These Terms of Service (“Terms”) are between the entity or entities specified in Section 10.7, individually and not jointly (“BeeBack”), and the customer, on behalf of itself and its applicable Affiliates (“Customer”). The authorized party signing or electronically submitting the Order or accessing the Services represents that it has the authority to bind the Customer and understands and agrees to the Order, these Terms, and the applicable Service Descriptions (collectively the “Agreement”).

1. DEFINITIONS

As used in the Agreement, the following defined terms shall apply:

1.1. Affiliate means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, whether through majority ownership of voting securities or equity interests.

1.2. BeeBack Marksmeans any name, logo, or mark belonging to BeeBack or its affiliates.

1.3. Customer Content means any files, documents and other information belonging to Customer or users as uploaded to Customer’s Service account for storage and/or sharing with third parties, and is not related to BeeBack servicing or accessing Customer’s account.

1.4. Effective Date means the earlier of the date (i) Customer submits the initial Order, or (ii) as stated on the signature block of the Order.

1.5. Order or Services Order means any initial or subsequent ordering document and/or online request for access to the Services submitted to BeeBack, a BeeBack authorized reseller and/or through BeeBack product websites.

1.6. Services means the generally available BeeBack software-as-a-service offerings (“SaaS Services”), as further described in the Service Descriptions. BeeBack may update the Services at any time and all Services set forth in the Service Descriptions may not be available to all Customers. The Services are for professional/business use only.

1.7. Service Descriptions means the overview and other terms applicable to the Services, as amended from time to time, and found at Service Descriptions.

1.8. Updates means any corrections, bug fixes, new features or functions added to the Services, but shall not include any new versions that BeeBack markets and sells separately.

1.10. Use Level means the model by which BeeBack measures, prices and offers the Service to Customer as set forth on the applicable price list, websites, Order, and/or Service Description.

2. RIGHTS

2.1. Right to Use Service. Subject to these Terms, BeeBack will provide the Services set forth in the Order for Customer’s use in accordance with the Agreement and applicable Use Levels. BeeBack hereby grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use any components as may be required to access and use the Services. Customer agrees to use the Services in accordance with the BeeBack privacy policy, a link to which may be found on the webpage. Technical support for the Services is provided as set forth in the applicable Service Description. Customer agrees to use the Services for professional or business use. BeeBack reserves the right to Update the Services at its discretion. Updates to the Services are included in the Fees and Customer agrees to use the most current version of the Service.

2.2. Limitations on Use.  Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its users, not to (i)modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services and/or BeeBack technology; (ii) knowingly or negligently access or use the Services in a manner that abuses or disrupts the BeeBack networks, security systems, user accounts, or Services of BeeBack or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means, (iii) transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise objectionable or unlawful; (iv) market, offer to sell, and/or resell the Services to any unauthorized third party; (v) use the Services in violation of BeeBack policies, applicable laws, ordinances or regulations; (vi) use the Services to send unsolicited or unauthorized advertising, junk mail, or spam; (vii) harvest, collect, or gather information or data regarding other users without their consent; (viii) transmit through or post on the Services any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, data privacy or right of publicity;(ix) transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs;(x) use the Services directly or indirectly for competitive benchmarking or other competitive analysis if Customer is a direct competitor of the applicable Service; or(xi) make any representations with respect to BeeBack or this Agreement (including, without limitation, that BeeBack is a warrantor or co-seller of any of Customer’s products and/or services). BeeBack shall have sole and exclusive discretion to determine applicability of the restrictions set forth above and any violations thereof.

2.3. Proprietary Rights. Except for the limited subscription rights granted herein, Customer has no right, title or interest in or to the BeeBack Marks or Services or any components provided by BeeBack in connection with the Services or any intellectual property rights related thereto. Customer acknowledges that BeeBack or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the BeeBack Marks and the Services and any components, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto.

2.4. BeeBack Marks. Unless expressly authorized under the terms of this Agreement, Customer agrees that it shall not use, register or apply for registration of any trademark, service mark, business name, company/trade name, domain name or social media account name or handle which is comprised of or incorporates in whole or in part any BeeBack Mark, or is otherwise confusingly similar to a BeeBack Mark. In the event of any breach of this provision, Customer agrees that it will do all things necessary to effect the transfer of any such same or similar trademark, service mark, business name, company/trade name, domain name or social media account name or handle to BeeBack, including but not limited to executing assignment documentation. Except as expressly granted herein, no license regarding the use of BeeBack’ copyrights, patents, trademarks, service marks or company/trade names is granted or will be implied.

3. ORDERS, FEES AND PAYMENT

3.1. Orders.  Customer may order Services using the BeeBack then-current ordering processes. All Orders are subject to acceptance by BeeBack in its discretion. All Customer information provided by or on behalf of Customer must be current, complete and accurate and Customer is responsible for keeping such information updated. Order information is subject to automatic processing by BeeBack for the purposes of managing Customer’s account.

3.2. Fees and Payment. Customer is responsible for all fees applicable to the Services, including any one-time implementation fees (“Fees”). All Fees are due and payable in advance.

3.3. Additional Services.  Customer may order additional Services at any time. Unless otherwise agreed in the applicable Order, any additional Services ordered by Customer following the Effective Date are subject to these Terms, and shall be coterminous with the Term for existing Services.

3.4. Taxes and Withholding.  Customer shall be responsible for all applicable taxes (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), tariffs, Universal Services Fund (USF) fees (if applicable to the Audio Services only) and/or duties) (collectively, “Taxes”) imposed by any government entity or collecting agency based on the Services, except those Taxes based on BeeBack net income, and/or those Taxes for which Customer has provided a certificate confirming Customer is otherwise exempt. If Customer fails to satisfy its Tax obligations herein, Customer agrees to reimburse BeeBack for any Taxes paid on Customer’s behalf and indemnify and hold BeeBack harmless against any claim, liability and/or penalties resulting therefrom.

4. TERM AND TERMINATION

4.1. Term.  These Terms shall apply as long as any Order is in effect. The period that Customer may access and use the Services (“Term”) shall be as specified in the Order and may include an initial period (“Initial Term”) and a renewal period (“Renewal Term”). If no Term is specified in the Order, then the Initial Term shall commence on the Effective Date for a twelve (12) month period, and thereafter shall automatically renew for additional twelve (12) month Renewal Terms on each anniversary thereof, unless either party provides notice of non-renewal thirty (30) days prior to expiration of the then-current term.

4.2. Termination for Convenience. During any Renewal Term, either party may terminate at any time with prior written notice and such termination shall be effective at the end of (i)thirty (30) days or (ii) Customer’s current billing cycle, whichever is earlier. Customer must submit written notice of termination to BeeBack at  [email protected] or otherwise in accordance with the applicable Service Description.

4.3. Termination for Cause.  Either party may terminate the Agreement (i) if the other party breaches any of its material obligations under the Agreement and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business, or (iii) immediately for a breach by Customer of Section  2 or Section 5.

4.4. Effect of Termination.   Upon termination of the Agreement for any reason, Customer will immediately discontinue all access and use of the Services. BeeBack has no obligation to maintain Customer Content following termination and, in any event, will destroy or delete Customer Content within thirty (30) days of Customer request, subject to compliance with BeeBack policies and applicable law. Neither party shall be liable for any damages resulting from termination of the Agreement; provided, however, termination shall not affect any claim arising prior to the effective termination date.

4.5. Survival.  The provisions of Sections 3 (Fees), 4.4 (Effect of Termination), 5 (Customer Content and Customer Accounts), 8 (Indemnification), 9 (Limitation of Liability), and 10.9 (Notices) shall survive any termination of the Agreement.

5. CUSTOMER CONTENT AND CUSTOMER ACCOUNTS

5.1. Private Customer Content for Paid Plans.Customer retains all rights to any and all of its Customer Content and BeeBack shall not own or license any data, content, information or material in such Customer Content. Each party shall apply reasonable technical, organizational and administrative security measures to keep Customer Content protected in accordance with industry standards, and Customer shall retain a current copy of Customer Content outside the Services. BeeBack will not monitor Customer’s or its user’s use of the Services, and BeeBack will not view, access or process any Customer Content, except: (i) for the sole purpose of providing the Services, (ii) as directed or instructed by Customer and its users, and/or (iii) for compliance with BeeBack policies, applicable law, regulation, or governmental request. Customer shall comply with all intellectual property laws related to the Customer Content and legal duties applicable to Customer as a data controller by virtue of the submission or storage of Customer Content within the Services, including providing all information or notices Customer is required by law to provide to users and obtain consent of the users, where required.

5.2. Public Customer Content for Free Plans.Customer retains all rights to any and all of its Customer Content Both Customer and BeeBack retain all rights to any and all of its Customer Content.

5.3. Customer Accounts. Customer is solely responsible for (i) the configuration of Customer’s Services account, (ii) the operation, performance and security of Customer’s equipment, networks and other computing resources used to connect to the Services, (iii) ensuring all users exit or log off from the Services at the end of each session, (iv) maintaining the confidentiality of Customer’s accounts, user id’s, conference codes, passwords and personal identification numbers used in conjunction with the Services, and (v) all uses of the Services by Customer and its users. BeeBack reserves the right to suspend the Services or terminate the Agreement if Customer misuses or otherwise shares login information among users. Customer will notify BeeBack immediately of any unauthorized use of its account or any other breach of security. BeeBack will not be liable for any loss that Customer may incur as a result of a third party using its password or account, and Customer may be held liable for any such losses incurred by BeeBack and/or another party. BeeBack reserves the right to review Customer’s account to confirm compliance with applicable Use Levels, and to terminate or suspend Customer’s access for overuse and/or misuse. Customer agrees to pay for any overage in excess of permitted Use Levels.

6. COMPLIANCE WITH LAWS

In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to, export and import, data protection, and privacy laws and regulations. Specifically, Customer shall provide the relevant persons and/or participants with all information or notices Customer is required by applicable privacy and data protection laws to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required. Notwithstanding any other provision in this Agreement, BeeBack shall have the right to immediately terminate this Agreement for noncompliance with applicable laws.

7. WARRANTIES

BeeBack WARRANTS THAT THE SERVICES WILL CONFORM TO THE SERVICE DESCRIPTIONS UNDER NORMAL USE. BeeBack DOES NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (iii) ERRORS OR DEFECTS WILL BE CORRECTED. BeeBack ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT BeeBack SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICE OR TO TERMINATE THE NON-CONFORMING SERVICES AND THIS AGREEMENT OR THE APPLICABLE ORDER, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BeeBack DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN SUCH JURISDICTIONS.

8. INDEMNIFICATION

8.1. Indemnification by BeeBack. Subject to Sections 8.2 and 8.3 below, BeeBack shall indemnify and defend Customer against any third party Infringement Claim brought against Customer, and pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to such Infringement Claim; provided that: (i) Customer promptly notifies BeeBack in writing of an Infringement Claim such that BeeBack is not prejudiced by any delay of such notification; (ii) BeeBack will have sole control over the defense and any settlement of any Infringement Claim; and (iii) Customer will provide reasonable assistance in the defense of same. BeeBack will reimburse Customer for reasonable expenses incurred in providing such assistance. BeeBack shall not enter into any settlement agreement which imposes any obligation on Customer without Customer’s prior written consent. For the purposes of this Agreement, “Infringement Claim” means any claim, suit or proceeding brought against a Customer based on an allegation that the Services, as used by Customer in accordance with this Agreement and the applicable documentation, infringes upon any patent, copyright or violates any trade secret rights of any third party.

8.2. Infringement Cures.  If Customer’s use of any of the Services is, or in BeeBack’ opinion is likely to be, enjoined as a result of an Infringement Claim, BeeBack shall, at its sole option and expense, either (i) procure for Customer the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Services to make their use non-infringing without degradation in performance or a material reduction in functionality. If options (i) and (ii) above are not reasonably available, BeeBack may, in its sole discretion and upon written notice to Customer, terminate this Agreement, cancel access to the Services and refund to Customer any prepaid, but unused Fees.

8.3. Limitation. BeeBack assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Customer’s access to and/or use of the Services following notice of an Infringement Claim; (ii) any modification of the Services by Customer or at its direction; (iii) Customer’s combination of the Services with third party programs, services, data, hardware, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding not applied by BeeBack or involving any marking or branding applied at Customer’s request.

8.4. Exclusive Remedy. THE FOREGOING STATES BeeBack SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.

8.5. Indemnification by Customer Customer shall indemnify and defend BeeBackainst any third party claim brought against BeeBack resulting from a breach of Section 2. or 5.2 or alleging that any Customer Content submitted by Customer infringes upon any patent or copyright, or violates trade secret or privacy rights of any party, and shall pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim; provided that: (i) BeeBack promptly notifies Customer in writing of such a claim such that Customer is not prejudiced by any delay of such notification, (ii) Customer will have sole control over the defense and any settlement of any such claim, and (iii) BeeBack will provide reasonable assistance in the defense of same. Customer will reimburse BeeBack for reasonable expenses incurred in providing such assistance. BeeBack may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, BeeBack shall not enter into any settlement agreement or otherwise settle any such claim without Customer’s express prior written consent.

9. LIMITATION ON LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. EXCEPT FOR(a) A PARTY’S INDEMNIFICATION OBLIGATIONS(b) A BREACH BY CUSTOMER OF SECTIONS 2 OR 5, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER.

10. ADDITIONAL TERMS

10.1. Cookies. By using the Services or websites, Customer agrees to the use of cookies which BeeBack uses to facilitate use of the Services and website. BeeBack does not store passwords or any other Customer personal information in the cookies, and BeeBack does not sell, trade or rent any Customer personal information to unaffiliated third parties. More information about BeeBack use of cookies is contained in the Privacy Policy.

10.2. Suspension of Service.  BeeBack may temporarily suspend the Services if BeeBack determines, in its sole discretion, that continued provision would compromise the security of the Services due to, without limitation, hacking attempts, denial of service attacks, mail bombs or other malicious activities, and BeeBack will take action to promptly resolve any such security issues. BeeBackrees to notify Customer of any such suspension and subsequent reactivation of the Services.

10.3. High-Risk Use. Customer acknowledges that the Services are not designed or intended for access and/or use in or during high-risk activities.

10.4. Assignment.  Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the other party’s prior written consent, which shall not be unreasonably withheld, except that either party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment without such consent shall be void. This Agreement will bind and inure to the benefit of each party’s successors or assigns.

10.5. Notices.  All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address as specified below. Notice shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii) five (5) days after deposit in the mail. Non-legal notices may be provided to the email address specified .

10.6. Entire Agreement; Order of Precedence. This Agreement sets forth the entire agreement and understanding of the parties relating to the Services and supersedes all prior and contemporaneous oral and written agreements. For any conflict between an executed Order, these Terms and the Service Descriptions, the conflict shall be resolved in that order, but only for the specific Services described in the applicable Order. For any conflict between these Terms and any BAA, this Agreement shall control. Nothing contained in any document submitted by Customer shall in any way add to or otherwise modify the Agreement or BeeBack program terms. The Terms may be updated by BeeBack from time to time without notice (but will be identified by the last updated date). Customer’s continued access to and use of the Service constitutes acceptance of the then-current Terms.

10.13. Contracting Party, Choice of Law and Location for Resolving Disputes.  The BeeBack contracting entity under this Agreement, the applicable notice address, governing law and jurisdiction to resolve disputes (including non-contractual disputes and claims) will be:

Last Updated: April 1, 2017