Article
At-Bay Stance Terms of Service
March 10 2024
BY ACCEPTING THIS AGREEMENT BY CLICKING “ACTIVATE”, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE THE AUTHORITY OR IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT SELECT THE “ACTIVATE” BUTTON, AND YOU ARE NOT AUTHORIZED TO USE THE SERVICES.
These Cloud Terms of Service (together, the “Agreement”) are an agreement by and between At-Bay, Inc., with offices at 1 Post Street, 14th Floor, San Francisco, CA 94104 (“At-Bay” or “we”) and the individual or entity agreeing to this Agreement (“you” or “Customer”). This Agreement (including any applicable appendices) sets forth the terms and conditions that govern access to and use of the At-Bay StanceTM Exposure Manager platform which helps you identify, aggregate, and prioritizes potential cybersecurity issues or vulnerabilities (the “Services”).
1. Key Definitions
In this Agreement, the following capitalized terms have the following meanings:
Affiliate means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, Customer or At-Bay (as the case may be).
Analytical Data means data, excluding Personal Information, related to Customer’s use of the Services that is used by At-Bay in an aggregate manner, including to compile statistical and performance information related to the provision, operation, and improvement of the Services and to detect and prevent fraud.
Authorized User means an employee, consultant, contractor, agent, or other representative authorized by Customer to access and use our Services under this Agreement.
Confidential Information means any information or data, regardless of whether it is in tangible form, disclosed through the Services that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure.
Customer Data means data (including Personal Information) in any form or medium transmitted by Customer or an Authorized User by or through the Services but excluding Analytical Data.
Documentation means all manuals, instructions, or other documents or materials that At-Bay provides or makes available to Customer in any form or medium, excluding marketing collateral, that describe the functionality, components, features, or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
Feedback means ideas, suggestions, documents, proposals, or other feedback about the Services submitted to At-Bay by Customer or an Authorized User.
Personal Information has the meaning given in the At-Bay Privacy Policy which is available at http://www.at-bay.com/privacy and incorporated herein by reference.
Insurance Policy means your insurance policy issued by an insurance carrier that is an At-Bay Affiliate or an unaffiliated insurance carrier, as applicable, which incorporates an Embedded Security Fee, as defined in such policy.
Sales Tax means sales or use tax and any other tax measured by sales proceeds which At-Bay is permitted to pass to its customers that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
Third-Party Materials means third parties that provide technologies and services to support the Services, such as hosting service providers.
2. Right to Use the Services.
- Grant of Right. Subject to and conditioned on compliance with this Agreement, At-Bay hereby grants, during the Term, the following rights, as applicable:
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- A non-exclusive, non-transferable, and revocable right to access and use the Services in accordance with this Agreement. Use of the Services is limited to Customer’s internal business purposes; and
- a limited, revocable, non-exclusive, non-transferable, non-sub-licensable license to use the Documentation, if any, solely for Customer’s internal business purposes in connection with its use of the Services.
No implied licenses are granted under this Agreement. At-Bay reserves all rights that are not expressly granted herein.
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- Account. In general, Authorized Users each need an account with At-Bay (“Account”) to use the Services. Authorized Users must choose a username and password (“Account Credentials”). At-Bay shall provide to Customer the initial Account Credentials within a reasonable time following Customer’s acceptance of this Agreement and provision and verification of all required information in connection with the account setup. You understand and agree that each Authorized User is responsible for all activities that occur through their Account Credentials. At-Bay may, in its sole discretion, suspend or terminate Account Credentials and access to the Services if Account information is inaccurate, out of date, or incomplete (or if At-Bay reasonably believes it is). If you suspect or detect unauthorized activity through your Account Credentials, you agree to immediately notify At-Bay at security@at-bay.com
- Customer Responsibilities.
(i) Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this
Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
(ii) Customer is responsible for all Customer Data transmitted to or through the Services or otherwise made available by Customer and its Authorized Users in connection with the Services, including ensuring that At-Bay has all rights and permissions required for At- Bay to transmit and otherwise process Customer Data in order to perform the Services.
(iii) Customer is responsible for the information technology infrastructure through which Customer accesses and uses the Services, including hardware and other equipment, software, networks and internet connectivity, whether operated directly by Customer or through the use of third-party services (“Customer Systems”).
(iv) Customer is responsible for all access to and use of the Services directly or indirectly through the Customer Systems, whether or not authorized.
(v) Customer is responsible for the operation, maintenance and management of the Customer Systems.
(vi) At-Bay may, from time to time, make third-party products available to Customer through the Services (“Third-Party Products”). Such Third-Party Products, which are not part of the At-Bay Services, may be subject to their own terms and conditions to which Customer must agree. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not use such Third-Party Products.
3. Confidentiality Obligations.
Whether you are our Customer or an Authorized User, you agree: (i) to use Confidential Information in accordance with the provisions of this Agreement and not to use, access or permit the use of or access to Confidential Information except as necessary to exercise rights or perform obligations under and in accordance with this Agreement or as expressly permitted by the disclosing party in writing; (ii) to treat all information to which you have access through the Services as Confidential Information and not use or disclose (or permit anyone else to use or disclose) information to which you have access through the Services except as expressly permitted by the source of the information; and (iii) to exercise due care in protecting Confidential Information from unauthorized use and disclosure.
At-Bay also agrees (i) to use, access, or permit the use of or access to Confidential Information only as necessary to offer the Services and as set forth in this Agreement and (ii) to exercise due care in protecting Confidential Information from unauthorized use and disclosure.
You and At-Bay each agree that we may disclose the other’s Confidential Information to Affiliates, employees, representatives, and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with this Agreement. You and At- Bay each may disclose the other’s Confidential Information as required by law, in response to a governmental entity request and in any legal proceeding arising from or in connection with this Agreement.
Without limiting the generality of the foregoing, you further acknowledge and agree that At-Bay may disclose Customer Data: (i) if we believe that disclosure is reasonably necessary to comply with any law, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our Services, (iv) to protect ourselves, our other customers or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to access or disclose data to assist in preventing a death or serious bodily injury.
Confidential Information does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party’s rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
You and At-Bay each acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 3 and that, in the event of an actual or threatened breach of the provisions of confidentiality, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without the requirement to post bond and without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violation of these confidentiality obligations.
4. Use Restrictions.
Customer shall not, and shall not permit any Authorized User or third party to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Materials, an applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permit:
- copy, modify, frame, mirror or create derivative works or improvements of the Services;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available all or any part of the Services to any unauthorized third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
- bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then-valid Account Credentials;
- input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious or contain, transmit or activate any virus, worm, malware or other malicious computer code;
- damage, destroy, disrupt, disable, impair or otherwise impede or harm in any manner the Services or At-Bay’s provision of services to any third party, in whole or in part;
- remove, delete, alter, or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Third-Party Materials, including any copy thereof;
- access or use the Services or Third-Party Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any right of any third party (including by any unauthorized access to or misappropriation, use, alteration, destruction, or disclosure of the data of any other customer) or that violates any applicable law;
- access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing product or service or any other purpose that is to At-Bay’s detriment or commercial disadvantage;
- otherwise access or use the Services beyond the scope of the authorization expressly granted under this Agreement.
- Services. All right, title, and interest in and to the Services, including all intellectual property rights therein, are and will remain with At-Bay. Customer has no right, license, or authorization with respect to any of the Services except as expressly set forth in Section 2. All other rights in and to the Services are expressly reserved by At-Bay.
- Third-Party Materials. With respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to Third- Party Materials except as expressly set forth in the applicable third-party license. All other rights in and to the Third-Party Materials are expressly reserved by the applicable third-party licensor.
- Customer Data. As between Customer and At-Bay, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights relating thereto. Customer hereby grants to At-Bay and its Affiliates all rights and permissions in or relating to Customer Data as are necessary or useful to At- Bay to provide Authorized Users with the Services, enforce this Agreement, exercise At-Bay’s rights and perform At-Bay’s obligations hereunder for the Term plus any additional post- termination period during which At-Bay provides Customer with access to retrieve an export file of Customer Data. Without limiting the generality of the foregoing, you grant At-Bay the right to process and share all or part of the Customer Data, including with its Affiliates, in accordance with its provision of the Services pursuant to this Agreement, as well as for the purposes of risk assessment and insurance underwriting in connection with your Insurance Policy. Your use of the Services shall have no impact on your Insurance Policy during the policy period once the Insurance Policy has been issued. Customer acknowledges and agrees that At-Bay is not and will not be responsible for any use or misuse of Customer Data that Customer instructs At-Bay to transmit to or share with any third party.
- Feedback; Analytical Data. If and to the extent Customer has any right in or to Feedback or Analytical Data, Customer hereby irrevocably grants (and shall that each Authorized User grants) a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Analytical Data and Feedback, and to sublicense the foregoing rights, in connection with the Services.
- Marks. Subject to this Agreement, you and At-Bay each grant the other the right to use and display each other’s name and logo(s) (the “Marks”) on your respective websites and in other promotional materials solely in connection with each of their respective activities under this Agreement and in accordance with applicable usage guidelines. All such use will inure to the benefit of the Marks’ owner. You and At-Bay each agree not to use, register, or take other action with respect to the other’s Marks, except to the extent allowed in advance in writing. In using the Marks under this subsection, you and At-Bay each will always use the then-current Marks and will not add to, delete from or modify any of the Marks or at any time, misrepresent the relationship between you and At-Bay. The rights to use and display the other party’s Marks under this subsection will end automatically upon any expiration or any earlier termination of this Agreement (excluding however any material containing the Marks produced prior to such expiration or any earlier termination).
6. Support Services.
If you require support or have any questions, complaints or claims with respect to the Services, please contact us at:
At-Bay, Inc. Support
security@at-bay.com
7. Privacy and Data Protection
In performing the Services, At-Bay will comply with the At-Bay Privacy Policy, which is available at http://www.at-bay.com/privacy and incorporated herein by reference. The At-Bay Privacy Policy is subject to change at our discretion, subject to applicable law.
8. Revisions to this Agreement and Services.
You acknowledge and agree that At-Bay has the right to modify this Agreement from time to time to reflect changes to the Services or applicable law. At-Bay will notify you in advance of material modifications to this Agreement that reduce your rights. At-Bay will make these notifications by email using the email addresses associated with the Account and through notices posted within the Services. Continued use of the Services after the end of the notice period specified in the notification is deemed conclusive acceptance of the Agreement as modified.
At-Bay may require that you agree to additional terms (“Supplemental Terms and Conditions”) in connection with the Services. If any of this Agreement conflicts with the Supplemental Terms and Conditions, the Supplemental Terms and Conditions will control with respect to such conflict.
At-Bay may at any time, without notice or liability, update the Services or discontinue any feature or functionality of the Services.
9. Export Controls.
You may not use, export, import or transfer the Services except as authorized by the laws of the jurisdiction in which you obtained the Services and any other applicable law. You must follow U.S. export and economic sanctions laws, and United States export control laws and regulations, including, but not limited to, United States Export Administration Regulations and other U.S. export regulations. The Services (including any software we may provide in connection with them) may be subject to applicable United States export control laws and economic sanctions regulations, and United States export control laws and regulations, including, but not limited to, United States Export Administration Regulations and other U.S. export regulations. In receiving the Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to the Services, and to the extent consistent with this Agreement, to obtain any necessary license or other authorization to export, re-export, or transfer the Services. These laws include restrictions on destinations, users, and end use.
10. Term; Termination.
- Term. This Agreement is effective for the duration of your Insurance Policy. At-Bay may extend the effectiveness of this Agreement following the termination or expiration of your Insurance Policy at its sole discretion (the “Extension Period”), and the terms and conditions set forth herein shall remain in full force and effect for the duration of the Extension Period. This Agreement shall terminate upon the termination or expiration of your Insurance Policy or the Extension Period, whichever is later, unless earlier terminated as set forth herein.
- Early Termination. We may, upon written notice to you, terminate or suspend your access to the Services immediately for cause if: (a) you or any Authorized User violate (or give us reason to believe you have violated) this Agreement or the At-Bay Privacy Policy which is available at http://www.at-bay.com/privacy and incorporated herein by reference; (b) we have reason to believe that use of the Services by you or any Authorized User is fraudulent or negatively effecting the operating capability of the Services; (c) we determine, in our sole discretion, that providing the Services is prohibited by law, violates the intellectual property rights of a third party or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (d) subject to law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If we suspend the Services associated with your Account, we will make a reasonable attempt to notify you. You agree that all terminations for cause shall be made in At-Bay’s sole discretion and that At-Bay shall not be liable to you or any third party for any termination of your Account or access to the Services.
- Effect of Expiration or Termination. Upon expiration or any earlier termination, your (including all or any Authorized Users) right to use the Services automatically terminates. You understand that any termination of Services may involve deletion of Customer Data associated therewith from our live databases. At-Bay will not have any liability whatsoever to you for any suspension or termination, including for deletion of Customer Data.
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Survival. Upon expiration or any earlier termination of this Agreement, the terms of the following Sections will survive: Sections 3, 5, 11, 12, 13, and 15.
11. NO WARRANTIES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND UNLESS OTHERWISE SET FORTH IN WRITING, AT-BAY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT,
AVAILABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. AT-BAY’S SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY IS THE MINIMUM PERMITTED UNDER THAT LAW.
AT-BAY MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (iv) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; OR (v) AT-BAY WILL CONTINUE TO OFFER THE SERVICES OR THE SERVICES IN WHOLE OR IN PART.
YOU UNDERSTAND THAT AT-BAY MAKES NO GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING THE SERVICES. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.
12. Indemnification.
You will defend, indemnify and hold At-Bay and its Affiliates, as well as their respective officers, directors and employees, harmless against any actual or threatened claim, loss, expense, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action (each, a “Claim”) arising out of or relating to your acts or omissions in connection with (a) Customer Data that you transmit through the Services; (b) your violation of the Terms and Conditions; or (c) your violation of any applicable law. At-Bay will cooperate as fully as reasonably required in the defense of any Claim, at your expense. We reserve the right, at your expense, to retain separate counsel for ourselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section 12. You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against us in connection with any Claim. You also are liable to us for any costs and reasonable attorneys’ fees we incur to successfully establish or enforce our right to indemnification under this Section 12. You agree that the provisions in this Section 12 will survive any termination of your Account, the Terms and Conditions or your access to the Services.
13. Exclusion of Damages; Limitations of Liability.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL AT-BAY BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, EVEN IF YOU HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS DESCRIBED IN THIS SECTION 13, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL AT-BAY BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE GREATER OF THE AMOUNT OF FIVE HUNDRED DOLLARS $500.00 USD OR THE PRICE PAID FOR THE SERVICES IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14. International Users.
The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or that would subject At-Bay or its Affiliates to any registration requirement within such jurisdiction or country. At-Bay does not in any manner warrant or represent that the Services, including any content contained thereon, are appropriate or available for use in any particular location. If you choose to access the Services, you do so on your own initiative and you are responsible for compliance with all applicable laws.
15. General.
- No Waiver. At-Bay’s failure to enforce at any time any provision of this Agreement does not waive our right to do so later. And, if we do expressly waive any provision of this Agreement, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by and us to be legally binding.
- Assignment. You will not assign or otherwise transfer your subscription to the Services, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer in violation of this subsection will be null and void. Subject to this subsection, this Agreement is binding on both you and At-Bay and each of our successors and assigns.
- Subcontracting. At-Bay may provide all or part of the Services through its vendors, Affiliates, or subcontractors, and shall be responsible for their compliance with this Agreement.
- Relationship. You and At-Bay are independent contractors in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and At-Bay will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. Except with respect to Claims covered under Section 12, you and At-Bay also are solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on Account of each of our respective activities, or those of each of our respective employees or agents, in the performance of this Agreement. Neither you nor At-Bay has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.
- Notices. Where At-Bay requires that you provide an email address, you are responsible for providing At-Bay with your most current email address. If the last email address that you provided to At-Bay is not valid, At-Bay’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to At-Bay at the following address: 1 Post Street, 14th Floor, San Francisco, CA 94104 or by emailing legal@at- bay.com. Any mailed notice shall be deemed given when received by At-Bay by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
- Entire Agreement. Except as provided in this Agreement and other documents incorporated herein by reference, this Agreement supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written with respect to the subject matter hereof. No oral or written information or advice given by At-Bay, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
- Electronic Communications. The communications between you and At-Bay may use electronic means. For contractual purposes you (a)consent to receive communications from At-Bay in an electronic form or through phone calls to any number associated with your Account; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that At-Bay provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Force Majeure. No failure, delay, or default in performance of any obligation of a party shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority, fire, strike, lockout or other labor dispute, flood, terrorist act, war, riot, thef, earthquake, or other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
- Governing Law and Venue. This Agreement will be governed by and interpreted according to the laws of the State of California applicable therein without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. With respect to any claim arising out of or relating to this Agreement or the Services, Customer and At-Bay consent to personal jurisdiction in, and the exclusive venue of, the courts in San Francisco County, California.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JURY.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE MEDIATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE MEDIATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Limitations Period. YOU AND AT-BAY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, SERVICES, OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.