TERMS OF USE

Last updated: August 16, 2018

These Terms of Use (“Terms”, “Terms of Use”) are a legal agreement between you and Great Bay Software, Inc., and its corporate affiliates, subsidiaries, and divisions as may change from time to time (collectively, “Great Bay Software,” “us”, “we”, or “our”). These Terms govern your access to and use of our websites and any other online services offered by or through Great Bay Software (collectively, the “Site”). Where we have entered into an agreement with a client regarding our security services, the terms of that agreement control over any conflicting terms herein.

Your access to and use of the Site is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Site you, your heirs, assigns, and successors (collectively, “you”) are indicating that you have read, understand, and agree to be bound by these Terms. If you do not agree to these Terms, then you must stop accessing or using the Site.

PRIVACY POLICY

Please review our Privacy Policy, incorporated herein by reference, for information and notices concerning our collection, use, and disclosure of your information.

ELIGIBILITY AND SCOPE

Access to and use of the Site is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Site, you represent and warrant that you are eligible.

ACCOUNT REGISTRATION AND USE

You may be required to register for a password-protected account (“Account”) to use parts of the Site. You must provide accurate, current, and complete information during the registration and at all other times when you use the Site, and to update information to keep it accurate, current, and complete.

You are solely responsible for safeguarding your Account password. We encourage you to use a strong Account password (that is a minimum of eight characters, including special characters). You are solely responsible for all activity that occurs on your Account, and we may assume that any communications we receive under your Account have been made by you. You must notify us immediately of any breach of security or unauthorized use of your Account. We will not be liable and you may be liable for losses, damages, liability, expenses, and lawyers’ fees incurred by us or a third party arising from someone else using your Account due to your conduct regardless of whether you have notified us of such unauthorized use. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account.

PROHIBITIONS

You may not:

  • Use another person’s Account or misrepresent yourself or your identity;
  • Use any automated system including but not limited to robots, spiders, offline readers, scrapers to access the Site for any purpose without Great Bay Software’s prior written approval; provided, however, that the operators of public search engines may use spiders or robots to copy materials from the Site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such material (Great Bay Software reserves the right to revoke these exceptions either generally or in specific cases);
  • In any manual or automated manner copy copyrighted text, or otherwise misuse or misappropriate information or content from the Site including but not limited to, use on a mirrored, competitive, or third-party site;
  • Take any action that (a) may unreasonably encumber the Site’s infrastructure; (b) interferes or attempts to interfere with the proper working of the Site; (c) bypasses measures that are used to prevent or restrict access to the Site; (d) circumvents, disables or otherwise interferes with security features of the Site; (e) distributes viruses or any other technologies that may harm Great Bay Software or users; or (f) uses the Site in a way that violates any copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights;
  • Collect, harvest or publish any personally identifiable data including but not limited to names or other account information, from the Site;
  • Take any inappropriate or unlawful actions, including submitting any content that is harassing, hateful, illegal, profane, obscene, defamatory, threatening, or discriminatory, or that advocates, promotes, or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law; or
  • Attempt to indirectly undertake any of the foregoing.

USER CONTENT

Areas of the Site allow you to submit, post, upload, publish, submit, transfer, link, display, or otherwise make available (hereinafter, “post”) information, text, graphics, photograph, audio, video, postings, designs, inventions, or other materials (“User Content”) that may or may not be viewable by other users of the Site. User Content must comply with these Terms. You retain ownership of all intellectual property rights you have in the User Content you post on the Site.

By posting User Content on or through the Site, you grant Great Bay Software a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, distribute, and otherwise exploit such User Content in any format or medium now known or developed in the future, in order to provide the Site subject to applicable law and our Privacy Policy. In the interest of clarity, the license granted to Great Bay Software shall survive termination of the Site or your Account. Notwithstanding the license granted to Great Bay Software in User Content and for avoidance of doubt, our use and retention of your personal data, including any that is contained in User Content, shall also be governed by and comply with our Privacy Policy. You represent, warrant and agree that you have the necessary rights to grant us the license described in this Section for any User Content that you post.

You agree that this license includes the right for other users with permitted access to your User Content to use your User Content in conjunction with participation in the Site and as permitted through the functionality of the Site.

Some User Content may be viewable by other users of the Site (e.g. if you comment on one of our blog posts). You should only provide User Content that you are comfortable sharing with others under these Terms. Great Bay Software takes no responsibility and assumes no liability for any User Content that you or any other user or third-party posts. You shall be solely responsible for your own User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.

Great Bay Software reserves the right in its sole discretion to remove or disable access to any User Content from the Site, suspend or terminate your Account at any time (subject to any other contractual limitations), or pursue any other remedy or relief available under equity or law if you post any User Content that violates these Terms or we consider to be objectionable for any reason. You agree that Great Bay Software may proofread, summarize, or otherwise edit and/or withdraw your User Content (but does not assume the obligation), and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited content is accurate and consistent with your representations and warranties in these Terms.

Great Bay Software reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Great Bay Software, its users and the public.

You understand that Great Bay Software does not control, and is not responsible for, User Content, and that by using the Site, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical or other inadvertent errors or inaccuracies.

COPYRIGHT

Copyright Complaints: Great Bay Software respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below. Great Bay Software will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to our Copyright Agent at legal@greatbaysoftware.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at: Great Bay Software, Inc., 7900 International Drive, #625, Bloomington, MN 55425. To be effective, the notification must be in writing and contain the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  • a description of the copyrighted work or other intellectual property that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Site;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
  • a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

If you submit a notice of infringement that knowingly materially misrepresents that any User Content, information, or communication on the Site is infringing upon a copyright, you may be held liable for damages and attorneys’ fees.

Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:

  • your physical or electronic signature;
  • identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
  • a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
  • your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the District of Minnesota and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Great Bay Software will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Great Bay Software has adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users who are deemed to be repeat infringers. Great Bay Software may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

LIMITED LICENSE

Subject to your compliance with these Terms, Great Bay Software grants you a limited, non-exclusive, non-assignable, non-sub-licensable, revocable, license to use the Site as it is provided to you by Great Bay Software solely for your own use and only in connection with your access to and participation in the Site and only in a manner that complies with all legal requirements that apply to you or your use of the Site, including those relating to data security and data privacy, such as those specified in the Great Bay Software Privacy Policy. Great Bay Software may revoke this license at any time, in its sole discretion. Upon such revocation, you must promptly destroy all materials downloaded or otherwise obtained from the Site, as well as all copies of such materials, whether made in accordance with these Terms or otherwise.

You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, or otherwise exploit the Site or content from the Site, except as expressly permitted in these Terms. The Site and content therein are provided to you AS IS. If you download or print a copy of the Site or content therein for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Great Bay Software or its licensors, except for the licenses and rights expressly granted in these Terms. All aspects of the Site are subject to change or elimination at Great Bay’s sole discretion.

PROPRIETARY RIGHTS

All right, title, and interest in and to the Site (excluding your User Content), are and will remain the exclusive property of Great Bay Software and its licensors. All materials therein, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and all intellectual property rights related thereto, are the exclusive property of Great Bay Software and its licensors (including other users who post User Content to the Site). The Site is protected by copyright, trademark, and other laws of both the United States and foreign countries. You acknowledge that the Site has been developed, compiled, prepared, revised, selected, and arranged by Great Bay Software and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Great Bay Software and such others. Except as explicitly provided herein, nothing in these Terms gives you a right to use the Great Bay Software name or any of the Great Bay Software trademarks, logos, domain names and other distinctive brand features. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners.

Any feedback, comments, questions, or suggestions (collectively, “Feedback”) you may provide regarding the Site or any of our services is entirely voluntary and we will be free to use such feedback, comments or suggestions without any obligation to you. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback; (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development; (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, and sublicense the Feedback; and (iv) irrevocably waive, and cause to be waived, against Great Bay Software and its users any claims and assertions of any moral rights contained in such Feedback. These provisions regarding Feedback shall survive any termination of your Account or the Site.

LINKS TO OTHER SITES OR SERVICES

Our Site may contain links to third-party web sites or services that are not owned or controlled by Great Bay Software.

Great Bay Software has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that Great Bay Software shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.

WARRANTIES AND DISCLAIMERS

Your access to and use of the Site or any User Content is at your own risk. You understand and agree that the Site is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, GREAT BAY SOFTWARE AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security, or reliability of the Site or any content thereon. Great Bay Software will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Site, or any User Content. You also agree that Great Bay Software has no responsibility or liability for its deletion of, or the failure to store, retain, or transmit, any User Content and other communications maintained by the Site. We make no warranty that the Site will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from Great Bay Software or through the Site, will create any warranty not expressly made herein.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE. GREAT BAY SOFTWARE EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.

LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GREAT BAY SOFTWARE AND ITS AFFILIATES AND SUBSDIARIES, AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SITE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SITE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SITE; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT GREAT BAY SOFTWARE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

INDEMNIFICATION

TO THE FULL EXTENT PERMITTED BY LAW, YOU AGREE TO RELEASE, DEFEND, INDEMNIFY, AND HOLD GREAT BAY SOFTWARE AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, AND EXPENSES, INCLUDING WITHOUT LIMITATION REASONABLE LEGAL AND ACCOUNTING FEES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (A) YOUR ACCESS TO OR USE OF THE SITE OR YOUR VIOLATION OF THESE TERMS; (B) YOUR USER CONTENT; AND (C) YOUR INTERACTION WITH ANY USER.

If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others. If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.

TERMINATION

We may terminate or suspend access to our Site immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

GOVERNING LAW

These Terms shall be governed and construed in accordance with the laws of Minnesota, United States, without regard to its conflict of law provisions. Any claim or dispute arising in connection with the Site shall be decided exclusively by a court of competent jurisdiction located in Hennepin County, Minnesota, and you consent to the personal jurisdiction of and venue in such courts and waive any and all jurisdictional and venue defenses or objections otherwise available.

GENERAL

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. Except as explicitly provided herein, these Terms constitute the entire agreement between us regarding our Site, and supersede and replace any prior agreements we might have between us regarding the Site.

FORCE MAJEURE

Neither Great Bay Software nor you shall be liable to the other for any delay or failure in performance under the Terms arising out of a cause beyond its control and without its fault or negligence. Such causes may include but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, or national disasters.

THIRD-PARTY BENEFICIARIES

You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.

ASSIGNMENT

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Great Bay Software without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns.

MODIFICATIONS TO THESE TERMS

We reserve the right, at our sole discretion, to modify or replace these Terms at any time.

By continuing to access or use our Site after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Site.

CONTACT US

If you have any questions about these Terms, please contact us at legal@greatbaysoftware.com.