Terms of Service
Last updated on: January 05, 2022
By signing up for, or using the ByCuality services or any of the services of ByCuality Inc. or its affiliates (“ByCuality”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”). The services offered by ByCuality under the Terms of Service include various products and services to help you sell goods and services to buyers, whether online (“Online Services”), in person (“POS Services”), or both. Any such services offered by ByCuality are referred to in these Terms of Services as the “Services”. Any new features or tools which are added to the current Services shall be also subject to the Terms of Service. You can review the current version of the Terms of Service at any time at https://www.ByCuality.com/legal/terms. ByCuality reserves the right to update and change the Terms of Service by posting updates and changes to the ByCuality website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.
Everyday language summaries are provided for convenience only and are not legally binding. Please read the “Terms of Service” for the complete picture of your legal requirements. By using ByCuality or any ByCuality services, you are agreeing to these terms. Be sure to occasionally check back for updates.
1. Account Terms
- You must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
- To access and use the Services, you must register for a ByCuality account (“Account”) by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. ByCuality may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
- You acknowledge that ByCuality will use the email address you provide as the primary method for communication.
- You are responsible for keeping your password secure. ByCuality cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password.
- You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (“Materials”).
- A breach or violation of any term in the Terms of Service, including the AUP, as determined in the sole discretion of ByCuality will result in an immediate termination of your services.
You are responsible for your Account and any Materials you upload to the ByCuality Service. Remember that with any violation of these terms we will cancel your service.
If we need to reach you, we will send you an email.
2. Account Activation
2.1 ByCuality Account
- Subject to section 2.1.2, the person signing up for the Service will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Service.
- If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
2.5 Domain Names
- Upon purchasing a domain name through ByCuality, domain registration will be preset to automatically renew each year so long as your ByCuality Account remains active. You acknowledge that it is your sole responsibility to deactivate the auto-renewal function should you choose to do so.
The person signing up for the ByCuality Service is responsible for the account and is bound by these Terms of Service. If you signup on behalf of your employer, your employer owns the account and is also bound by our Terms of Service.
We automatically create accounts for you to accept payments. You are responsible for activating and deactivating these accounts.
Any domain you purchase through us will automatically renew unless you opt out.
3. General Conditions
- Technical support is only provided to paying Account holders and is only available via email.
- The Terms of Service shall be governed by and interpreted in accordance with the laws of Spain applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Spain with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
- You acknowledge and agree that ByCuality may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on ByCuality’s website, available at https://www.ByCuality.com/legal/terms and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Terms of Service are posted to ByCuality’s website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Service.
- You may not use the ByCuality service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of Spain. You will comply with all applicable laws, rules and regulations in your use of the Service.
- You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by ByCuality.
- You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use ByCuality or ByCuality trademarks and/or variations and misspellings thereof.
- Questions about the Terms of Service should be sent to support@ByCuality.com.
- You understand that your Materials (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit Card information is always encrypted during transfer over networks.
- The Services allow you to send certain communications to your customers by mail.
- The Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and ByCuality’s Terms of Service available in another language, the most current English version of the Terms of Service at https://www.ByCuality.com/legal/terms will prevail.
The ByCuality service belongs to us. You are not allowed to rip it off or use it for any illegal or sketchy purpose.
If a dispute arises the issue will be dealt with in the Spain.
Your Materials may be transferred unencrypted and may be altered, but credit card information is always encrypted.
4. ByCuality Rights
- We reserve the right to modify or terminate the Service for any reason, without notice at any time.
- We reserve the right to refuse service to anyone for any reason at any time.
- We may, but have no obligation to, remove Materials and suspend or terminate Accounts if we determine in our sole discretion that the goods or services offered via a store, or the Materials uploaded or posted to a store, violate our Acceptable Use Policy (“AUP”) or these Terms of Service.
- Verbal or written abuse of any kind (including threats of abuse or retribution) of any ByCuality customer, ByCuality employee, member, or officer will result in immediate Account termination.
- ByCuality does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the Service.
- We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that ByCuality employees and contractors may also be ByCuality customers/merchants and that they may compete with you, although they may not use your confidential information in doing so.
- In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
- ByCuality retains the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Account owner, ByCuality reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
We can modify, cancel or refuse the service at anytime.
In the event of an ownership dispute over a ByCuality account, we can freeze the account or transfer it to the rightful owner.
5. Limitation of Liability
- You expressly understand and agree that ByCuality shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of or inability to use the service.
- In no event shall ByCuality or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our site, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, ByCuality partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference (including the AUP), or your violation of any law or the rights of a third party.
- Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
- ByCuality does not warrant that the Service will be uninterrupted, timely, secure, or error-free.
- ByCuality does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
- ByCuality does not warrant that the quality of any products, services, information, or other Materials purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
We are not responsible if you break the law, breach this agreement or go against the rights of a third party, especially if you get sued.
Service is “as is” so it may have errors or interruptions and we provide no warranties.
6. Waiver and Complete Agreement
The failure of ByCuality to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between you and ByCuality and govern your use of the Service, superseding any prior agreements between you and ByCuality (including, but not limited to, any prior versions of the Terms of Service).
If ByCuality chooses not to enforce any of these provisions at any time, it does not mean that they give up that right later.
These terms of service make up the agreement that applies to you. This means that any previous agreements between you and ByCuality don’t apply if they conflict with these terms.
7. Intellectual Property and Customer Content
- We do not claim any intellectual property rights over the Materials you provide to the ByCuality service. All Materials you upload remains yours. You can remove your ByCuality store at any time by deleting your Account.
- By uploading Materials, you agree: (a) to allow other internet users to view the Materials you post publicly to your store; (b) to allow ByCuality to store, and in the case of Materials you post publicly, display, your Materials; and (c) that ByCuality can, at any time, review all the Materials submitted to its Service, although ByCuality is not obligated to do so.
- You retain ownership over all Materials that you upload to a ByCuality store; however, by making your store public, you agree to allow others to view Materials that you post publicly to your store. You are responsible for compliance of the Materials with any applicable laws or regulations.
- We will not disclose your confidential information to third parties (“Your Confidential Information”), except as required in the course of providing our services. Your Confidential Information includes any Materials or information provided by you to us which is not publicly known. Your Confidential Information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
- ByCuality shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your store to promote the Service.
Anything you upload remains yours and your responsibility.
8. POS Services
Not avalaible to actuality
In addition to the terms applicable to Services generally, the following terms apply to your access and use of the POS Services. The POS Services include the ByCuality POS software (“POS Software”), the ByCuality POS website, located at https://www.ByCuality.com/pos, programs, documentation, apps, tools, internet-based services and components, ByCuality’s POS hardware (“POS Equipment”) and any updates thereto provided to you by ByCuality.
- Access to and use of the POS Services requires that you have an active and valid Account.
- If your POS Services are enabled with ByCuality Payments, you cannot concurrently use any other payment processing service. The payment gateway used for your POS Services must the same as that used for your Online Services, if applicable.
- You can terminate your POS Services without terminating your Account or any other Services you subscribe to, and in such case, you will continue to be billed, and will pay for, the Services (other than the terminated POS Services).
- You agree to use the POS Services in accordance with all procedures that may be provided by ByCuality from time to time.
- While the POS Services use encryption technology, and the law generally prohibits third parties from monitoring transmission, we cannot guarantee security with respect to the connection to the POS Services, and we will not be liable for any unauthorized access to or use of data transmitted via the POS Services.
- POS Equipment is purchased, and not leased. Purchase of the POS Equipment is subject to the POS Equipment Agreement, located at https://www.ByCuality.com/legal/notice. Upon payment by you for the POS Equipment, and confirmation to you of shipment of the POS equipment, you will acquire ownership of and title to the hardware components of the POS Equipment, and you will be licensed to access and use all POS Software installed in the POS Equipment (and any updates thereto), on a limited, non-exclusive, revocable, non-sublicensable, non-transferable basis, solely for the purposes of using the POS Services. POS Equipment is subject to our Return Policy, which can be found at https://hardware.ByCuality.com/pages/return-policy. Returns and refunds are not available for the Chip & Swipe Reader, Swipe (Audio Jack) and physical gift cards purchased from the ByCuality Hardware Store.
- The Fees for POS Services shall be determined based on the number of locations using the POS Services. Locations are defined by business address and are used for associating orders with a specific business address. Locations are added through the ByCuality web administrative console. The number of locations using POS Services will also be detected by us and billed accordingly as part of your regular Billing Cycle. In the event of any discrepancy between the number of locations added by you through the ByCuality web administrative console and the number of locations detected by ByCuality, the number of locations detected by ByCuality shall be deemed to be correct.
If you use our POS Services, you must use the same payment processor that you use for the Online Services. You can cancel your POS Services at any time and still keep your Online Services active. We take data security very seriously, but we can’t guarantee that all transmissions using the POS Equipment are 100% secure. All transactions transmitted using the POS Equipment are at your own risk. Remember that the POS equipment is purchased, not leased. Our POS Equipment return policy applies to all POS equipment, except Chip & Swipe Reader, Swipe (Audio Jack) and physical gift cards.
9. ByCuality Shipping
Dropshipping service providers must accept the terms of service and be responsible for payments and invoices from vendors. In no case ByCuality is responsible for llos taxes, returns, insurance, shipments, comments, information, invoices, delivery notes, and any other tool or support among customers, suppliers, vendors and shipping companies.
10. Theme Store
- You may establish the appearance of your ByCuality store with a design template from ByCuality’s Theme Store (“a Theme”). If you select a Theme, you are licensed to use it for a single store only. You are free to transfer a Theme to a second one of your own stores if you close your first store. To initiate a transfer of a Theme to a second one of your stores, please email support@ByCuality.com. You are not permitted to transfer or sell a Theme to any other person’s store on ByCuality or elsewhere. Multiple stores require multiple downloads and each download is subject to the applicable fee. ByCuality gives no assurance that a particular Theme will remain available for additional downloads.
- You may solicity to modify the Theme to suit your store. ByCuality may add or modify the footer that refers to ByCuality at its discretion. ByCuality may modify the Theme where it contains, in our sole discretion, an element that violates the ByCuality AUP or the Terms of Service, even if you received the Theme in that condition. ByCuality may modify the Theme to reflect technical changes and updates as required.
- The intellectual property rights of the Theme remain the property of the designer (ByCuality). If you exceed the rights granted by your solicity of a Theme, the designer (ByCuality) may take legal action against you, and may take administrative action such as modifying your store or closing your store
- Technical support for a Theme is the responsibility of the designer (Expert), and ByCuality accepts no responsibility to provide such support. ByCuality may be able to help you contact the designer.
- It is the responsibility of the user, and not ByCuality, to ensure that the installation of a new theme does not overwrite or damage the current or preexisting theme, or UI, of the user.
You can change our Themes if you solicited. Look our plans of expert. Note that Themes may disappear over time and are subject to change.
11. ByCuality Experts
- ByCuality Experts is an online directory of independent third parties («Experts») that can help you build and operate your ByCuality store. ByCuality does not employ Experts and is in no way affiliated with Experts.
- ByCuality does not endorse Experts and takes no responsibility for any work performed by Experts or failure to fulfill a work order. Links to websites of Experts, announcements about services or offers, and responses to email inquiries regarding Experts, are provided solely for informational purposes at the discretion of ByCuality and shall not be construed or imply permission, or an affiliation, position regarding any issue in controversy, authentication, appraisal, sponsorship, nor a recommendation or endorsement of any website, product, service, activity, business, organization, or person, and any offers, products, services, statements, opinions, content or information on any linked third-party website.
- Under no circumstances shall ByCuality be liable for any direct, indirect, incidental, special, consequential, exemplary or other damages whatsoever, including, without limitation, any direct, indirect, incidental, special, consequential, exemplary or other damages that result from any contractual relationship between you and ByCuality experts. These limitations shall apply even if ByCuality has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by law.
Experts are not employees of ByCuality and we are not responsible for them.
12. Payment of Fees
- You will pay the Fees applicable to your subscription to Online Service and/or POS Services (“Subscription Fees”) and any other applicable fees, including but not limited to applicable fees relating to the value of sales made through your store when using all payment providers other than ByCuality Payments (“Transaction Fees”), and any fees relating to your purchase or use of any products or services such as ByCuality Payments, POS Equipment, shipping, apps, Themes, domain names or Third Party Services (“Additional Fees”). Together, the Subscription Fees, Transaction Fees and the Additional Fees are referred to as the “Fees”.
- You must keep a valid credit card on file with us to pay for all incurred and recurring Fees. ByCuality will charge applicable Fees to the credit card account that you authorize (“Authorized Card”), and ByCuality will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
- Subscription Fees are paid in advance and will be billed in 30 day intervals (each such date, a “Billing Date”). Transaction Fees and Additional Fees will be charged from time to time at ByCuality’s discretion. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Account Owner via the email provided. As well, an invoice will appear on the Account page of your ByCuality administration console. Users have approximately two weeks to bring up and settle any issues with the billing of Subscription Fees.
- If we are not able to process payment of Fees using the Authorized Card, we will make a second attempt to process payment using the Authorized Card 3 days later. If the second attempt is not successful, we will make a final attempt 3 days following the second attempt. If our final attempt is not successful, we may suspend and revoke access to your Account. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next Billing Cycle. You will not be able to access your Account during any period of suspension. If the outstanding Fees remain unpaid for 60 days following the date of suspension, ByCuality reserves the right to terminate your Account.
- All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).
- You are responsible for all applicable Taxes that arise from or as a result of your subscription to or purchase of ByCuality’s products and services. These Taxes are based on the rates applicable to the billing address you provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to your Authorized Card. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to ByCuality of your exemption. If you are not charged Taxes by ByCuality, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.
- You must maintain your current location in the administration menu of your ByCuality store and promptly update your location if you move jurisdictions. If you change jurisdictions you must promptly update your location in the administration menu.
- ByCuality does not provide refunds.
A valid credit card is required for all stores. You will be billed for your Subscription Fees every 30 days. Any Transaction Fees or Additional Fees will be charged to your credit card. If we are not able to process payment of Fees using your credit card, we will try your credit card again 3 days following the initial failed attempt. If we are unable to process payment of Fees on the second attempt, we will attempt to process payment of Fees on your credit card a third and final time 3 days following the second attempt. If payment of Fees is unsuccessful after three attempts, ByCuality may freeze your store. You may be required to remit Taxes to ByCuality or to self-remit to your local taxing authority. No refunds.
13. Cancellation and Termination
- You may cancel your Account at anytime by emailing support@ByCuality.comand then following the specific instructions indicated to you in ByCuality’s response.
- Upon termination of the Services by either party for any reason:
- ByCuality will cease providing you with the Services and you will no longer be able to access your Account;
- unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
- any outstanding balance owed to ByCuality for your use of the Services through the effective date of such termination will immediately become due and payable in full; and
- your store website will be taken offline.
- If you purchased a domain name through ByCuality, upon cancellation your domain will no longer be automatically renewed. Following cancellation, it will be your sole responsibility to handle all matters related to your domain with the domain provider.
- If at the date of termination of the Service, there are any outstanding Fees owing by you, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
- We reserve the right to modify or terminate the ByCuality Service or your Account for any reason, without notice at any time.
- Fraud: Without limiting any other remedies, ByCuality may suspend or terminate your Account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.
To initiate a cancellation, email support@ByCuality.com. ByCuality will respond with specific information regarding the cancellation process for your account. Once cancellation is confirmed, domains purchased through ByCuality will no longer be automatically renewed. If you cancel in the middle of your billing cycle, you’ll have one last email invoice.
We may change or cancel your account at any time. Any fraud and we will suspend or cancel your account.
14. Modifications to the Service and Prices
- Prices for using the Services are subject to change upon 30 days’ notice from ByCuality. Such notice may be provided at any time by posting the changes to the ByCuality Site (ByCuality.com) or the administration menu of your ByCuality store via an announcement.
- ByCuality reserves the right at any time, and from time to time, to modify or discontinue, the Service (or any part thereof) with or without notice.
- ByCuality shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
We may change or discontinue the service at anytime, without liability.
15. Third Party Services
- In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, ByCuality’s partners or other third parties.
- ByCuality may from time to time recommend, provide you with access to, or enable third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use, including via the ByCuality App Store. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through the Services or ByCuality’s website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. In some instances, ByCuality may receive a revenue share from Third Party Providers that ByCuality recommends to you.
- We do not provide any warranties with respect to Third Party Services. You acknowledge that ByCuality has no control over Third Party Services and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on ByCuality’s websites, including the ByCuality App Store, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with ByCuality. ByCuality does not guarantee the availability of Third Party Services and you acknowledge that ByCuality may disable access to any Third Party Services at any time in its sole discretion and without notice to you. ByCuality is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. ByCuality strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge to your customers.
- If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. ByCuality is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
- Google Maps is a Third Party Service that is used within the Services. Your use of the Service is subject to your acceptance of the Google Maps and Earth Enterprise Universal Acceptable Use Policy, as it may be amended by Google from time to time.
- Under no circumstances shall ByCuality be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider, including any Expert. These limitations shall apply even if ByCuality has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
- You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, ByCuality partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
We are not responsible for third party services so use them at your own risk. If you use any third party services on the ByCuality platform, you permit us to send your data to those services. If you use them you agree that we do not provide a warranty, so get advice beforehand.
16. Beta Services
From time to time, ByCuality may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to all merchants (“Beta Services”). Beta Services may be subject to additional terms and conditions, which ByCuality will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered ByCuality Confidential Information and subject to the confidentiality provisions in this agreement. Without limiting the generality of the foregoing, you agree that you will not make any public statements or otherwise disclose your participation in the Beta Services without ByCuality’s prior written consent. ByCuality makes no representations or warranties that the Beta Services will function. ByCuality may discontinue the Beta Services at any time in its sole discretion. ByCuality will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. ByCuality may change or not release a final or commercial version of a Beta Service in our sole discretion.
17. DMCA Notice and Takedown Procedure
ByCuality supports the protection of intellectual property and asks ByCuality merchants to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to ByCuality’s designated agent using our form. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material. For more information, see our DMCA Notice and Takedown Procedure.
ByCuality respects intellectual property rights and you should too. If we receive a DMCA Notice, we may disable access or remove the allegedly infringing content from your website. If you don’t think the claim is valid, you can proceed with a counter notification.
If you believe one of our merchants is infringing your intellectual property rights, you can send ByCuality a DMCA Notice. We will expeditiously disable access or remove the content and notify the merchant. Be advised that we post all notices we receive.
18. ByCuality Confidential Information
During the course of your use of the Services, you may receive information relating to us, or to the Services, that is not known to the general public including information related to our security program and practices (“ByCuality Confidential Information”). You agree that: (a) ByCuality Confidential Information will remain ByCuality’s exclusive property; (b) you will use ByCuality Confidential Information only as is reasonably necessary for your use of or participation in the Services; (c) you will not otherwise disclose ByCuality Confidential Information to any third party, except that you may disclose to your affiliates, employees, subcontractors and agents who, in each case, are subject to confidentiality obligations at least as protective of the ByCuality Confidential Information as those contained in these Terms of Service; and (d) you will take all reasonable measures to protect the ByCuality Confidential Information against any use or disclosure that is not expressly permitted in these Terms of Service.
If you receive ByCuality Confidential Information you are required to protect it.
19. Privacy & Data Protection
Additionally, if: (a) you are established in the European Economic Area (EEA); (b) you provide goods or services to customers in the EEA; or (c) you are otherwise subject to the requirements of the EU General Data Protection Regulation, ByCuality’s collection and use of personal information of any European residents is also subject to our Data Processing Addendum.