PLEASE REVIEW THIS SERVICES AGREEMENT SETTING OUT THE TERMS OF SERVICE CAREFULLY AS IT DETAILS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, CERTAIN RESTRICTIONS AND LIMITATIONS, AND EXCLUSIONS TO OUR LIABILITY. IT IS INTENDED TO BE A LEGALLY BINDING AGREEMENT. BY PROCEEDING TO DOWNLOAD, INSTALL AND/OR USE BEACONSTAC SOFTWARE, SAAS AND/OR SERVICES, WHETHER DIRECTLY OR THROUGH ANY SERVANT OR AGENT: (1) YOU ARE EXECUTING THIS AGREEMENT, (2) YOU ACKNOWLEDGE THIS IS A LEGALLY BINDING AGREEMENT, (3) YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS AND ACCOMPANYING ANNEXURES, AND (4) YOU AGREE TO BE BOUND BY ALL SUCH TERMS AND CONDITIONS AND ANNEXURES AS A PARTY TO THIS AGREEMENT AND, IF YOU ARE AN EMPLOYEE OR AGENT, TO BIND YOUR EMPLOYER OR PRINCIPAL.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS AND ANNEXURES OR ARE NOT PROPERLY AUTHORIZED TO BIND ANY EMPLOYER OR PRINCIPAL, PLEASE NAVIGATE AWAY FROM THIS PAGE WITHOUT DOWNLOADING THE SOFTWARE AND/OR REMOVE THE SOFTWARE IF YOU NO LONGER AGREE TO BE BOUND BY THESE TERMS.
This Terms of Service Agreement, including all and any Annexures and referenced URLs (“Agreement”), is entered into between Uniqode Phygital, Inc., with its principal place of business located at 12 East 49th Street, New York, NY 10017 (“Beaconstac”) and the customer identified on the order for Beaconstac Services (as later defined), (“Customer”), and effective on the date on which Customer executes this Agreement (“Effective Date”).
1. SCOPE. This Agreement governs Beaconstac’s provision to Customer of such Beaconstac SaaS and/or such other services selected and ordered (“Beaconstac Services”) by Customer on the Beaconstac website (“Website”). The parties agree that the terms of this Agreement shall extend to and govern all orders placed on Beaconstac by Customer as well as any receipt and use by Customer and/or Permitted Users (as later defined) of the Beaconstac Services. It is understood by Customer that any software functionality, including that enabled by Beaconstac’s proprietary software, ‘Beaconstac’ (“Software”), made available to Customer pursuant to this Agreement shall be provided as part of Beaconstac’s software-as-a-service offering (“Beaconstac SaaS”) forming part of the Beaconstac Services and that no physical copies of Software shall be provided by Beaconstac.
2. RIGHT TO USE. Beaconstac hereby grants to Customer, effective as of the date this Agreement is executed (“Service Commencement Date”), a worldwide, non-exclusive, non-transferable, revocable and limited right and license to receive, access and use the Beaconstac Services, through Customer’s internet connection or proprietary telecommunications line, for Customer’s internal business purposes (“Agreed Purpose”), in return for Customer’s strict compliance with the terms of this Agreement. While Beaconstac shall employ its reasonable efforts to safeguard any Service Data (as later defined) uploaded by Customer and/or Permitted Users to the Beaconstac system (“Beaconstac System”) used by Beaconstac as part of its provision of the Beaconstac Services, Customer acknowledges that it and/or its Permitted Users shall be solely responsible for making backup copies of any and all such Service Data. Customer specifically understands and agrees that the agreed Fees are specifically predicated on this allocation of risk and that consequently Beaconstac shall have no liability to Customer, its servants, or agents for any loss of or damage to such Service Data.
3. PERMITTED USE BY OTHERS. Beaconstac hereby authorizes Customer to permit Customer's affiliates, servants and agents (“Permitted Users”) to receive, access and use Beaconstac Services for the Agreed Purpose on condition that (i) Customer shall procure the compliance of Permitted Users with the terms of this Agreement and (ii) Customer shall remain responsible and liable for any misuse of the Beaconstac Services or breach of the terms of this Agreement by Permitted Users in connection with their use of the Beaconstac Services or in connection with this Agreement, specifically including any applicable security, integrity or privacy laws or regulations and Acceptable Use (as later defined).
4. ACCEPTABLE USE. Receipt, access and use of and to the Beaconstac Services by Customer and/or Permitted Users is granted on condition of their strict compliance with the following restrictions, that under no circumstances shall Customer and/or Permitted Users: (i) transmit content that violates the privacy, intellectual property or other proprietary rights of Beaconstac or any other party; (ii) knowingly or recklessly transmit viruses, trojan horses, worms, malicious code, or other harmful or destructive content; (iii) breach any terms of this Agreement, or any applicable law; (iv) attempt to probe, scan, test, re-engineer or violate the security features of Beaconstac Services or any associated system or network, or to obtain unauthorized access to materials or other information stored thereon; (v) attempt to sell, resell, transfer, assign, license, sublicense, pledge, lease, rent, distribute, timeshare, or share or otherwise commercially exploit or make the Beaconstac Services available to or for the benefit of any third party, other than Permitted Users; (vi) attempt to interfere with or disrupt the integrity or provision of the Beaconstac Services or the data contained therein; (vii) exploit or present minors in a sexual way, or promote adult sexual services, or represent a private person offering to trade or sell drugs, firearms, or other hazardous materials, including any indication or promotion of hate speech; (viii) remove any copyright, trademark, or other proprietary notices from any portion of the Beaconstac Services; (ix) use meta tags, hidden text or metadata with Beaconstac’s trademark, logo, URL or product name without Beaconstac’s prior written consent; (x) use Beaconstac’s user information to forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Beaconstac Services to send altered source-identifying information; (xi) share with any third party the login credentials used to access and use the Beaconstac Services; and/or (xii) attempt to interfere with the provision or use of the Beaconstac Services, whether directly or indirectly, by any other manner not expressly mentioned above (collectively, “Acceptable Use”).
5. ACCOUNT ACCESS. To enable receipt, access and use of and to the Beaconstac Services, Customer and/or each Permitted User shall register for and maintain an active Beaconstac account (“Account”). It is a condition of receipt, access and use of and to the Beaconstac Services that each Permitted User must be at least 18 years of age and Beaconstac shall, in no manner whatsoever, be liable for any violation of the foregoing. Customer shall be responsible for all activity that emanates from any Customer or Permitted User Account and for any use not in conformance with Acceptable Use.
6. SUPPORT. By creating an Account, Customer consents to Beaconstac sending Customer and/or Permitted Users email communications necessary to give effect to the terms of this Agreement. Customer and/or Permitted Users may opt-out of receiving such communication at any time by clicking the unsubscribe button located on any such email communications from Beaconstac. Customer acknowledges that opting out of such communication may impact the quality and beneficial use of the Beaconstac Services. As part of its provision of the Beaconstac Services, Beaconstac shall make available to Customer and/or Permitted Users reasonable support and information in connection with same, which support and information may be provided via phone, email or other reasonable means, in accordance with instructions to be shared by Beaconstac with Customer and each Permitted User.
7. NON-COMPLIANCE. Upon Customer or any Permitted User becoming aware of any non-compliance with the terms of this Agreement, including without limitation any Acceptable Use, Account maintenance, and/or applicable security, integrity or privacy requirements, Customer shall notify Beaconstac without undue delay, by sending an email summarizing any such non-compliance to email@example.com, to enable any appropriate remedial action to be undertaken by Beaconstac.
8. MODIFICATIONS TO SYSTEM & UPDATES. Customer acknowledges that it is obtaining the benefit of a standard service and that, as such, Beaconstac may, in its sole discretion: (i) reengineer its network or service components, (ii) change the locations of its hosting centers, (iii) modify and/or replace technology and/or service architectures, without material degradation of the Beaconstac Services, and (iv) from time to time, provide enhancements or improvements to the features and/or functionality of the Beaconstac Services, which may include patches, bug fixes, updates, upgrades and other modifications (collectively, “Updates”). As the Beaconstac Services evolve over time, such Updates may operate to modify or delete certain then-existing features and/or functionalities of the Beaconstac Services. To this end, Customer hereby agrees that Beaconstac has no obligation: (i) to provide any specific Updates, or at all, or (ii) to continue to provide or enable any particular features and/or functionalities of Beaconstac Services to Customer and/or Permitted Users. Customer further agrees that all Updates will, upon installation by Beaconstac, be: (i) deemed to constitute an integral part of the Beaconstac Services, and (ii) subject to the terms of this Agreement.
9. SALE OF BEACONSTAC HARDWARE. From time to time, Beaconstac makes available for sale certain hardware, including, without limitation, beacon or near-field communication technology (each, a “Product”). In the event Customer would like to purchase any Product, it shall place an order for such Product on the Website, which order shall be subject to the provisions of this Section 9 and more generally these standard terms and conditions. Beaconstac shall supply any such ordered Products, at the corresponding prices for same set forth on the Website at the time of order. Shipments of the Products shall be made FCA (Incoterms 2010) Beaconstac’s or its affiliate’s facility (“Point of Origin”). Notwithstanding the foregoing, title to the Products and risk of loss will pass to Customer upon delivery to the carrier at the Point of Origin. For shipments outside the United States of America, Customer shall be responsible for clearing the Product shipment for import and shall pay all applicable duties, taxes and other charges, if any, upon import. Customer acknowledges and agrees that any estimated shipment or delivery dates, if any, are good faith estimates only, and Beaconstac shall not be liable for any loss, damage or penalty on account of any delay to such shipping or delivery dates. Beaconstac warrants that Products shall accord in all material respects to their corresponding specifications and any documentation supplied therewith (“Specification”). In the even the Products fail to comply in any material respect with such Specification, within 90 days of their purchase, then Customer may contact Beaconstac via the contact information provided herein For such non-conforming Products, Beaconstac may, at the Customer’s option, arrange for either: (i) replacement of the Products within a commercially reasonable time period; or (ii) a refund of the amounts paid for the Products, less shipping costs.
10. SDK. In circumstances where Customer requires software development to enable it to use the Beaconstac Services in conjunction with any Products and the Beaconstac mobile application (“Purpose”), Beaconstac hereby grants the Customer a worldwide, non-exclusive, non-transferable, royalty-free license to use the software development kit (“SDK”) to realize the Purpose, which SDK shall be made available by Beaconstac as a downloadable file.
11. FEES. Customer agrees to pay Beaconstac the fees corresponding to the particular Beaconstac Services ordered by Customer, as set forth from time to time on the Website (“Fees”), in accordance with the payment terms set out therein. Such Fees are exclusive of all applicable taxes in any relevant jurisdiction and Customer shall be responsible for the payment of all such validly levied taxes, specifically excluding all and any taxes accruing on the basis of Beaconstac’s income which shall remain the responsibility of Beaconstac. Customer acknowledges that all Fees due hereunder are payable in advance and that any delay or failure on the part of Customer to pay the agreed Fees by the due date for payment shall enable Beaconstac, without further notice, to suspend the Beaconstac Services or terminate this Agreement in accordance with its terms.
13. INTELLECTUAL PROPERTY RIGHTS. Notwithstanding anything to the contrary set forth in this Agreement, each party shall continue to own title to any Intellectual Property Rights (i) it owned as at the Effective Date, (ii) created and owned independently of this Agreement, and (iii) any modifications, adaptations and derivations of subsections (i) and (ii) above (“Background IP”) and nothing in this Agreement shall operate to transfer any Background IP between the parties. Beaconstac and/or its licensors own all worldwide Intellectual Property Rights in the: (a) Software and user interfaces used for providing the Beaconstac Services; (b) Beaconstac SaaS; (c) Products; (d) SDK; and (e) all trademarks, service marks and logos of Beaconstac (“Beaconstac IP”). Except for the right to receive, access and use the Beaconstac Services as expressly set forth herein specifically for the Purpose, no right or license is granted hereunder with respect to the Beaconstac IP. Further, Customer shall not, and shall procure that its Permitted Users shall not, nor permit any third party to: (a) use, copy, adapt, modify or create derivative works of the Beaconstac IP; (b) where applicable, reverse-engineer, disassemble, or decompile the Beaconstac IP or otherwise attempt to determine its underlying source code; (b) sell, lease, sublicense, rent, lend or provide any portion of the Beaconstac IP to any third party or allow the use of the Beaconstac IP by, or for the benefit of any person other than its Permitted Users ((a), (b) and (c) collectively “IP Restrictions”. For the purposes of this Agreement, “Intellectual Property Rights” shall mean all patents, inventions, discoveries, registered and unregistered rights in respect of copyright, industrial and other designs, databases, circuit layouts, trademarks, domain names, know-how, confidential information trade secrets, and all other intellectual property.
14. CUSTOMER/PERMITTED-USER REQUIREMENTS & CONDUCT. Customer shall ensure that neither it nor any Permitted Users will, in connection with their use of the Beaconstac Services, upload, share, or otherwise distribute any electronic data, text, messages or other materials, including personal data of such Permitted User (“Service Data”) in violation of Acceptable Use. Beaconstac reserves the right, in its sole discretion, to remove any Service Data that, in its good faith judgment, fails to comply with the terms of this Agreement, any other rules of user conduct, or is otherwise harmful, objectionable, or inaccurate. Beaconstac shall not be responsible for any failure or delay in removing such content or any business consequences of removing same.
15. SERVICE DATA. As between the parties, all right, title and interest in and to Service Data remains vested in Customer and Customer hereby grants Beaconstac a non-exclusive, worldwide, royalty free license to use,
transmit, distribute, modify, reproduce, display, store and process Service Data to the extent necessary for Beaconstac to make available and provide the Beaconstac Services to Customer and/or Permitted Users and to perform its
and will comply with such restrictions.In no circumstances shall Beaconstac share such Service Data or use such Service Data for the benefit of Beaconstac directly or Beaconstac’s other customers.
Customer understands and acknowledges that, in connection with the use of the Service by the Customer, its Permitted Users, and/or End Users, Beaconstac shall process any personal data only that is part of the Service Data on the Customer’s behalf and as a data processor. Beaconstac shall provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Information under this Agreement/ Data Processing Agreement when Customer is required to respond to such requests under applicable data protection laws. In the event that any such request is made directly to Beaconstac, Beaconstac shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so. In the event, the Customer is a resident of the EEA (including the UK and Switzerland), the Processing of such Customer’s personal data outside EEA will be governed by the Data Processing Agreement available here.
Customer shall not disclose (and shall not permit any individual to disclose) any special categories of personal data (as defined under GDPR) to Beaconstac for processing under this Agreement. Beaconstac shall ensure that any person Beaconstac authorizes to process Service Data shall protect the Service Data in accordance with Beaconstac’s confidentiality obligations under this Agreement.
Customer acknowledges and agrees that Beaconstac and its group companies may access or disclose information about Customer, Customer's account, Permitted Users including Service Data, in order to (a) comply with the law or respond to lawful requests or legal processes; or (b) prevent any infringement of Beaconstac’s or its group companies’ customers’ proprietary rights. Further, at Beaconstac’s sole discretion, any suspected fraudulent, abusive, or illegal activity by Customer may be referred to law enforcement authorities.
16. ANONYMOUS DATA. Notwithstanding anything to the contrary herein, Customer grants Beaconstac a royalty-free license and right to aggregate, collect and analyze Service Data relating to the provision, use, and performance of the Service(s) and to use (during and after the term of this Agreement) such Service Data to develop and improve the Service(s), and create de-identified, aggregated or anonymous data which may, in part, include processing of and anonymizing Service Data (“Anonymous Data”) for the purposes of operating, analysing, improving, or marketing the Beaconstac Services, provided always that any such Anonymous Data will in no circumstances, identify Customer or any Permitted User or enable the identification of same and that all persistent identifiers have been removed.Customer agrees that such Anonymous Data shall be owned by Beaconstac, where such Anonymous Data excludes any Service Data, and in the event that Customer obtains any ownership of such Anonymous Data, Customer does hereby grant, convey, and transfer all rights in such Anonymous Data to Beaconstac.
17. SERVICE USAGE DATA. For the sole purpose of providing and improving the Beaconstac Services, Beaconstac may collect and use data relating to the usage by Customer and/or Permitted Users of the Beaconstac Services, including without limitation monitoring and analysing usage and traffic patterns of its websites and Beaconstac Services. Such usage data: (a) is not Service Data; (b) does not include any personal information about Customer or Permitted Users; and (c) is owned by Beaconstac.
18. CONFIDENTIALITY. Any data and information, whether written, oral, or visual, including data and information that at the time of disclosure by disclosing party to the receiving party is identified as ‘confidential’ or which, based upon the content and circumstances of disclosure, would lead a reasonable person to conclude such data and information to be ‘confidential’ shall be deemed “Confidential Information”. For the purpose of this Agreement, Service Data also forms a part of the Confidential Information.
If Customer chooses, or Customer is provided with, a user identification code, login, password, or any other piece of information as part of Beaconstac’s security procedures Customer must treat such information as confidential. Customer must not disclose it to any third party. Beaconstac has the right to disable any user identification code or password, whether chosen by Customer or allocated by Beaconstac, at any time, if in Beaconstac’s reasonable opinion, Customer has failed to comply with any of the provisions of this Agreement. Beaconstac will not be responsible for any activities, including any attempted or actual access or loss of data occurring under Customer’s Account as a result of Customer’s non-compliance with its obligations under Section 18.
Each party shall hold the Confidential Information of the other party in confidence, use same only to meet its obligations under the Agreement and not disclose such Confidential Information to any third party, save as expressly permitted by this Section 18. Each party may share the Confidential Information with those of its servants and agents that have a bona fide reason to receive same in furtherance of the sharing party’s obligations under the Agreement provided: (i) the sharing party remains liable for the breach of this section by its servants and agents receiving Confidential Information; and (ii) any such receiving servants and agents are similarly bound by broadly comparable obligations of confidentiality. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) was already known by the receiving party through legitimate means; (b) is in the public domain, or becomes so, without fault of receiving party; (c) is independently derived by receiving party without access to the Confidential Information of the other party; or (d) is obtained from a third party absent breach of any obligations of confidentiality. Any breach of this provision by either party may cause irreparable harm to the other party for which monetary damages would be an inadequate remedy. Consequently, the non-breaching party shall be entitled to seek injunctive or other equitable relief from the court without proof of loss.
19. DATA SECURITY AND PRIVACY. Beaconstac shall use appropriate technical and organizational measures to protect the Service Data. The measures used are designed to provide a level of security appropriate to the risk of processing the Service Data. Beaconstac shall, without undue delay, notify the Customer of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Service Data processed by Beaconstac.
The Customer warrants to Beaconstac that (a) it has established notices or policies for and ensures compliance with all applicable data protection laws relating to the collection and transmission of personal data forming part of Service Data; and (b) it has obtained and maintains necessary authorizations, approvals, and permissions for Beaconstac to process such personal data for the purpose of providing Service(s). Customer is responsible for the loss, damage, destruction, and unlawful transmission of personal data in violation of this Section and Customer acknowledges and agrees that Beaconstac shall have no liability for claims arising from Customer’s failure to comply with this Section 19.
20. WARRANTY & DISCLAIMER.
20.1. LIMITED WARRANTY. Beaconstac represents and warrants that it has all necessary authority to enter into this Agreement and all necessary rights, title and interest to enable Beaconstac to perform its obligations under this Agreement, including the provision of Beaconstac Services.
20.2. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 20.1, BEACONSTAC MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, NOR ANY WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING. BEACONSTAC DOES NOT WARRANT THAT THE BEACONSTAC SERVICES AND/OR USAGE OF THE PRODUCTS WILL BE FREE OF INTERRUPTIONS, ERRORS, BUGS, VIRUSES OR SECURITY ISSUES OR THAT THEY WILL MEET ANY SPECIFIC CUSTOMER OR PERMITTED USER REQUIREMENTS. CUSTOMER AGREES THAT IT IS FOR CUSTOMER TO VALIDATE THAT THE BEACONSTAC SERVICES MEET THE SPECIFIC NEEDS OF CUSTOMER AND/OR PERMITTED USERS.
21.1. BEACONSTAC INDEMNITY. Beaconstac hereby agrees to indemnify, and defend Customer, its directors, officers and employees (“Indemnified Customer Parties”) from and against all costs, expenses (including reasonable attorneys’ fees), liabilities, and damages suffered by Indemnified Customer Parties, arising out of any third-party claim: (i) that Customer’s receipt, access, and use or possession of the Beaconstac Services and/or Products infringed the Intellectual Property Rights of a third party (“IP Claim”); (ii) for death or bodily injury resulting from the negligence of Beaconstac, its servants or agents. Notwithstanding the foregoing, Beaconstac shall have no liability or obligation to indemnify Indemnified Customer Parties against any IP Claim to the extent such IP Claim results from: (a) any modification or unauthorized use of the Beaconstac Services and/or the Products (collectively, “Deliverables”); or (b) any breach of this Agreement by Customer and/or Permitted Users ((a) and (b), collectively “Indemnity Exclusions”).
21.2. IP CLAIM. If the provision by Beaconstac of any Deliverable becomes the subject matter of a third party IP Claim that does not fall within the Indemnity Exclusions, Beaconstac may, at its option: (i) obtain for Customer and/or Permitted Users the right to continue using the affected portion of the Deliverables; or (ii) replace or modify the affected portion of the Deliverables. If either of the above options are not reasonably available, Beaconstac may immediately terminate this Agreement upon giving 15 calendar days’ prior written notice to Customer. This Section 21 states Beaconstac’s sole and exclusive liability with respect to any IP Claim (whether actual or alleged) resulting from Beaconstac’s provision of Deliverables (or any part thereof) pursuant to this Agreement.
21.3. CUSTOMER INDEMNITY. Customer hereby agrees to indemnify and defend Beaconstac, its directors, officers and employees (“Indemnified Beaconstac Parties”) from and against all costs, expenses (including reasonable attorneys’ fees), liabilities, and damages suffered by the Indemnified Beaconstac Parties, arising out of any third-party claim: (i) based on violation by Customer and/or any Permitted User of any applicable law; (ii) that Beaconstac’s storage or use of Service Data in accordance with this Agreement infringed the Intellectual Property Rights of a third party; (iii) for death or bodily injury resulting from the negligence of Customer, its servants or agents. The indemnification obligation set forth above will survive the termination or expiration of this Agreement.
22.1. EXCLUSION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL BEACONSTAC, ITS SERVANTS AND AGENTS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF A STATUTORY DUTY OR OTHERWISE, FOR ANY PURE ECONOMIC LOSS, LOST PROFITS, LOST BUSINESS OPPORTUNITY, ANTICIPATED SAVINGS, REPUTATIONAL DAMAGE, LOST GOODWILL, LOST (INCLUDING THEFT THROUGH HACKING) OR CORRUPTED DATA OF CUSTOMER OR ANY THIRD PARTY, OR ANY INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE BEACONSTAC SERVICES OR THIS AGREEMENT, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSSES.
22.2. LIMITATION OF LIABILITY. BEACONSTAC’S ENTIRE LIABILITY FOR ALL CLAIMS IN AGGREGATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF DELIVERABLES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, IS LIMITED TO AND SHALL NOT EXCEED: (A) IN THE CASE OF NON-PRODUCT BASED CLAIMS, THE FEES ACTUALLY PAID BY CUSTOMER TO BEACONSTAC FOR THE BEACONSTAC SERVICES DURING THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CLAIM AROSE; OR (B) IN THE CASE OF PRODUCT BASED CLAIMS, THE PRICE PAID BY CUSTOMER FOR THE NON-CONFORMING PRODUCTS THAT RESULTED IN THE CLAIM.
22.3. EXCEPTIONS TO LIABILITY LIMITATION. NOTWITHSTANDING SECTIONS 22.1 AND 22.2 ABOVE, NEITHER PARTY SEEKS TO EXCLUDE LIABILITY FOR WILLFUL DEFAULT, FRAUD, DEATH OR BODILY INJURY RESULTING FROM ITS NEGLIGENCE AND/OR ANY OTHER MATTER FOR WHICH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY LAW (COLLECTIVELY, “LIABILITY CAP EXCEPTIONS”). CONSEQUENTLY, THE EXCLUSIONS AND LIMITATION SET OUT IN SECTIONS 22.1 AND 22.2 ABOVE SHALL NOT APPLY TO LIABILITY CAP EXCEPTIONS.
22.4. FAIRNESS OF LIABILITY PROVISION. CUSTOMER ACKNOWLEDGES AND AGREES THAT BEACONSTAC HAS ENTERED INTO THIS AGREEMENT AND PROVIDED CUSTOMER AND PERMITTED USERS WITH ACCESS TO THE BEACONSTAC SERVICES FOR THE AGREED LEVEL OF FEES IN RELIANCE UPON THE EXCLUSIONS OF LIABILITY, SET FORTH IN SECTION 22.1 THE LIMITATION OF LIABILITY, SET FORTH IN SECTION 22.2 AND THE EXCEPTIONS TO LIABILITY LIMITATIONS SET OUT IN SECTION 22.3 (COLLECTIVELY, “AGREED RESTRICTIONS”). CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT AS AN ESSENTIAL CONDITION OF BEACONSTAC ENTERING INTO THIS AGREEMENT AND PROVIDING THE BEACONSTAC SERVICES, SUCH AGREED RESTRICTIONS REFLECT A REASONABLE AND FAIR ALLOCATION OF THE RISK BETWEEN BEACONSTAC AND CUSTOMER, UPON WHICH THE AMOUNT OF THE FEES HAS BEEN PREDICATED AND AGREED.
23. TERM, RENEWAL & TERMINATION.
23.1. TERM. The Beaconstac Services are provided and paid for by the Customer on either a monthly plan basis or an annual plan basis through the Website. The selected basis of either a monthly payment basis or an annual payment basis (as selected by Custom through the Website, the “Term Basis”) forms the basis for the term. This Agreement is effective as of the Effective Date and shall continue in effect for the Term Basis (the “Initial Term”), unless terminated earlier as provided herein. After the Initial Term and unless terminated earlier, this Agreement shall automatically renew for additional Term Basis periods (each, a “Renewal Term”). For example, a monthly subscription would have an Initial Term of one month and a Renewal Term of one month, whereas a yearly subscription would have an Initial Term of one year and a Renewal Term of one year. The Initial Term and any Renewal Terms hereunder shall be collectively referred to as the “Term.” Either Party may terminate this Agreement by providing written notice to the other Party no later than fifteen (15) days prior to the start of a Renewal Term, whereupon this Agreement shall terminate at the end of the Initial Term or Renewal Term, as applicable, in effect at the time of such notice.
23.2. TERMINATION FOR CONVENIENCE. Either party may terminate this Agreement for its convenience, without further liability, at any time by providing 30 days’ prior written notice to the other party.
23.3. TERMINATION FOR CAUSE. Either party may terminate the Agreement by notice in writing in the following circumstances: (i) the other party materially breaches the Agreement and fails to cure such breach within 20 calendar days of a written request by the non-breaching party to do so; (ii) the other party becomes insolvent or generally unable to pay its bills; (iii) Beaconstac may terminate the Agreement for cause where Customer has failed to pay any Fees that are at least 10 calendar days in arrears following the issuance by Beaconstac of a written request for payment.
23.4. SUSPENSION. Beaconstac may without notice suspend access to the Beaconstac Services in circumstances where: (i) Fees are overdue on the Customer’s Account; (ii) Customer and/or Permitted Users are non-compliant with Acceptable Use; (iii) Customer is in breach of any provision of the Agreement; (iv) suspension is advisable to prevent or mitigate any damage or harm to Beaconstac Services or other users; and/or (v) Beaconstac intends to perform maintenance, updates or improvements to the Beaconstac Services.
23.5. CONSEQUENCES OF TERMINATION.
(i) Termination of Trial Account - Beaconstac offers a trial of its Services to its Customers and such trial shall last for a period of fourteen (14) days ("Trial Period"). Beaconstac shall in its sole discretion cancel such trial Account upon completion of the Trial Period. In the event the Customer does not become a paying Customer of Beaconstac post the Trial Period, that Customer’s Account shall become inactive.
(ii) Termination by Beaconstac - In the event Beaconstac terminates the Services of the Customer in accordance with this Agreement, Beaconstac reserves the right to delete all Service Data in its possession within thirty (30) days upon the cancelling such Customer's Account.
(iii) Consequences of Termination - Upon termination of Your Account for any reason: (i) Beaconstac shall disable all access of Customer and Permitted Users to the Beaconstac Services; (ii) Customer shall pay all amounts due and payable to Beaconstac upon demand; (iii) Beaconstac shall not be liable to refund any amounts paid in advance by Customer for the Beaconstac Services.
(iv) Data Retention - In the event the Customer’s Account(s) remains inactive for a period of twelve (12) months ("Dormant Status"), Beaconstac reserves the right to delete all Service Data in its possession within thirty (30) days upon the Customer Account reaching Dormant Status. Without prejudice to the foregoing, in the event Customer is terminating their Account with Beaconstac, Customer can request deletion of their Service Data to Beaconstac by reaching out to firstname.lastname@example.org and Beaconstac shall delete all the Service Data in its possession within thirty (30) days from the date of such request. Notwithstanding anything to the contrary all Fees paid by the Customer to Beconstac are non-refudable except when a Customer terminates the Account within 30 days from the date of becoming a paid Customer of Beconstac, all Fees paid by Customer in such cases are full refundable.
24. MISCELLANEOUS PROVISIONS.
24.1 FORCE MAJEURE. Neither party will be in default of its failure to perform any obligation hereunder (other than any payment obligation) to the extent that its non-performance results from causes beyond its reasonable control, including, without limitation, acts of God, civil commotion, epidemics and pandemics (together with the resulting consequences or mitigations of same), strikes, labor disputes, internet service disruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements. Upon the duration of any such event of force majeure continuing for longer than 10 calendar days, the other party may terminate this Agreement for its own convenience, without incurring additional liability.
24.2 ASSIGNMENT. (a) Subject to Subsection (b) of this Section 24.2, neither party may assign, novate or otherwise transfer any of its rights and/or obligations under this Agreement to any person without the prior written consent of the other party and any attempt to do so will be void. (b) Notwithstanding Subsection (a) of this Section 24.2, Beaconstac may, without consent, assign this Agreement to an Affiliate or in connection with any merger, acquisition, reorganization, or other transfer of all or substantially all of its assets.
24.3 NOTICES. All notices made under or in connection with this Agreement must be in writing and sent to the other party at the address for such other party first set out in this Agreement or, in the case of the Customer, at the address provided by Customer at the time the order for Beaconstac Services was placed. Either party may elect to change its address for the purposes of receiving notices pursuant to this Agreement by providing the other party with written notice of such change. In the event of a termination under Section 23.1, Customer may provide notice through the Website, if such functionality is present at the time of such termination notice.
24.4 SURVIVAL. Each party’s obligations under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement shall survive such termination, cancellation or expiration.
24.5 WAIVER. Any waiver or purported waiver shall be void unless made in writing and neither party’s failure to exercise any of its rights under this Agreement shall constitute or be deemed a waiver or forfeiture of any such rights.
24.6 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between the parties as to the matters set out herein and supersedes any prior agreement or communication. Any subsequent modification of this Agreement, or any part of it, shall only be effective if reduced to writing and signed and dated by both parties.
24.7 SEVERABILITY. If any provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remainder of the Agreement shall continue to be valid and such impacted provision shall be deemed modified to the extent necessary to render such provision enforceable, while preserving to the fullest permissible extent the intent of the parties.
24.8 GOVERNING LAW & JURISDICTION. The Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York and each party submits to the exclusive jurisdiction of the courts of New York City.