2. REGISTRATION, ELIGIBILITY FOR SERVICES, PAYMENT, AND INFORMATION SUBMISSION
Registration and Account: In order to utilize some or all of the Services, you may be required to register and create an account, and you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete. You agree that all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. You acknowledge that your account is personal to you, that you will use all reasonable efforts to keep your account information personal and confidential, and you agree not to provide any other person with access to the Services using your username and password. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You shall protect your password, username, and any other piece of information as part of our security procedures and you must treat such information as confidential. You take full responsibility for your own and third-party activities that occur under your account. If you create an account on behalf of an entity, these Terms bind both you and the entity, and you represent and warrant to us that you have full ability and authority to so bind that entity to these Terms, our Privacy Policy, and our Acceptable Use Policy. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service.
Payment: Your access to the Services is conditioned upon your payment to Rayobyte of all applicable fees for your subscription. You agree to pay the applicable fees for the Service when due and to reimburse Rayobyte for all collection costs and interest at the maximum rate allowable by law. Unless otherwise stated, all fees are stated in U.S. dollars. Prices are subject to change.
Payment Extension: If you are unable to pay your bill by the due date and your account is eligible, we will offer you up to 10 additional calendar days to pay your bill. You must formally request an extension of your due date at least one business day before the end of your billing cycle. All extension requests must be submitted in writing to Rayobyte customer support. Our team reserves final decision-making on whether to approve or deny an extension request.
This extension does not prevent your payment from being considered late, and you will be charged a minimum late payment fee of either $20 per day or 1% of the total invoice amount, whichever is greater. If granted an extension, the customer’s subscription renewal date remains the same regardless of how late the payment is. We do not extend the subscription renewal date. Failure to request an extension or pay your bill within the extension period will result in automatic termination of your Services. Upon termination, all proxies will be returned to the general pool. Rayobyte cannot guarantee you will get them back.
Example: The customer has 100 dedicated proxies on the starter plan and pays $200 on their subscription renewal date, which falls on the first day of each month. The customer contacts support to request a five-day extension of their payment due date for the month of January. If the account is deemed eligible, the extension will be granted and a $100 ($20 per day * 5 days) late payment fee will be added to their invoice with a new due date of January 6. The following month’s payment will be due on the subscription renewal date, February 1.
Maintenance or Support: Rayobyte is not under any obligation to provide maintenance or support for the Services. Rayobyte may provide maintenance or support for the Services in Rayobyte’s sole discretion
Information Submission and Age Restriction: By submitting any information, including any User Content as defined below, through the Services, you represent and warrant that you are 18 years of age or older, and, if under the age of majority in your state, you are either an emancipated minor, or have obtained the legal consent of your parent or legal guardian to enter into these Terms and use the Services. Rayobyte does not intend to use the Services to collect any information from children under age 18. Pursuant to 47 U.S.C. § 230(d), you are notified that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. For information on providers of such services, contact your information technology professional.
Refusal of Service: Rayobyte reserves the right, with prior written notice, to terminate the account of, or refuse service to, any persons for any reasons or no reason at all, including, but not limited to, where any person violates these Terms, violates any party’s intellectual property rights, abuses other Website users, misuses the Website or its Services, or otherwise engages in inappropriate conduct, as determined by Rayobyte in its sole and absolute discretion. You may not access the Services if you are a direct competitor of Rayobyte, except with Rayobyte’s prior written consent. By accessing the Services, continuing to access the Services, purchasing any products of services through the Services, or submitting any information through the Services, you represent and warrant that you are not affiliated in any way with any competitor of Rayobyte, including any competitor’s respective affiliates, parent companies, subsidiaries, and/or agents.
Electronic Communications: By accepting these Terms and using the Services, you consent to receive electronically all communications or notices sent by Rayobyte with regard to the Services or these Terms to any email address you provide to Rayobyte. It is your responsibility to update your contact information provided to Rayobyte and to maintain a current and active email address at all times that Rayobyte requires you to do so. In order to receive electronic communications, you must have a working connection to the internet and meet any specifications required by your email service provider. Rayobyte may send communications in a non-electronic format at Rayobyte’s discretion.
4. PROPRIETARY RIGHTS
The Services and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Rayobyte, its licensors or other third-party providers of such material are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. Rayobyte and all related names, logos, product and service names, designs and slogans are trademarks of Rayobyte or its affiliates. You may not use such marks without Rayobyte’s prior written permission. All other names, logos, product and service names, designs and slogans included in the Services are the trademarks of their respective owners.
You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:
•
Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
•
You may store files that are automatically cached by your Web browser for display enhancement purposes.
•
Modify copies of any materials from this site.
•
Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
•
Delete, remove, alter, or obscure any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
If you wish to make any use of material on the Website other than that set out in this section, you must obtain Rayobtye’s prior written permission.
If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms, then, in addition to any remedies we may have at law or in equity, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
5. LICENSE; SUBSCRIPTIONS, AND REFUNDS
License: In order to use some of the Services’ features, you may require the use of certain intellectual property developed by Rayobyte, potentially including but not limited to software, computer code, certain business methods and practices, and other types of intellectual property (cumulatively, the “Rayobyte IP”). Subject to, and in accordance with, these Terms (and any additional terms that may be specific to your applicable Services), Rayobyte grants to you, and you accept from Rayobyte, a limited, revocable, non-exclusive, and non-transferable license to use the Rayobyte IP and the Services. Rayobyte reserves all rights not expressly granted to you hereunder. This license is automatically revoked, without further necessary action from Raybobyte, if you violate any of these Terms. The grant of this license is not, and shall not be construed as, a grant of any right to you to use, receive or view, copies of source code, schematics, master copies, design materials or other information used by You in utilization of the Services.
Prohibitions: You must not do, or permit others to do, any of the following: (a) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print any source code or object code or other runtime objects or files distributed with the Services; (b) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Services; (c) rent, lease, distribute (or redistribute), provide or otherwise make available the Services, in any form, to any third party (including in any service bureau or similar environment); or (d) use, install, or make available the Website, in whole or in part, through a wide area network including but not limited to World Wide Web sites, intranets, or Application Service Providers (ASP). In addition, you will not violate or attempt to violate the security of Rayobyte’s networks or servers, including (x) access data not intended for you or log into a server or account which you are not authorized to access; (y) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization from Rayobyte; or (z) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing, crashing or otherwise compromising or interfering with the function of any system.
Product Trials: Rayobyte may, in its sole discretion, offer trials from time to time for some Rayobyte Services. The failure to cancel your trial during the stated trial period will result in you being charged for the associated purchases during the standard one-month billing period, which will thereafter be treated as a Subscription, as further provided for in these Terms. By participating in any trial, you consent to Rayobyte commencing billing at the end of the trial period against any payment method(s) you may have on file with Rayobyte without prior notice or further consent from you. For more details, please review the specific terms of the trial offer. Rayobyte does not guarantee that any portion of the Services will always be available for free. Our Risk-Free Trial policy can be found on our website and is subject to change at our discretion.
Subscriptions. Rayobyte may offer certain Services on a subscription basis (each such Service a “Subscription”) to one or more subscribers as specified in the applicable Subscription (each a “Subscriber”). Please review the specific terms of your Subscription at point of purchase for more information. Subject to, and in accordance with, these Terms, and conditioned upon timely, proper, and continued payment of any applicable Subscription Fees, if any, Rayobyte hereby grants you a limited, revocable, exclusive, non-transferable license to use the Services comprising the Subscription, as allowed in your Subscription, solely for your own personal purposes, for such time as provided in the applicable Subscription (the “Subscription Term”). The license herein granted shall immediately terminate following the expiration of the Subscription Term or upon any failure to promptly and properly pay any applicable Subscription Fee, without further action from Rayobyte, or as otherwise provided in these Terms. This license belongs to the Subscriber(s) as specified in the terms of the applicable Subscription. Neither this license, nor the Services, may be shared, sold, or otherwise transferred to anyone other than the Subscriber. No Subscriber may not substitute another Subscriber during the Subscription Term of any Subscription absent the express written prior consent of Rayobyte. The grant of the license(s) under these Terms are not, and shall not be construed as, a grant of any right to any Subscriber of any Rayobyte intellectual property rights in the Services. No part of the Services, or the related files, including those comprising a Subscription, may be reproduced or transmitted in any form, by any means (electronic, photocopying, emailing, recording, or otherwise) without the prior written permission from Rayobyte. In the event that you violate any part of these Terms, or Rayobyte reasonably believes you have violated any part of these Terms, all licenses granted to you by Rayobyte shall automatically terminate without further action from Rayobyte, and Rayobyte may suspend or terminate your Subscription(s).
Subscription Fee. Your purchase of a Subscription (or any other products or Services, as Rayobyte may offer from time to time) is subject to these Terms and to any additional terms and conditions set forth in writing by Rayobyte in connection with your purchase. In purchasing a Subscription, you agree to pay to Rayobyte the designated and/or recurring fee (a "Subscription Fee") as provided in the specific terms of your Subscription. Unless otherwise stated in any superseding, written agreement between you and Rayobyte, your Subscription will automatically renew on a yearly basis unless you provide Rayobyte written notice your intent to cancel your Subscription at least fifteen (15) days prior to the end of the current Subscription Term of a given Subscription. Notices of termination should be completed via your user dashboard or sent to contact
[email protected]. Subscription Fees for each renewed year shall be automatically processed and charged (as well as any applicable taxes) to the payment mechanism associated with the Subscriber's account or previously provided payment methods that Rayobyte may have on file for the Subscriber. Rayobyte reserves the right, at the its sole discretion, to alter the Subscription Fee upon thirty (30) days' notice to you. While you may cancel your Subscription at any time, Subscription Fees are not refundable, and you shall not be entitled to a return of any part of your Subscription Fees in the event you cancel your Subscription after a payment has been processed. Notwithstanding the foregoing, Rayobyte may, but is in no way obligated to, review and grant refunds in its sole and absolute discretion and on a case-by-case basis. Rayobyte’s grant of grant of any refund to any Subscriber does not waive any rights of Rayobyte under these Terms, and any such refund to any Subscriber of a given Subscription shall not entitle that Subscriber to a refund for any other Subscription, nor shall it entitle any other Subscriber to a refund for a similar or any other Subscription.
Subscriber Information. A Subscription requires that each Subscriber provide accurate and up-to-date contact, billing, and delivery information. Rayobyte is in no way responsible for any cessation or failure of the Services or a Subscription as a result of a Subscriber’s non-compliance with this informational requirement or any interruption or failure in the Services due to your failure to update your contact, billing, and/or delivery information. Delivery of any deliverables shall be made solely to the delivery information of record for each Subscriber's account.
6. ACCEPTABLE USE POLICY; COMPLIANCE AND PROHIBITED ACTIONS
Your use of the Services are governed by the Rayobyte Acceptable Use Policy, which is incorporated herein by this reference. Please review the Acceptable Use Policy in detail prior to using the Services.
You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights or terms of any third-parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, or other proprietary or property right, false advertising, telemarketing, unfair competition, defamation, invasion of privacy, rights of celebrity, or other federal or state law, rule, or regulation. You may not use the Services for any fraudulent purposes. You may not use the Services to gain unauthorized access to any computer or website or to interfere with or compromise any network or system.
Any payments made that are suspected of fraud or identified by a payment processor as suspected fraud is subject to review by our operations team. We regularly review disputes that arise from disputes or chargebacks and will ban current and future accounts that are found to have used a fraudulent payment method.
7. DIGITAL MILLENNIUM COPYRIGHT ACT
Rayobyte respects the intellectual property rights of others and complies with safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”). Anyone who believes that their work has been reproduced on the Services in a way that constitutes copyright infringement may notify Rayobyte’s designated copyright agent in accordance with Title 17, United States Code, Section 512(c), by providing the following information:
1.
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
4.
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications of claimed infringement should be forwarded to Rayobyte’s designated agent as follows:
Paul J. Halbur
500 Energy Plaza
409 South 17th Street
Omaha, NE 68102-2663
Telephone: (402) 341-6000
Email:
[email protected]The full legal name and physical address of the service provider is as follows:
Blazing SEO, LLC DBA Rayobyte
233 S 13th Street, Suite 1100
Lincoln, NE 68508
Alternate names the public may be likely to use to search for our designated agent include: Blazing SEO, Blazing SEO LLC, blazingseollc.com, and Blazing Proxies.
After receiving a valid DMCA notification of claimed infringement, we will process and investigate the claim and will take appropriate actions under the DMCA, including expeditiously removing or disabling access to any material claimed to be infringing or claimed to be the subject of infringing activity. We will take reasonable steps promptly to notify the user who submitted the material that we have removed or disabled access to such material.
Counter-Notification: If you posted or submitted material to Rayobyte which Rayobyte removed or disabled access to pursuant to a DMCA notification of claimed infringement, and you believe your material is not infringing and the material was removed or disabled as a result of a mistake or misidentification, you may send a counter-notification containing the following information in writing to Rayobyte’s designated agent listed above:
1.
Your physical or electronic signature;
2.
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3.
A statement under penalty of perjury that the you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4.
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Rayobyte may be found, and that you will accept service of process from the person who provided the notification of claimed infringement or an agent of such person.
If a valid counter-notification is received by our designated agent, we will send a copy of the counter-notification to the original complaining party informing that person that we will replace the removed material or cease disabling access to it in ten (10) business days. Unless our designated agent first receives notice from the original complaining party that such party has filed an action seeking a court order to restrain the alleged infringement, we will replace or restore access to the material in ten (10) to fourteen (14) business days after our designated agent’s receipt of the counter-notification, at our sole discretion.
Rayobyte reserves the right, in its sole discretion, to terminate accounts for users that are deemed to be repeat copyright infringers.
9. USER-GENERATED/THIRD-PARTY CONTENT
We use reasonable efforts to protect the information we collect on the Services. Unfortunately, however, no security systemaOverview: The Services may, from time to time, allow users and third-parties to upload, post, or otherwise transmit user-generated content, including, but not limited to, photos, videos, reviews, and other forms of data or communications (“User Content”). can be guaranteed to be 100% effective. Accordingly, we cannot and do not guarantee the security of your personal information and cannot assume liability for improper access to it. Please use caution and discretion before you decide to submit any confidential information through the Services.
User Obligations and License; Intellectual Property: You alone own and are solely responsible for all User Content you post, upload, or otherwise transmit (collectively “Post”) through the Services and once Posted, it cannot always be withdrawn. You agree not to Post through the Services any User Content which is false, defamatory, infringes upon another party’s intellectual property, or is otherwise illegal. By Posting User Content on the Services, you warrant and represent that you have the right to post such information and that such information is lawful, truthful, and accurate.
By Posting User Content, you automatically grant, and warrant and represent that you have the right to grant, Rayobyte a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, store, copy, perform, display, and distribute such User Content for any purpose and to prepare derivative works of, or incorporate into other works, such User Content.
You assume all risks associated with your Posted User Content on the Services, including anyone’s reliance on its quality or reliability. By Posting User Content you may expose yourself to liability if, for example, your Posted User Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
Testimonials: If you Post or otherwise transmit to Rayobyte a testimonial statement describing your results using any service or product, you grant, and warrant and represent that you have the right to grant, Rayobyte a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, copy, perform, display, and distribute the testimonial statement for any purpose, including posting on the Services or using in any Rayobyte advertising materials.
By Posting or sending any testimonials of your results, you represent that the testimonial statement is true, that you used the service or product as directed (if applicable), and that the testimonial accurately depicts your experience using the service or product.
If you no longer wish Rayobyte to use your written testimonial statement, please contact us. If we do not hear from you, we will assume you still stand behind your testimonial statement.
If you received any kind of compensation, whether monetary, in the form of a free service or product, or otherwise, you must notify us of this fact when posting or sending your testimonial.
Communications Decency Act: As provided in 47 U.S.C. § 230(c)(1), Rayobyte is only a distributer, and not the publisher or speaker, of any User Content. As such, Rayobyte cannot be held liable for making available any User Content which may be false or inaccurate. Any information or opinions contained in the User Content made available through the services are those of their respective authors alone. Rayobyte does not guarantee the accuracy, completeness, or truthfulness of any User Content. Under no circumstances will Rayobyte be responsible for any loss or damage resulting from any person’s reliance on any User Content.
Reservation of Rights: Subject to Section VII above regarding the DMCA, Rayobyte reserves the right to remove or not remove any User Content from the Services for any reason or no reason at all, in Rayobyte’s sole discretion. This reservation includes the exclusive right to decide whether to publish, withdraw, postpone, or alter any User Content. Rayobyte reserves the right, but does not undertake any affirmative obligation, to screen, monitor, or filter User Content.
Information Storage and Access: Subject to applicable law, Rayobyte reserves the right, in its sole discretion, to determine whether and how long to store User Content and user data. Rayobyte will not be responsible for any liability related to the deletion or removal or any data or content maintained on the Services or Rayobyte’s servers.
Suggestions: By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third-parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Rayobyte and its users any claims and assertions of any rights, whether intellectual property rights or otherwise, contained in such Feedback.
10. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
Rayobyte provides a number of tools and services including IP proxies. Your use of the Services and any IP proxies is at your own risk.
The disclaimers contained in these Terms apply with equal force to the Services as well as to any IP proxies or other services or products provided to any user through the Services. Rayobyte does not represent or warrant and expressly disclaims any warranty that (i) any information provided by the Services will be accurate, (ii) the Services will be error-free or accessible at all times, (iii) defects will be corrected, (iv) the Services or the server that makes them available, are free of viruses or other harmful component, or (v) the use or the results of the use of the Services will be correct, accurate, timely, or otherwise reliable.
It is expressly understood by all users that the Services may from time to time be inaccessible, inoperable, or may not provide all features as a result of multiple factors which may or may not be within Rayobyte’s control. These factors may include, but are not limited to, variables in internet, telecommunications, data, cellular or satellite services provided by your wireless carrier to your mobile device, geographic limitations, poor wireless signal strength, periodic maintenance to the Services, malfunctions in the Services, limitations due to your particular mobile device, or any other reason which may prevent the Services from being accessible at all times. Rayobyte disclaims any liability as a result of any user’s inability to access or use the Services at a particular time, location, on a particular device, or using a particular wireless provider.
Further, Rayobyte expressly disclaims any representation or warranty relating to any products, services, or companies displayed, described, advertised, sold, reviewed, recommended, linked to, or pictured on the Services. Rayobyte does not necessarily endorse any such products, services, or companies and does not warrant that any such products, services, or companies are available, will meet the user’s needs, are appropriate for any particular use, or are of any certain quality. Likewise, Rayobyte does not guarantee that any product, service, or company descriptions, reviews, portrayals, specifications, or the like are accurate. Under no circumstances will Rayobyte be responsible for any loss or damage resulting from any person’s reliance on any such product, service, or company descriptions, reviews, or specifications contained on the Services.
You represent and warrant that your use of the Services complies with the Acceptable Use Policy, and that you will use the Services in accordance with that Policy.
YOUR USE OF THE SERVICES, AND ANY DATA OR OTHER PRODUCTS OBTAINED THROUGH THE SERVICES, IS AT YOUR OWN RISK. THE SERVICES AND ALL DATA AND PRODUCTS PROVIDED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY RAYOBYTE EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES OR DATA OR PRODUCTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. RAYOBYTE DOES NOT WARRANT THAT THESE SERVICES OR ANY DATA OR PRODUCTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED, AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR DATA, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION, DATA, OR PRODUCTS PROVIDED THROUGH THE SERVICES. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
11. LIMITATIONS OF LIABILITY; LIMITATIONS PERIOD; DAMAGES
RAYOBYTE WILL NOT BE LIABLE TO YOU ANY THIRD-PARTY FOR ANY (A) INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, (B) LOSS OF PROFITS, (C) LOSS OF DATA OR INFORMATION, (D) BODILY DAMAGE OR EMOTIONAL DISTRESS, (E) PROPERTY DAMAGE, OR (F) REPUTATIONAL HARM, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF RAYOBYTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, RAYOBYTE’S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (1) THE AGGREGATE FEES PAID BY YOU FOR THE RAYOBYTE PRODUCTS OR SERVICES DURING THE PREVIOUS SIX (6) MONTHS, OR (2) ONE HUNDRED AND 00/100 DOLLARS ($100.00). YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE WEBSITE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICES.
Limitations Period. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or such claims shall be permanently waived by you and shall be forever barred.
Damages. Upon demand, at our election, you will pay us for breaching, or inducing others to breach, any provision of the Acceptable Use Policy or these Terms: $1.00 for any email sent to us from any ISP company as a result of the breach or induced breach, $100.00 for every cease and desist letter sent to us as a result of the breach or induced breach. You agree that the damages provided for in this section are not a penalty and that actual damages resulting from the breach of the Terms or Acceptable use Policy are difficult to calculate. The assessment of these liquidated damages does not reduce or eliminate your obligation to indemnify us as set forth in these Terms.
15. PRIVACY
The Services are governed by the Rayobyte Privacy Policy which is incorporated into these Terms by this reference. Please read the Privacy Policy before accessing the Services or providing any personal information through the Services.
By providing any personal or non-personal information to Rayobyte through the Services, or by using the Services, subject to applicable law, you automatically grant, and warrant and represent that you have the right to grant, Rayobyte a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to collect, store, use, reproduce, disclose, transfer, and disseminate your collected personal and non-personal information in order to provide the services contemplated under these Terms, to manage your account, to send you communications, or for any other lawful purpose in Rayobyte’s sole discretion.
You also understand and agree that the Service may include certain communications from Rayobyte, such as service announcements, administrative messages, and that these communications are considered part of Rayobyte membership and you will not be able to opt out of receiving them.
18. MANDATORY ARBITRATION AND PROHIBITION ON CLASS ACTIONS
The parties hereto agree and understand that any dispute or claim related to your use of the Services, any disputes regarding any alleged breach of these Terms, to the extent such dispute cannot otherwise be resolved, as well as any other action to enforce these Terms or for the breach of these Terms, shall be referred to final and binding arbitration, and not in court. The Federal Arbitration Act and federal arbitration law apply to this agreement.
Any arbitration proceeding will take place in the State of Nebraska, USA, subject to the laws of the State of Nebraska, USA and will otherwise be governed by the then-current commercial arbitration rules of the American Arbitration Association, and the parties hereto expressly waive their rights, if any, to have any such matters heard by a court or jury, or administrative agency whether federal or state. The parties in any arbitration to enforce this agreement or remedy its breach will equally share the costs associated with such arbitration proceedings; provided, that, each party shall pay its own attorney’s fees. Within fourteen (14) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association.
Both parties agree that any dispute resolution proceedings (including any arbitrations and any court proceedings) will be conducted only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration, each party hereby waives any right to a jury trial. Both parties also agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
