Beam™ Subscription Agreement
Subject to the terms and conditions of this agreement (this “Agreement”), we at Beam Dynamics, Inc., a Delaware Corporation (“we”) provide subscriptions to:
(1) our Beam™ web-based product intelligence platform, which includes the modules, functionality and features described in your Order (“Beam”);
(2) a website (the “Site,” and, together with Beam, the “Software”) through which you may access and use Beam; and
(3) the Services described in further detail below.
Supplemental Terms and Conditions Applicable to “Free Trial” Access and Use. Notwithstanding anything to the contrary in this Agreement, including but not limited to in Sections 4 (Support Services and Uptime), 8 (Term and Termination), 9 (Representations and Warranties), 11 (Limitation of Liability) or 12(j) (Conflict in Terms) thereof, if your Order indicates that you will be obtaining a subscription to the Software on a “free trial” or similar basis (a “Free Trial Order”), then you acknowledge and agree that the Software is being provided to you under the Free Trial Order on a temporary, limited, “free trial” basis for your internal evaluation purposes only and only during the applicable trial period set forth in the Free Trial Order, and therefore UNDER ANY FREE TRIAL ORDER ALL SERVICES AND BEAM MATERIALS (INCLUDING BUT NOT LIMITED TO THE SOFTWARE) ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY SUPPORT SERVICES, ANY AVAILABILITY REQUIREMENT OR ANY WARRANTY OR INDEMNITY OF ANY KIND FROM US, EXPRESS OR IMPLIED, AND THE AGGREGATE LIABILITY OF BEAM DYNAMICS, INC. UNDER OR IN CONNECTION WITH ANY FREE TRIAL ORDERS SHALL NOT EXCEED $500 UNDER ANY CIRCUMSTANCES. Either party may cancel a Free Trial Order and the trial of the Software at any time immediately upon written notice to the other party, for any reason or for no reason, and upon such termination your right to access and use the Software will terminate and you must immediately cease accessing and using the Software.
1. Acceptance.
By executing an Order with us or with our authorized reseller, OEM or other channel partner with which you have contracted directly for access to the Software and Services (a “Reseller”), you also accept the terms of this Agreement and agree you are legally bound by its terms. The individual registering to use Beam on your behalf represents and warrants to us that such individual is fully and duly authorized to agree to be bound by this Agreement on your behalf. If you do not agree to this Agreement, do not register to use Beam or otherwise access or use any Software. You understand and agree that it is your responsibility to download and/or print a copy of this Agreement for your records and for reference as to the terms and conditions governing access to and use of the Software and Services.
2. Our Services.
a) Services. During the Term, we will provide to you and your Authorized Users the following services (the “Services”): (i) the hosting, management and operation of Beam for remote electronic access and use by you and your Authorized Users through the Site in accordance with the authorizations granted below; (ii) the Support Services described in Section 4.a below; and (iii) any other Services we expressly agree to provide in your Order.
b) Changes to the Software. We may make any changes to the Software (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Software) that we deem necessary or useful to improve the Software or for any other reason, from time to time in our sole discretion, and without notice to you. Such changes may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related Documentation changes, “Updates”). All Updates shall be deemed a part of the Software governed by all the provisions of this Agreement pertaining thereto.
c) Subcontractors. You understand and agree that we may, in our discretion, engage subcontractors to aid us in providing the Software and performing our Services under this Agreement. For example, we use Amazon Web Services (the “Hosting Services Provider”) for cloud-based infrastructure and hosting and storage services for Beam, and such Hosting Services Provider will host and store certain portions of Your Data that is processed through Beam. For more information, please visit https://aws.amazon.com/agreement/. You hereby specifically approve and consent to our use of this Hosting Services Provider in the manner described. Notwithstanding anything to the contrary in this Agreement, you agree that we cannot guarantee or ensure the performance of any Hosting Services Provider to the terms of this Agreement and therefore remediation of a breach by a Hosting Services Provider is limited to the remedies specified the Hosting Services Provider’s standard service agreement.
d) Suspension of Services and Software Access. We may suspend our performance of the Services and/or suspend or deny your or any Authorized User’s access to or use of all or any part of the Beam Materials, without any liability to you or others, if (i) we’re required to do so by law or court order; or (ii) you have or any of your Authorized Users has (A) accessed or used our Services or the Beam Materials in violation of this Agreement (including, for the avoidance of doubt, failure to comply with the limitations and restrictions described in Section 3.c below), (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Services or the Software, or (C) otherwise failed to comply with this Agreement and have failed to cure such breach within 10 days after we provide written notice to you. Unless we have exercised our right to terminate this Agreement pursuant to Section 8, we will promptly restore access to the Beam Materials and resume our performance of Services as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 8 or any other rights or remedies under this Agreement, at law or in equity.
3. Right to Access and Restrictions.
a) Beam Authorization. So long as you and your Authorized Users comply with this Agreement, we authorize you, during the Term, and on a non-exclusive and non-transferable (except as described in Section 12.e) basis, to access and use Beam through the Site, including any Product Data we make available to you through Beam, in each case provided that such access and use is (i) by and through your Authorized Users only, (ii) solely as (and in the form) in which we have provided Beam and the Product Data, (iii) solely for the Permitted Use, and (iv) strictly in accordance with this Agreement and the Documentation.
b) License to Documentation. So long as you and your Authorized Users comply with this Agreement, we grant you, during the Term, a non-exclusive and non-transferable (except as described in Section 12.e) license to access and use the Documentation, solely in support of your permitted uses of Beam and the Site
.
c) Limitations and Restrictions. You must use commercially reasonable efforts to prevent unauthorized access to or use of the Software, the Documentation and the Product Data we make available to you through Beam (collectively, the “Beam Materials”). You must not, and you must not permit any other person or entity to, access or use the Beam Materials except as we’ve specifically allowed in this Agreement and, in the case of any Third-Party Materials (as defined below) we provide with or as part of the Beam Materials, as allowed in the applicable third-party license agreement. Without limiting the generality of the preceding sentence, you and your Authorized Users must not do any of the following:
i. copy the Beam Materials or any portion thereof;
ii. modify, adapt, translate or create derivative works or improvements of the Beam Materials or any portion thereof;
iii. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Beam Materials or any features or functionality of the Beam Materials to any other person or entity for any reason, including by making the Beam Materials available through any time-sharing, service bureau or software as a service arrangement;
iv. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the Software or the underlying structure, ideas, know-how, algorithms or methodology relevant to the Software;
v. input, upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
vi. bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by the Beam Materials;
vii. remove any proprietary notices from the Beam Materials;
viii. share an Authorized User’s access credentials with any person or permit use of an Authorized User’s access credentials by any person, other than the Authorized User with whom the access credentials are associated;
ix. attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the Beam Materials, (B) the server on which the Beam Materials are stored, (C) any server, computer or database connected to the Software, or (D) our ability to provide services to any other person or entity;
x. access or use the Beam Materials in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
xi. access or use the Beam Materials for purposes of (A) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Beam Materials, or (B) disclosing to our competitors, for any purpose, otherwise non-public information about the Beam Materials; or
xii. knowingly aid or assist any Authorized User or other person or entity in taking any of the actions prohibited by this Section 3.c.
d) Responsibility for Authorized Users. You must ensure your Authorized Users’ compliance with the terms and conditions of this Agreement and you will be responsible and liable to us for any acts or omissions of your Authorized Users (or of any other employee, contractor, consultant, agent, subcontractor, vendor or other service provider acting under your control or accessing and using the Software through your accounts) that would be a breach or violation of this Agreement if such act or omission had been performed by you directly.
4. Support Services and Uptime.
a) Support Services. During the Term, so long as you and your Authorized Users comply with this Agreement, we will provide customer support services to you and your Authorized Users via e-mail during our normal support hours (8:00 a.m. to 6:00 p.m., Eastern time, Monday through Friday, but excluding federal holidays) (“Support Services”). Support Services include (i) technical and operational assistance for the use of the Software, including responses to general, short-duration questions about the documented features and functionality of the Software and usage thereof, management of user accounts for Authorized Users, assistance with interpretation and use of the Documentation, and assistance with interpretation of error or warning messages appearing in dashboards or alerts, (ii) attempts to respond and resolve any Availability failure in accordance with Section 4.b below and otherwise correct any reproducible failure of the Software to perform in accordance with the Documentation, and (iii) case management to help track the status of any failures reported to us. Support Services do not include (1) support for software or hardware that is not part of the Software (including support for any part of your equipment, products or technology infrastructure), (2) formal, comprehensive training of Authorized Users on use of the Software (which may be separately provided Services to the extent expressly indicated in an Order), (3) on-site dispatch of our personnel, (4) on-site or remote support to configure or customize the Software for you (which may be separately provided Services to the extent expressly indicated in an Order), or (5) performance of any other professional, implementation, configuration, consulting or advisory services (which may be separately provided Services to the extent expressly indicated in an Order). You must provide all information and assistance that we reasonably request in connection with providing such Support Services. We reserve the right to charge you at an hourly rate (on a time-and-materials basis) for support services provided (x) outside of our normal support hours, or (y) in connection with a request we reasonably determine is outside the scope of the Support Services described above.
b) Beam Availability. During the Term, so long as you and your Authorized Users comply with this Agreement, we will make Beam Available for access and use by you and your Authorized Users over the Internet 24 hours a day, seven days a week, with ninety-nine percent (99%) Availability (calculated on a minutes per month basis), excluding un-Availability as a result of any of the Exceptions described below (the “Availability Requirement”). For purposes of this Agreement, Beam is “Available” if you are able to log in to Beam and access Your Data and, correspondingly, Beam is “un-Available” if you are unable to log in to Beam and access Your Data. For purposes of calculating the Availability Requirement, the following are “Exceptions,” and Beam will not be considered un-Available in connection with any failure to meet the Availability Requirement or impaired ability of you or your Authorized Users to access or use Beam that is due, in whole or in part, to any: (i) access to or use of the Software by you or your Authorized User that does not comply with this Agreement and the Documentation; (ii) your or your Authorized User’s Internet connectivity; (iii) any Force Majeure Event; (iv) any failure, interruption, outage or other problem with any software, hardware, system, network, or other technology infrastructure that was not provided by us or that is not part of our systems (including, for the avoidance of doubt, any failure, interruption, outage or other problem with the Hosting Services Provider); or (v) scheduled downtime for routine maintenance of the Software that occurs outside of our normal support hours or on weekends. If we fail to meet the Availability Requirement described above, we will credit your account in an amount equal to (x) three percent (3%) of the annual subscription fee paid to us for each month in which Beam was Available less than 99% of the time but more than 90% of the time, or (y) six percent (6%) of the annual subscription fee paid to us for each month in which Beam was Available less than 90% of the time, provided that you have submitted to us a written request for credit (including by citing this Section specifically) within ninety (90) days of the end of the calendar month in which the Availability failure occurred. THE FOREGOING REMEDIES ARE YOUR EXCLUSIVE REMEDIES, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU, FOR ANY FAILURE TO MEET THE ABOVE-DESCRIBED AVAILABILITY REQUIREMENT OR OTHER INTERRUPTION OR UNAVAILABILITY OF THE SOFTWARE DURING THE TERM.
5. Confidentiality.
a) General. During the Term and thereafter, each receiving party (each, a “Recipient”) will hold in strict confidence any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”) and will not without the Discloser’s written consent disclose Discloser’s Confidential Information to any third party (other than our subcontractors as permitted in Section 2.c above) nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. The Beam Materials, all non-public information related thereto and the features, functionality and performance thereof are all our Confidential Information, Your Data (other than Your Product Data) is your Confidential Information, and the terms of this Agreement and any Order are the Confidential Information of both of us.
b) Exceptions. These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act or omission by the Recipient or its employees or agents, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser. Additionally, Recipient may disclose Discloser’s Confidential Information to the extent it is legally compelled to do so pursuant to applicable law or the valid order of a court or governmental agency, provided that Recipient must first give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.
6. Fees and Payment.
a) Fees. You will pay to us (or, where applicable, to our Reseller) the fees and charges described in each Order (the “Fees”) in accordance with the Order and this Section 6. In addition, unless otherwise specified in your Order, in each Renewal Term we reserve in our discretion (or, where applicable, our Reseller reserves in its discretion) the right to increase the Fees for the Renewal Term by up to seven percent (7%) above the Fees prevailing in the immediately prior Initial Term or Renewal Term or (if greater) a percentage equal to the average increase in the Consumer Price Index-All Urban Workers (CPI-U) (U.S. City Average, All Items) over the immediately prior Initial Term or Renewal Term (in addition to any increases in pricing corresponding to any changes in usage or other pricing parameters). All purchases are final, all payment obligations are non-cancelable and (except as otherwise expressly provided in this Agreement or in the applicable Order) all Fees once paid are non-refundable.
b) Taxes. The Fees do not include taxes and similar assessments. We (or, where applicable, our Reseller) will pass along to you the cost of any sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If any such amounts are owed to a governmental authority, we (or, where applicable, our Reseller) will calculate the amount of the obligation and include this on your bill or invoice, and we (or, where applicable, our Reseller) will remit those amounts to the applicable authority. If you are exempt from such taxes, you must provide us (or, where applicable, our Reseller) with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.
c) Payment. You will make all payments in US dollars. You will, upon request, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of an Automatic Payment Method, you agree that we (or, where applicable, our Reseller) may charge the Fees using that Automatic Payment Method in accordance with the payment schedule set forth in the Order. If instead we invoice you (or, where applicable, our Reseller invoices you) for the applicable Fees, invoiced amounts are due net 30 days from the invoice date, unless otherwise stated in your Order. You are responsible for providing complete and accurate billing and contact information and notifying us (or, where applicable, our Reseller) of any changes to that information.
7. Ownership and Intellectual Property Rights.
a) Beam Materials. You acknowledge and agree that we (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to in and to the Beam Materials (for the avoidance of doubt excluding any of Your Data), including all associated features, functionality, software, content, materials and services made available thereon by us, including all new versions, updates, revisions, derivative works, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing and all related intellectual property rights (collectively, the “Beam IP”). We are not granting you any right, license or authorization with respect to any of the Beam IP except as we’ve specifically provided in Section 3 above (and subject to the limitations and restrictions in Section 3.c above). We and the respective rights holders in any Third-Party Materials reserve all other rights in and to the Beam IP.
b) Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in Section 7.c.
c) Rights to Use Your Data.
i. In General. You hereby grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary to: (i) perform the Services and provide the Software during the Term; and (ii) enforce this Agreement and exercise our rights and perform our obligations under this Agreement.
ii. Use of Third Party Vendor Features. When you choose to generate and submit a service ticket for a particular product or piece of equipment using the feature of the Software designed for this purpose (the “Service Ticket Feature”), or when you choose to register a particular product or piece of equipment with the original manufacturer, reseller or other vendor thereof using the feature of the Software designed for this purpose (the “Product Registration Feature” and, together with the Service Ticket Feature, collectively the “Third Party Vendor Features”), we will share (and you, by choosing to use the applicable Third Party Vendor Feature, direct us to share) certain information with the selected third party manufacturer, reseller or other vendor (the “Third Party Vendor”) which may include your name, the names and contact information of one or more Authorized Users you have designated, and certain unit-specific information about the product or equipment that is the subject of your service ticket. We provide these Third Party Vendor Features to you solely as a matter of convenience for you. Please be advised that we are not in any way affiliated with (whether by common ownership, contract, subcontract or otherwise) any Third Party Vendors, and we do not and cannot control (and therefore you acknowledge and agree that we are not responsible or liable for) the actions or omissions of any Third Party Vendors. You acknowledge and agree that we do not, by facilitating any connections between you and any Third Party Vendors or otherwise, endorse any Third Party Vendors or give any representations, warranties, guarantees or indemnities of any kind (express or implied) as to the quality, availability, safety, legality, timeliness or appropriateness of any products or services that may be offered to you by such Third Party Vendors. Your connections and interactions with Third Party Vendors using the Third Party Vendor Features are entirely at your own risk. As between you and us, we commit to you that we will collect and process Your Data in accordance with this Agreement. However, as between you and the Third Party Vendor, with respect to information about you that the Third Party Vendor obtains through your use of the Service Ticket Feature or Product Registration Feature or otherwise, each Third Party Vendor independently will have the right to determine the purposes for which it will process such information and the means the Third Party Vendor will use to process such information. When you choose to transmit Your Data to a Third Party Vendor through the use of a Third Party Vendor Feature, the Third Party Vendor becomes the “owner” of the information (at least as between us and them) and you form a separate relationship with the Third Party Vendor that is independent from us and this Agreement. We do not and cannot control (and therefore you acknowledge and agree we are not responsible or liable for) the applicable Third Party Vendor’s policies and practices relating to the collection, use, maintenance, protection or disclosure of your information, including any of Your Data that the Third Party Vendor obtains through your use of the Third Party Vendor Feature. We only control (and therefore you acknowledge and agree that we are only responsible and liable for) our own actions, as described in this Agreement. We encourage you to review the responsible Third Party Vendor’s terms and conditions of service (or other legal agreement) and privacy policy or consult with a representative of the Third Party Vendor for more information about the applicable terms and conditions of service (or other legal agreement) as between you and the Third Party Vendor and/or how the Third Party Vendor may collect, use, maintain, protect and disclose your information.
ii. Uses of Your Product Data in Anonymized Form. In addition, you hereby grant to us and our subcontractors, during the Term and thereafter, a non-exclusive, royalty-free, fully-paid, worldwide, perpetual and irrevocable license (with right to sublicense) to use, copy, modify, distribute, publicly display, publicly perform and make derivative works of Your Product Data (x) in anonymized form only, in connection with providing the Software to you and other users of the Software, including to improve our analytics and algorithms and to make this data available to other users of the Software (thereby becoming Crowdsourced Product Data vis-à-vis other users of the Software), and (y) in aggregated and anonymized form only, for our general business and commercial purposes (including but not limited to distributing aggregated statistical information about products or equipment to vendors and manufacturers for product improvement and commercial and marketing analytics purposes). For clarity, for the purposes of this paragraph data in “anonymized” form means data that does not include any personally-identifiable information or any other information that could (by itself or with other data, directly or indirectly) identify you, your Authorized Users, your customers or clients or any other individual or entity (other than the manufacturer of the product or equipment) and data in “aggregated” form means data that has been combined with the data of several other users of the Software that are unrelated to you such that the resulting data is no longer specifically associated solely with you, your Authorized Users, your customers or clients or any other individual or entity (other than the manufacturer of the product or equipment) in particular.
d) Usage Data. You acknowledge and agree that we may collect metadata, telemetry and other statistical information regarding your Authorized Users’ use of and the performance of the Software and Services (“Usage Data”), such as data on what features and functions in the Software are being used by its users and to what extent. Usage Data does not contain and is not derived from Your Data. You agree that we may use Usage Data in connection with providing Support Services to you and for our internal business purposes (such as monitoring, enhancing and improving the Software), and that we may publish and share with third parties aggregated Usage Data that cannot, by itself or with other data, directly or indirectly, identify you, your Authorized Users, your customers or clients or any other individual or entity.
e) Publicity Rights. During the Term, you agree that we may, without separate written consent from you, include your name, trademarks and logos on our website and in other sales and marketing materials in order to factually identify you as a current customer.
f) Copyright Policy. If you believe that any Product Data, Third-Party Materials or any other content, data or materials made available on or through Beam violate your copyright, please see our Copyright Policy available online at https://www.beamdynamics.io/copyright-policy for instructions on sending us a notice of copyright infringement. It is our policy to terminate the user accounts of repeat infringers.
8. Term and Termination.
a) Term. The initial term of your Order and this Agreement (the “Initial Term”) commences on the first date you accept this Agreement in accordance with Section 1 above and continues for the initial subscription period specified in your Order (or for an initial period of one year if no initial subscription period is specified in your Order). After the Initial Term, unless otherwise specified in your Order, the Order and this Agreement will automatically renew for successive one-year periods (each, a “Renewal Term”) unless one party delivers written notice to the other party indicating it has elected not to renew this Agreement at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term (as applicable). The Initial Term and each applicable Renewal Term are referred to in this Agreement as the “Term.”
b) Termination. In addition to any other termination rights described in this Agreement, this Agreement may be terminated at any time by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement or the applicable Order and such breach (i) is incapable of cure, (ii) remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach, or (iii) is the second (or higher ordinal) breach of the limitations and restrictions in Section 3.c of this Agreement.
c) Effect of Termination. The exercise of any right of termination under this Agreement will not affect any rights of either party (including rights to payment or reimbursement) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled. If this Agreement is terminated or expires, then: (i) all rights, licenses and authorizations granted by one party to the other (other than rights to Your Product Data that survive termination of this Agreement in accordance with Section 7.c) will immediately terminate, (ii) we may disable your and your Authorized Users’ access to the Beam Materials, and (iii) we each will cease all use of the other party’s Confidential Information and (at such other party’s request) promptly destroy or return all of the other party’s Confidential Information. For the avoidance of doubt, termination of this Agreement will cause the termination of all outstanding Orders.
d) Surviving Terms. Sections 5 (Confidentiality), 7 (Intellectual Property Rights), 8.c (Effect of Termination), 10 (Indemnification), 11 (Limitations of Liability), 12 (Miscellaneous), 13 (Definitions) and this Section 8.d will survive any expiration or termination of this Agreement.
9. Representations and Warranties.
a) By You Regarding Your Data. You represent and warrant that: (i) your and your Authorized Users’ collection and use of all of Your Data (including your choice to upload and process Your Data to and through the Software as contemplated in this Agreement) is consistent with your own privacy policy, your license agreements and other agreements with third parties, and all applicable local, state, federal, foreign or international laws, treaties, regulations or conventions; (ii) you either own, or have all rights, permissions and consents that are necessary to store, use and process, and to permit us, our subcontractors and the Software to store, use and otherwise process as contemplated in this Agreement, all of Your Data (including, but not limited to, for the purpose of making Your Product Data available to other users of the Software as Crowdsourced Product Data vis-à-vis that other user); (iii) our and our subcontractors’ access to and storage, use and other processing of Your Data (including, for the avoidance of doubt, all personal data included with Your Data and all of Your Product Data) as contemplated by this Agreement does not and will not violate any applicable law or regulation or infringe, misappropriate or otherwise violate any intellectual property right, privacy right or other right of any third party. Without limiting the generality of the foregoing, when you upload Your Product Data to Beam your represent and warrant that you either own or validly lease or rent (from the owner or from a third party entitled to grant you these rights) the product or equipment to which Your Product Data pertains.
b) By Us Regarding our Services. We warrant that we will perform all Services in a professional and workmanlike manner, using adequate resources and appropriately qualified personnel, and consistent with generally-accepted standards of quality in our industry. If we breach this warranty, we will promptly re-perform the non-conforming Services at no additional cost to you. THE FOREGOING IS YOUR EXCLUSIVE REMEDY, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU, FOR ANY BREACH OF THE WARRANTY PROVIDED IN THIS SECTION 9.b.
c) By Us Regarding Our Software. We warrant that: (i) the Software will at all times during the Term conform in all material respects to the specifications set forth in your Order and its Documentation, and (ii) we have used and will continue to use reasonable efforts consistent with generally-accepted industry practices to ensure that the Software does not contain (and will not introduce) any Harmful Code into any of your devices, software, systems or telecommunications equipment.
d) Remedy for Breach of Software Warranty. If we breach the warranty set forth in Section 9.c, we may, at our sole option and expense, take any of the following steps to remedy such breach: (i) modify, fix or correct the Software to remedy such non-conformity; (ii) replace the non-conforming portion of the Software, as applicable, with functionally equivalent software (which software will, on such replacement, constitute Software hereunder); and (iii) if the remedies in clauses (i) and (ii) are not feasible by commercially reasonable standards, terminate the applicable Order and promptly refund to you on a pro rata basis the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination. If we do not cure a warranty breach or terminate this Agreement as permitted by the immediately preceding sentence within 30 days after our receipt of written notice of such breach, you will have the right to terminate the applicable Order and we will promptly refund to you on a pro rata basis the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination. THE REMEDIES SET FORTH IN THIS SECTION 9.d ARE YOUR EXCLUSIVE REMEDIES, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU, FOR ANY BREACH OF THE WARRANTY PROVIDED IN SECTION 9.c.
e) Warranty Limitations. Notwithstanding anything to the contrary in the foregoing or elsewhere in this Agreement, the warranties in Sections 9.b and 9.c do not apply to any non-conformance resulting from: (x) your use of the Software or Services in a manner inconsistent with this Agreement or its Documentation, (y) the operation of or access to your or a third party’s system or network, or (z) Your Data, any Product Data or any Third-Party Materials.
f) Disclaimer Regarding Third-Party Materials and Product Data. Beam may (i) display, include or make available certain Product Data (including Crowdsourced Product Data), (ii) display, include or make available certain third-party content and materials (including data, information, applications, open source components and other products, services, and/or materials), and/or (iii) provide links to third-party websites or services (the content and materials described in clauses (ii) and (iii) of this Section 9.f, collectively, the “Third-Party Materials”). While the Product Data and Third-Party Materials have been obtained from sources that we believe to be reliable, you acknowledge and agree that we do not own and we did not originate or create the Product Data or Third-Party Materials, and therefore you acknowledge and agree that we are not responsible for any Product Data or Third-Party Materials, including their accuracy, completeness, timeliness, validity, non-infringement, legality, decency, quality, or any other aspect thereof. We hereby disclaim any and all representations, warranties, guarantees, covenants, undertakings or commitments in respect of or in any way relating to the Product Data or Third-Party Materials, including any warranties (express, implied or other) regarding merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, timeliness, validity, legality, decency, quality or otherwise. We do not assume and we will not have any liability or responsibility to you or any other person or entity for any Product Data or Third-Party Materials or for your use of the Product Data or Third-Party Materials or any consequences or results arising therefrom. You acknowledge and agree that certain Product Data and Third-Party Materials may only be available via the Software if you have first registered the relevant product or equipment or otherwise registered with the original manufacturer, reseller or other vendor thereof; we will not be responsible or in any way liable to you for the unavailability of Product Data or Third-Party Materials resulting from your failure to properly register with the original manufacturer, reseller or other vendor. Product Data and Third-Party Materials and any links or other access thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to any third parties’ terms and conditions. Our inclusion of links to third-party websites does not amount to or imply any endorsement or warranty of the material on such sites or any association with their owners or operators. You agree that we are not responsible for any such third-party websites and services or any content thereon. Any concerns or questions related to third-party websites should be directed to the webmaster or other appropriate contact person for such third party. We reserve the right to change, suspend, remove, disable or impose access restrictions or limits on any Product Data or Third-Party Materials at any time without notice or liability to you.
g) Disclaimer Regarding Reliance on Statements. You acknowledge and agree that any statements, assessments, predictions, opinions or analyses presented on or through Beam, including (but not limited to) any assessments or predictions of the failure risk or need for maintenance (or lack thereof) with respect to particular products or pieces of equipment (collectively, “Statements”), are provided for your general informational purposes only. While we believe the information in the Statements to be accurate to our knowledge, we make no express guarantee as to the completeness or accuracy of, nor can we accept any responsibility for errors appearing in, the Statements. Other factors may be present or other events may occur which were not taken into account when preparing and delivering the Statements, and therefore any projections or outlooks contained in the Statements should not be construed to be indicative of the actual events which will occur. We do not warrant the accuracy, completeness or usefulness of the Statements, and any reliance you place on any Statements is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on any Statements by you, your Authorized Users or any other user of Beam, or by anyone who may be informed of any of the contents of the foregoing.
h) Disclaimer of Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTIONS 9.b AND 9.c, AND EXCEPT FOR THE AVAILABILITY REQUIREMENT SET FORTH IN SECTION 4.b ABOVE, ALL SERVICES AND THE BEAM MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE BEAM MATERIALS WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE BEAM MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. YOU ASSUME ALL RESPONSIBILITY FOR CONSEQUENCES THAT ARISE FROM USE OF THE BEAM MATERIALS, PRODUCT DATA AND/OR THIRD-PARTY MATERIALS.
10. Indemnification.
a) By Us. We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that the Software or your use thereof (excluding Your Data, Product Data and Third-Party Materials) infringe any U.S. patent, copyright or trademark of such third party, or misappropriate the trade secret of such third party (each, an “Infringement Claim”). Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (i) access to or use of the Software in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us); (ii) modifications or configurations made to the Software by anyone other than us (or a party acting under our direction) without our prior written consent; or (iii) any action taken by you or any Authorized User relating to use of the Software that violates this Agreement.
b) By You. You will defend us and our subcontractors and personnel from and against any Claims brought by a third party, and you will indemnify and hold us and our subcontractors and personnel harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you or your Authorized Users have breached any representation or warranty in Section 9.a.
c) Mitigation. If the Software is, or in our opinion is likely to be, the subject of an Infringement Claim, or if your or any Authorized User’s use of the Software is enjoined or threatened to be enjoined, we may, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the allegedly infringing Software as contemplated by this Agreement, (ii) modify or replace the allegedly infringing Software to make such Software (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate the applicable Order upon written notice and without any liability to you and we will promptly refund to you on a pro rata basis the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination.
d) Sole Remedy. THIS SECTION 10 SETS FORTH YOUR EXCLUSIVE REMEDIES, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY, FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND BEAM MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. Limitation of Liability. IN NO EVENT WILL WE BE LIABLE TO YOU, TO YOUR SUBSIDIARIES OR AFFILIATES OR TO YOUR OR ANY OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, AGENTS, SUCCESSORS OR ASSIGNS FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING YOUR FIRST CLAIM AGAINST US HEREUNDER. UNDER NO CIRCUMSTANCES SHALL WE HAVE ANY LIABILITY WITH RESPECT TO OUR OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12. Miscellaneous. (a) Entire Agreement. This Agreement and each Order constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). (b) Amendment, Severability and Waiver. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. (c) Governing Law and Venue. This Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of North Carolina, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Winston-Salem, North Carolina, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. (d) Notices. All notices under this Agreement will be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in the most recent Order. (e) Assignment. Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party’s consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. (f) Disclaimer of Third Party Beneficiaries. The Reseller with which you executed an Order (if any) shall be an express third party beneficiary of this Agreement in relation to all Fee and payment-related provisions (including, but not limited to, those set forth in Section 6), and shall have a right to enforce such provisions against you directly as if the Reseller was directly a party to this Agreement. Otherwise, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. (g) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. (h) Force Majeure. Neither party will be liable for any delays or non-performance of its obligations arising out of actions or decrees of governmental authorities (including enactment or adoption of law or regulation), criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire, or other similar causes not within such party’s reasonable control (each, a “Force Majeure Event”). In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Either party may terminate this Agreement if a Force Majeure Event affecting the other arty continues substantially uninterrupted for a period of 30 days or more. (i) Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 3.c (Limitations and Restrictions), Section 5 (Confidentiality) or Section 7 (Intellectual Property Rights) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. (j) Conflict in Terms. If there is a conflict between this Agreement and any Order, the terms of the Order shall govern the provision of the Software or the Services involved; provided, however, that nothing in a Order may modify or supersede anything in Sections 3.c (Limitations and Restrictions), 7 (Ownership and Intellectual Property Rights), 9 (Representations and Warranties), 10 (Indemnification), 11 (Limitation of Liability), or 12 (Miscellaneous) of this Agreement unless an express cross-reference is made to the relevant provision of this Agreement in the applicable Order and the parties have expressly agreed in such Order to modify or alter the relevant provision of this Agreement. (k) Counterparts. Each Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of an Order delivered by facsimile, e-mail or other electronic means is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
13. Other Definitions. Capitalized and other terms that are used in this Agreement have the meanings described below:
“Authorized User” means your direct employees who have registered to use Beam by and through your account and to whom we have provided access codes to log-in to Beam through the Site. Unless we have provided our prior and express written consent, “Authorized Users” shall not include any third parties, including but not limited to your third party independent contractors, consultants, agents, subcontractors, vendors or service providers.
“Claim” means any investigation by a governmental body, claim, suit, action or proceeding.
“Crowdsourced Product Data” means equipment- or product-specific data, materials and information that we make available to you via Beam that have been sourced from other, third party Beam users.
“Documentation” means the then-current online, electronic and written user documentation and guides we make available to you and to Authorized Users which describe the functionality, components, features or requirements of the Software, as we may update from time to time in our discretion.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
“Loss” means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.
“Order” means the order form, purchase order or other similar purchasing document executed by us (or our Reseller) and you that references this Agreement, and which is incorporated into this Agreement for all purposes.
“Permitted Use” means your internal business purposes in the ordinary course of such business.
“Product Data” means all equipment- or product-specific data, materials and information that we store on your behalf or make available to you via Beam (including, for the avoidance of doubt, Your Product Data, Crowdsourced Product Data and other equipment- or product-specific data and information that we have sourced using other means).
“You” and “your” as used throughout this Agreement refers to the party (other than us or our Reseller) entering into this Agreement to obtain a subscription to Beam and our Services.
“Your Data” means Your Product Data and Your Other Data, collectively.
“Your Other Data” means, other than Your Product Data, any other information, data, records or other materials that are uploaded directly by or otherwise received directly from you or an Authorized User either (i) by or through the Software for the purposes of being stored or otherwise processed within the Software, or (ii) to facilitate our provision of Support Services or other Services to you. For the avoidance of doubt, Your Other Data does not include any Product Data.
“Your Product Data” means equipment- or product-specific data, materials and information that are uploaded directly by or otherwise received directly from you or an Authorized User by or through the Software for the purposes of being stored or otherwise processed within the Software.