify, defend and hold us (including our respective affiliates and subsidiaries and our and their officers, agents, partners and employees) and our payment processors, distributors, licensors and suppliers harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses (including reasonable legal fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to:
(A) any violation by you or your users of these Terms;
(B) your (or your users’) use of the Services;
(C) your disclosure of any end-customer personal data to us;
(D) the accuracy of any content or product, service or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by You; or
(E) your violation of any third party right, including your use of the Services or any right of privacy or intellectual property rights.
11 Third Party Websites
11.1 The Services may contain links to third party websites, but this does not mean we endorse or authorise those websites, nor does it mean that we are affiliated with the third party website, its owners or sponsors. Your use of third party websites is subject to the terms and conditions of use and other policies contained within each of those websites.
12 Some Final Terms
12.1 These Terms constitute the entire agreement between us and you relating to the subject matter hereof and supersede any prior representations, discussions, undertakings, communications or advertising relating to them. We will not be liable for any failure or delay in performance, due in whole or in part, to anything beyond our reasonable control.
12.2 The Terms and any rights or licenses granted hereunder, may not be novated, transferred or assigned by You (including by operation of law, transfer of voting control of You or otherwise) without our prior written consent. You will enter into any documents required by us to effectuate a novation, transfer or assignment by us of our rights and obligations under these Terms.
12.3 These Terms establish an independent contractor relationship between you and us, and do not create any affiliate relationship, partnership, joint venture, employment relationship, agency, or fiduciary or other special relationship between you and us.
12.4 We shall have no liability to you under these Terms if we are prevented from or delayed in performing our obligations under these Terms, or from carrying on our business, by any event that is beyond our reasonable control.
12.5 Except as expressly stated in these Terms, neither party has the authority to act or purport to act as the other party’s agent or representative for any purpose.
12.6 In the event that any provision of the Terms shall be found unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect.
12.7 Any waiver by either party of any default or breach under the Terms shall not constitute a waiver of any provision of the Terms or of any subsequent default or breach of the same or different kind.
12.8 The existence, formation, interpretation, operation and termination of these Terms, and all matters and disputes (whether contractual or non-contractual) related to or connected with the Terms or its subject matter, is subject to the laws of Ireland. The Irish Courts will have exclusive jurisdiction over all matters and disputes (whether contractual or non-contractual) related to or connected with the Agreement or its subject matter. Nothing in this paragraph shall limit our rights to bring enforcement proceedings in another jurisdiction or to seek interim, protective or provisional relief in the courts of another jurisdiction. You acknowledge and agree that it is Your responsibility to ensure that your use of the Services is in accordance with all applicable laws and regulations.