We are Beamlink, Inc., a Delaware corporation (“Beamlink,” “we,” “our”, “us”, or “the Company”), and we operate the Beamlink Solution (defined below), along with our related websites, hosted applications, mobile or other services, and any other software, websites, applications, APIs, webtools, third party tools, forums, venues, features, or functionalities provided on or in connection with the foregoing (collectively, the “Service”). These Terms and Conditions constitute a legally binding contract between you and Beamlink regarding your use of the Service. For the purposes of these Terms, “You” includes both you, the person or entity, using the Service, and You are referred to herein as “Customer” as well. PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THESE TERMS. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND BEAMLINK’S PROVISION OF THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BETWEEN BEAMLINK AND YOU TO BE BOUND BY THESE TERMS.
"Access Credentials" means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Hosted Services.
"Agreement" has the meaning set forth in the preamble.
"Authorized User" means each of the individuals authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.
"Confidential Information" has the meaning set forth in Section 9.1.
"Customer" has the meaning set forth in the preamble.
"Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.
"Customer Failure" has the meaning set forth in Section 4.2.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
"Documentation" means any manuals, instructions or other documents or materials that the Beamlink provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Beamlink Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
"Effective Date" has the meaning set forth in the preamble.
"Fees" has the meaning set forth in Section 7.1.
"Force Majeure Event" has the meaning set forth in Section 14.1.
"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 (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Beamlink Systems as intended by this Agreement. Harmful Code does not include any Beamlink Disabling Device.
"Hosted Services" has the meaning set forth in Section 1.1.
"Indemnitee" has the meaning set forth in Section 12.2.
"Indemnitor" has the meaning set forth in Section 12.2.
"Initial Term" has the meaning set forth in Section 10.1.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, 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 hereunder and the cost of pursuing any insurance providers.
“Order Form” means a separate writing or agreement between Beamlink and Customer that incorporates this Agreement by reference.
"Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's internal business operations.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
"Personal Information" means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located.
"Privacy and Security Policy" has the meaning set forth in Section 6.1.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content. "Processing" and "Processed" have correlative meanings.
"Beamlink" has the meaning set forth in the preamble.
"Beamlink Disabling Device" means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Beamlink or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Beamlink or its designee.
"Beamlink Indemnitee" has the meaning set forth in Section 12.1.
"Beamlink Materials" means the Service Software, Specifications, Documentation and Beamlink Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Beamlink or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Beamlink Systems. For the avoidance of doubt, Beamlink Materials include Resultant Data and any information, data or other content derived from Beamlink's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"Beamlink Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Beamlink or any Subcontractor.
"Beamlink Systems" means the information technology infrastructure used by or on behalf of Beamlink in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Beamlink or through the use of third-party services.
"Receiving Party" has the meaning set forth in Section 9.1.
"Reimbursable Expenses" has the meaning set forth in Section 7.3.
"Renewal Term" has the meaning set forth in Section 10.2.
"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
"Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
"Service Software" means the Beamlink software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, including without limitation the Beamlink Solution, that Beamlink provides remote access to and use of as part of the Services.
"Services" has the meaning set forth in the preamble, as may be modified by an Order Form.
“Beamlink Solution” means the service known as the Beamlink Solution, including without limitation: Bentocell cellular network base station devices, that provision a cellular LTE network to existing LTE devices, with associated accessories including a PoE injector, AC plug cord, pole mount adapter, and wall mount adapter, access to the “Maia” dashboard which provides controls to Bentocells, live data from Bentocells, and notifications and alerts to network administrators, and remote support from the Beamlink engineering team to establish the Bentocell cell sites and answer questions about the use of Maia software.
"Specifications" means the specifications for the Services set forth in the Documentation.
"Subcontractor" has the meaning set forth in Section 1.5.
"Support Schedule" has the meaning set forth in Section 4.5.
"Support Services" has the meaning set forth in Section 4.5.
"Term" has the meaning set forth in Section 10.1 and Section 10.2.
"Territory" means the United States.
"Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Beamlink.
1.1. Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, Beamlink shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Services in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users ("Hosted Services") in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:
(a) Regularly scheduled downtime;
(b) Service downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond Beamlink's reasonable control, including Customer's or any Authorized User's use of Third-Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and
(d) any suspension or termination of Customer's or any Authorized Users' access to or use of the Hosted Services as permitted by this Agreement.
1.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Beamlink has and will retain sole control over the operation, provision, maintenance and management of the Services and Beamlink Materials, including the: (i) Beamlink Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iii) performance of Support Services and Services maintenance, upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Beamlink Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Beamlink; (ii) results obtained from any use of the Services or Beamlink Materials; and (iii) conclusions, decisions or actions based on such use.
1.3. Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party's primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party's service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
1.4. Changes. Beamlink reserves the right, in its sole discretion, to make any changes to the Services and Beamlink Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Beamlink's services to its customers, (ii) the competitive strength of or market for Beamlink's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with the change procedure set forth in Schedule B. No requested changes will be effective unless and until memorialized in a written change order signed by both parties, except that Customer may increase or decrease the number of Authorized Users for any Services.
1.5. Subcontractors. Beamlink may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
1.6. Suspension or Termination of Services. Beamlink may, directly or indirectly, and by use of a Beamlink Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Beamlink Materials, without incurring any resulting obligation or liability, if: (a) Beamlink receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Beamlink to do so; or (b) Beamlink believes, in its good faith and reasonable sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement (including nonpayment), or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 1.6 does not limit any of Beamlink's other rights or remedies, whether at law, in equity or under this Agreement.
2.1. Applicability. The Order Form to which these terms are incorporated by reference is an offer by Beamlink for the sale of the goods specified on the face of the Order Form (the "Goods") to the Customer in accordance with and subject to these Terms.
2.2. Delivery Date. Beamlink shall deliver the Goods in the quantities and on the date(s) specified in the Order Form or as otherwise agreed in writing by the parties (the "Delivery Date").
2.3. Delivery Location. All Goods shall be delivered to Customer’s address specified in the Order Form, unless Buyer has specified a separate “Ship To” address (collectively, the "Delivery Location") during Customer’s normal business hours or as otherwise instructed by Customer or set forth in the Order Form.
2.4. Title and Risk of Loss. Title passes to Customer upon shipment of the Goods from Beamlink’s premises. Customer bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
2.5. Price. The price of the Goods is the price stated in the Order Form (the "Price"). If no price is included in the Order Form, the Price shall be the price set out in Beamlink’s published price list in force as of the date of the Order Form.
2.6. Return of Goods. Upon the termination of this Agreement, Customer agrees to promptly return the Goods to Beamlink, at Beamlink’s direction and expense. Upon such return, title to the Goods shall be conveyed to Beamlink.
3. Authorization and Customer Restrictions.
3.1. Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Beamlink hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Beamlink Materials as Beamlink may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, the conditions and limitations set forth in this Agreement and Beamlink's End User License Agreement, in such form as Beamlink may make available. This authorization is non-exclusive and non-transferable.
3.2. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Beamlink Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Beamlink Materials and the Third-Party Materials are and will remain with Beamlink and the respective rights holders in the Third-Party Materials.
3.3. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Beamlink Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Beamlink Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Beamlink Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Beamlink Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Beamlink Materials or access or use the Services or Beamlink Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Beamlink Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Beamlink Systems or Beamlink's provision of services to any Third-Party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Beamlink Materials, including any copy thereof;
(h) access or use the Services or Beamlink Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Third-Party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Beamlink customer), or that violates any applicable Law;
(i) access or use the Services or Beamlink Materials for purposes of competitive analysis of the Services or Beamlink Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Beamlink's detriment or commercial disadvantage;
(j) access or use the Services or Beamlink Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or Beamlink Materials beyond the scope of the authorization granted under Section 3.1.
4.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Beamlink Personnel with such access to Customer's premises and Customer Systems as is necessary for Beamlink to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Beamlink may reasonably request to enable Beamlink to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2. Effect of Customer Failure or Delay. Beamlink is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
4.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Beamlink Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Beamlink of any such actual or threatened activity.
4.4. Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Beamlink or any Subcontractor. In the event of a violation of this Section 4.4, Beamlink will be entitled to liquidated damages equal to the compensation paid by Beamlink to the applicable employee or contractor during the prior twelve (12) months.
4.5. Service Support. The Services include Beamlink’s standard customer support services ("Support Services") in accordance with the Beamlink service support schedule then in effect (the "Support Schedule"). Beamlink may amend the Support Schedule from time to time in its sole discretion.
5. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
6.1. Beamlink Systems and Security Obligations. Beamlink will employ security measures in accordance with applicable industry practice ("Privacy and Security Policy").
6.2. Data Breach Procedures. Beamlink maintains a data breach plan in accordance with the criteria set forth in Beamlink's Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a "Data Breach" (as defined in such plan).
6.3. Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, "Prohibited Data"). Customer shall not and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Beamlink Systems or any Beamlink Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
6.4. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Beamlink Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
6.5. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
7.1. Fees. Customer shall pay Beamlink the fees set forth in an Order Form (or, if there is no applicable Order Form, as per the fee schedule posted to the Beamlink website ("Fees") in accordance with this Section 7.
7.2. Fee Increases. Beamlink may increase Fees no more than once annually for any contract year of the Term, including any contract year of any Renewal Term, by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of that contract year/such Renewal Term.
7.3. Reimbursable Expenses. If so provided in an Order Form, Customer shall reimburse Beamlink for out-of-pocket expenses incurred by Beamlink in connection with performing the Services ("Reimbursable Expenses").
7.4. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Beamlink's income.
7.5. Payment. Customer shall pay all Fees and Reimbursable Expenses 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by wire transfer or ACH bank transfer. Customer shall make payments to such account as Beamlink may specify in writing from time to time.
7.6. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Beamlink may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Beamlink for all costs incurred by Beamlink in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice thereof, Beamlink may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
7.7. No Deductions or Setoffs. All amounts payable to Beamlink under this Agreement shall be paid by Customer to Beamlink in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
8. Intellectual Property Rights.
8.1. Services and Beamlink Materials. All right, title and interest in and to the Services and Beamlink Materials, including all Intellectual Property Rights therein, are and will remain with Beamlink and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Beamlink Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and Beamlink Materials (including Third-Party Materials) are expressly reserved by Beamlink and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Beamlink an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
8.2. Customer Data. As between Customer and Beamlink, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.
8.3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Beamlink, its Subcontractors and the Beamlink Personnel as are necessary or useful to perform the Services; and (b) to Beamlink as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
9.1. Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party") Subject to Section 9.1, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: all Beamlink Materials are the Confidential Information of Beamlink and the terms and existence of this Agreement are the Confidential Information of Beamlink. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a Third-Party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.2. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
9.3. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
9.4. except as may be permitted by and subject to its compliance with Section 0, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.2; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.2;
9.5. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
9.6. ensure its Representatives' compliance with and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
9.2 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.1; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section9.2, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Term and Termination.
10.1. Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement's express provisions, will continue in effect until twenty four (24) months from such date (the "Initial Term"), except as set forth in an Order Form.
10.2. Renewal. This Agreement will automatically renew for successive 12 month terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term ("Renewal Term" and, collectively, together with the Initial Term, the "Term").
10.3. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Beamlink may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than sixty (60) days after Beamlink's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 6.3 (Prohibited Data) or Section 9 (Confidentiality).
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.4. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Beamlink shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) promptly return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Beamlink directly or indirectly controls, provided that, for clarity, Beamlink's obligations under this Section 10.4(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or Beamlink Materials and (i) promptly return to Beamlink, or at Beamlink's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Beamlink Materials or Beamlink's Confidential Information; and (ii) permanently erase all Beamlink Materials and Beamlink's Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Beamlink in a signed written instrument that it has complied with the requirements of this Section 10.4(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information; and (ii) Beamlink may retain Customer Data, in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Beamlink may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 10.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) Beamlink may disable all Customer and Authorized User access to the Hosted Services and Beamlink Materials;
(f) if Customer terminates this Agreement pursuant to Section 10.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination, provided, however, that no refunds for fees paid shall be due or payable by Beamlink;
(g) if Beamlink terminates this Agreement pursuant to Section 10.3(a) or Section 10.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Beamlink's invoice therefor.
10.5. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 9, Section 10.4, this Section 10.5, Section 11, Section 12, Section 13 and Section 15.
11. Representations and Warranties.
11.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
11.2. Additional Beamlink Representations, Warranties and Covenants. Beamlink represents, warrants and covenants to Customer that Beamlink will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
11.3. Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Beamlink that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Beamlink and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any Third-Party or violate any applicable Law.
11.4. Reserved.
11.5. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1. Customer Indemnification. Customer shall indemnify, defend and hold harmless Beamlink and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Beamlink Indemnitee") from and against any and all Losses incurred by such Beamlink Indemnitee in connection with any Action by a Third-Party (other than an Affiliate of a Beamlink Indemnitee) to the extent that such Losses arise out of or relate to any:
12.2. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.2 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12.3. Mitigation. If any of the Services or Beamlink Materials are, or in Beamlink's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Beamlink Materials is enjoined or threatened to be enjoined, Beamlink may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Beamlink Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Beamlink Materials, in whole or in part, to seek to make the Services and Beamlink Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Beamlink Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Beamlink Materials, and require Customer to immediately cease any use of the Services and Beamlink Materials or any specified part or feature thereof, provided that if such termination occurs prior to five (5) years after the Effective Date, subject to Customer's compliance with its post-termination obligations set forth in Section 10.4, Customer will be entitled to a refund of fees paid by Customer to Beamlink over the prior twelve (12) months.
THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
13.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER OVER THE PRIOR THREE (3) MONTHS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.3. Exceptions. The exclusions and limitations in Section 13.1 and Section 13.2 do not apply to Beamlink's liability for Beamlink's willful misconduct.
14.1. No Breach or Default. In no event will Beamlink be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond Beamlink's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
14.2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Beamlink shall give prompt written notice to Customer 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.
15.1. Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
15.2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall 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 shall have authority to contract for or bind the other party in any manner whatsoever.
15.3. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Beamlink may, without Customer's consent, include Customer's name and/or other indicia in its lists of Beamlink's current or former customers of Beamlink in promotional and marketing materials.
15.4. Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4):
If to Beamlink: | Beamlink, Inc. With a copy (which shall not constitute notice) to: Prospera Law, LLP |
If to Customer: | As set forth in an Order Form. |
Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
15.5. Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.7. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
15.8. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Beamlink's prior written consent, which consent Beamlink shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Beamlink's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15.9. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15.10.Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.11.Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.12.Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
15.13.Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.14.Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.3, Section 4.3 or Section 6.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, 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.
15.15.Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
15.16.Counterparts. This Agreement 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 this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
We are Beamlink, Inc., a Delaware corporation (“Beamlink,” “we,” “our”, “us”, or “the Company”), and we operate the Beamlink Solution (defined below), along with our related websites, hosted applications, mobile or other services, and any other software, websites, applications, APIs, webtools, third party tools, forums, venues, features, or functionalities provided on or in connection with the foregoing (collectively, the “Service”). These Terms and Conditions constitute a legally binding contract between you and Beamlink regarding your use of the Service. For the purposes of these Terms, “You” includes both you, the person or entity, using the Service, and You are referred to herein as “Customer” as well. PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THESE TERMS. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND BEAMLINK’S PROVISION OF THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BETWEEN BEAMLINK AND YOU TO BE BOUND BY THESE TERMS.
"Access Credentials" means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Hosted Services.
"Agreement" has the meaning set forth in the preamble.
"Authorized User" means each of the individuals authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.
"Confidential Information" has the meaning set forth in Section 9.1.
"Customer" has the meaning set forth in the preamble.
"Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.
"Customer Failure" has the meaning set forth in Section 4.2.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
"Documentation" means any manuals, instructions or other documents or materials that the Beamlink provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Beamlink Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
"Effective Date" has the meaning set forth in the preamble.
"Fees" has the meaning set forth in Section 7.1.
"Force Majeure Event" has the meaning set forth in Section 14.1.
"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 (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Beamlink Systems as intended by this Agreement. Harmful Code does not include any Beamlink Disabling Device.
"Hosted Services" has the meaning set forth in Section 1.1.
"Indemnitee" has the meaning set forth in Section 12.2.
"Indemnitor" has the meaning set forth in Section 12.2.
"Initial Term" has the meaning set forth in Section 10.1.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, 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 hereunder and the cost of pursuing any insurance providers.
“Order Form” means a separate writing or agreement between Beamlink and Customer that incorporates this Agreement by reference.
"Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's internal business operations.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
"Personal Information" means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located.
"Privacy and Security Policy" has the meaning set forth in Section 6.1.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content. "Processing" and "Processed" have correlative meanings.
"Beamlink" has the meaning set forth in the preamble.
"Beamlink Disabling Device" means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Beamlink or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Beamlink or its designee.
"Beamlink Indemnitee" has the meaning set forth in Section 12.1.
"Beamlink Materials" means the Service Software, Specifications, Documentation and Beamlink Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Beamlink or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Beamlink Systems. For the avoidance of doubt, Beamlink Materials include Resultant Data and any information, data or other content derived from Beamlink's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"Beamlink Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Beamlink or any Subcontractor.
"Beamlink Systems" means the information technology infrastructure used by or on behalf of Beamlink in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Beamlink or through the use of third-party services.
"Receiving Party" has the meaning set forth in Section 9.1.
"Reimbursable Expenses" has the meaning set forth in Section 7.3.
"Renewal Term" has the meaning set forth in Section 10.2.
"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
"Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
"Service Software" means the Beamlink software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, including without limitation the Beamlink Solution, that Beamlink provides remote access to and use of as part of the Services.
"Services" has the meaning set forth in the preamble, as may be modified by an Order Form.
“Beamlink Solution” means the service known as the Beamlink Solution, including without limitation: Bentocell cellular network base station devices, that provision a cellular LTE network to existing LTE devices, with associated accessories including a PoE injector, AC plug cord, pole mount adapter, and wall mount adapter, access to the “Maia” dashboard which provides controls to Bentocells, live data from Bentocells, and notifications and alerts to network administrators, and remote support from the Beamlink engineering team to establish the Bentocell cell sites and answer questions about the use of Maia software.
"Specifications" means the specifications for the Services set forth in the Documentation.
"Subcontractor" has the meaning set forth in Section 1.5.
"Support Schedule" has the meaning set forth in Section 4.5.
"Support Services" has the meaning set forth in Section 4.5.
"Term" has the meaning set forth in Section 10.1 and Section 10.2.
"Territory" means the United States.
"Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Beamlink.
1.1. Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, Beamlink shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Services in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users ("Hosted Services") in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:
(a) Regularly scheduled downtime;
(b) Service downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond Beamlink's reasonable control, including Customer's or any Authorized User's use of Third-Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and
(d) any suspension or termination of Customer's or any Authorized Users' access to or use of the Hosted Services as permitted by this Agreement.
1.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Beamlink has and will retain sole control over the operation, provision, maintenance and management of the Services and Beamlink Materials, including the: (i) Beamlink Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iii) performance of Support Services and Services maintenance, upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Beamlink Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Beamlink; (ii) results obtained from any use of the Services or Beamlink Materials; and (iii) conclusions, decisions or actions based on such use.
1.3. Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party's primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party's service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
1.4. Changes. Beamlink reserves the right, in its sole discretion, to make any changes to the Services and Beamlink Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Beamlink's services to its customers, (ii) the competitive strength of or market for Beamlink's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with the change procedure set forth in Schedule B. No requested changes will be effective unless and until memorialized in a written change order signed by both parties, except that Customer may increase or decrease the number of Authorized Users for any Services.
1.5. Subcontractors. Beamlink may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
1.6. Suspension or Termination of Services. Beamlink may, directly or indirectly, and by use of a Beamlink Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Beamlink Materials, without incurring any resulting obligation or liability, if: (a) Beamlink receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Beamlink to do so; or (b) Beamlink believes, in its good faith and reasonable sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement (including nonpayment), or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 1.6 does not limit any of Beamlink's other rights or remedies, whether at law, in equity or under this Agreement.
2.1. Applicability. The Order Form to which these terms are incorporated by reference is an offer by Beamlink for the sale of the goods specified on the face of the Order Form (the "Goods") to the Customer in accordance with and subject to these Terms.
2.2. Delivery Date. Beamlink shall deliver the Goods in the quantities and on the date(s) specified in the Order Form or as otherwise agreed in writing by the parties (the "Delivery Date").
2.3. Delivery Location. All Goods shall be delivered to Customer’s address specified in the Order Form, unless Buyer has specified a separate “Ship To” address (collectively, the "Delivery Location") during Customer’s normal business hours or as otherwise instructed by Customer or set forth in the Order Form.
2.4. Title and Risk of Loss. Title passes to Customer upon shipment of the Goods from Beamlink’s premises. Customer bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
2.5. Price. The price of the Goods is the price stated in the Order Form (the "Price"). If no price is included in the Order Form, the Price shall be the price set out in Beamlink’s published price list in force as of the date of the Order Form.
2.6. Return of Goods. Upon the termination of this Agreement, Customer agrees to promptly return the Goods to Beamlink, at Beamlink’s direction and expense. Upon such return, title to the Goods shall be conveyed to Beamlink.
3. Authorization and Customer Restrictions.
3.1. Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Beamlink hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Beamlink Materials as Beamlink may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, the conditions and limitations set forth in this Agreement and Beamlink's End User License Agreement, in such form as Beamlink may make available. This authorization is non-exclusive and non-transferable.
3.2. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Beamlink Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Beamlink Materials and the Third-Party Materials are and will remain with Beamlink and the respective rights holders in the Third-Party Materials.
3.3. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Beamlink Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Beamlink Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Beamlink Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Beamlink Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Beamlink Materials or access or use the Services or Beamlink Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Beamlink Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Beamlink Systems or Beamlink's provision of services to any Third-Party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Beamlink Materials, including any copy thereof;
(h) access or use the Services or Beamlink Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Third-Party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Beamlink customer), or that violates any applicable Law;
(i) access or use the Services or Beamlink Materials for purposes of competitive analysis of the Services or Beamlink Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Beamlink's detriment or commercial disadvantage;
(j) access or use the Services or Beamlink Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or Beamlink Materials beyond the scope of the authorization granted under Section 3.1.
4.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Beamlink Personnel with such access to Customer's premises and Customer Systems as is necessary for Beamlink to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Beamlink may reasonably request to enable Beamlink to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2. Effect of Customer Failure or Delay. Beamlink is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
4.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Beamlink Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Beamlink of any such actual or threatened activity.
4.4. Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Beamlink or any Subcontractor. In the event of a violation of this Section 4.4, Beamlink will be entitled to liquidated damages equal to the compensation paid by Beamlink to the applicable employee or contractor during the prior twelve (12) months.
4.5. Service Support. The Services include Beamlink’s standard customer support services ("Support Services") in accordance with the Beamlink service support schedule then in effect (the "Support Schedule"). Beamlink may amend the Support Schedule from time to time in its sole discretion.
5. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
6.1. Beamlink Systems and Security Obligations. Beamlink will employ security measures in accordance with applicable industry practice ("Privacy and Security Policy").
6.2. Data Breach Procedures. Beamlink maintains a data breach plan in accordance with the criteria set forth in Beamlink's Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a "Data Breach" (as defined in such plan).
6.3. Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, "Prohibited Data"). Customer shall not and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Beamlink Systems or any Beamlink Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
6.4. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Beamlink Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
6.5. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
7.1. Fees. Customer shall pay Beamlink the fees set forth in an Order Form (or, if there is no applicable Order Form, as per the fee schedule posted to the Beamlink website ("Fees") in accordance with this Section 7.
7.2. Fee Increases. Beamlink may increase Fees no more than once annually for any contract year of the Term, including any contract year of any Renewal Term, by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of that contract year/such Renewal Term.
7.3. Reimbursable Expenses. If so provided in an Order Form, Customer shall reimburse Beamlink for out-of-pocket expenses incurred by Beamlink in connection with performing the Services ("Reimbursable Expenses").
7.4. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Beamlink's income.
7.5. Payment. Customer shall pay all Fees and Reimbursable Expenses 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by wire transfer or ACH bank transfer. Customer shall make payments to such account as Beamlink may specify in writing from time to time.
7.6. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Beamlink may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Beamlink for all costs incurred by Beamlink in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice thereof, Beamlink may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
7.7. No Deductions or Setoffs. All amounts payable to Beamlink under this Agreement shall be paid by Customer to Beamlink in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
8. Intellectual Property Rights.
8.1. Services and Beamlink Materials. All right, title and interest in and to the Services and Beamlink Materials, including all Intellectual Property Rights therein, are and will remain with Beamlink and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Beamlink Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and Beamlink Materials (including Third-Party Materials) are expressly reserved by Beamlink and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Beamlink an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
8.2. Customer Data. As between Customer and Beamlink, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.
8.3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Beamlink, its Subcontractors and the Beamlink Personnel as are necessary or useful to perform the Services; and (b) to Beamlink as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
9.1. Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party") Subject to Section 9.1, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: all Beamlink Materials are the Confidential Information of Beamlink and the terms and existence of this Agreement are the Confidential Information of Beamlink. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a Third-Party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.2. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
9.3. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
9.4. except as may be permitted by and subject to its compliance with Section 0, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.2; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.2;
9.5. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
9.6. ensure its Representatives' compliance with and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
9.2 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.1; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section9.2, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Term and Termination.
10.1. Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement's express provisions, will continue in effect until twenty four (24) months from such date (the "Initial Term"), except as set forth in an Order Form.
10.2. Renewal. This Agreement will automatically renew for successive 12 month terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term ("Renewal Term" and, collectively, together with the Initial Term, the "Term").
10.3. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Beamlink may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than sixty (60) days after Beamlink's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 6.3 (Prohibited Data) or Section 9 (Confidentiality).
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.4. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Beamlink shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) promptly return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Beamlink directly or indirectly controls, provided that, for clarity, Beamlink's obligations under this Section 10.4(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or Beamlink Materials and (i) promptly return to Beamlink, or at Beamlink's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Beamlink Materials or Beamlink's Confidential Information; and (ii) permanently erase all Beamlink Materials and Beamlink's Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Beamlink in a signed written instrument that it has complied with the requirements of this Section 10.4(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information; and (ii) Beamlink may retain Customer Data, in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Beamlink may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 10.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) Beamlink may disable all Customer and Authorized User access to the Hosted Services and Beamlink Materials;
(f) if Customer terminates this Agreement pursuant to Section 10.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination, provided, however, that no refunds for fees paid shall be due or payable by Beamlink;
(g) if Beamlink terminates this Agreement pursuant to Section 10.3(a) or Section 10.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Beamlink's invoice therefor.
10.5. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 9, Section 10.4, this Section 10.5, Section 11, Section 12, Section 13 and Section 15.
11. Representations and Warranties.
11.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
11.2. Additional Beamlink Representations, Warranties and Covenants. Beamlink represents, warrants and covenants to Customer that Beamlink will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
11.3. Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Beamlink that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Beamlink and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any Third-Party or violate any applicable Law.
11.4. Reserved.
11.5. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1. Customer Indemnification. Customer shall indemnify, defend and hold harmless Beamlink and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Beamlink Indemnitee") from and against any and all Losses incurred by such Beamlink Indemnitee in connection with any Action by a Third-Party (other than an Affiliate of a Beamlink Indemnitee) to the extent that such Losses arise out of or relate to any:
12.2. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.2 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12.3. Mitigation. If any of the Services or Beamlink Materials are, or in Beamlink's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Beamlink Materials is enjoined or threatened to be enjoined, Beamlink may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Beamlink Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Beamlink Materials, in whole or in part, to seek to make the Services and Beamlink Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Beamlink Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Beamlink Materials, and require Customer to immediately cease any use of the Services and Beamlink Materials or any specified part or feature thereof, provided that if such termination occurs prior to five (5) years after the Effective Date, subject to Customer's compliance with its post-termination obligations set forth in Section 10.4, Customer will be entitled to a refund of fees paid by Customer to Beamlink over the prior twelve (12) months.
THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
13.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER OVER THE PRIOR THREE (3) MONTHS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.3. Exceptions. The exclusions and limitations in Section 13.1 and Section 13.2 do not apply to Beamlink's liability for Beamlink's willful misconduct.
14.1. No Breach or Default. In no event will Beamlink be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond Beamlink's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
14.2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Beamlink shall give prompt written notice to Customer 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.
15.1. Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
15.2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall 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 shall have authority to contract for or bind the other party in any manner whatsoever.
15.3. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Beamlink may, without Customer's consent, include Customer's name and/or other indicia in its lists of Beamlink's current or former customers of Beamlink in promotional and marketing materials.
15.4. Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4):
If to Beamlink: | Beamlink, Inc. With a copy (which shall not constitute notice) to: Prospera Law, LLP |
If to Customer: | As set forth in an Order Form. |
Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
15.5. Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.7. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
15.8. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Beamlink's prior written consent, which consent Beamlink shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Beamlink's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15.9. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15.10.Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.11.Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.12.Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
15.13.Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.14.Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.3, Section 4.3 or Section 6.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, 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.
15.15.Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
15.16.Counterparts. This Agreement 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 this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
We are Beamlink, Inc., a Delaware corporation (“Beamlink,” “we,” “our”, “us”, or “the Company”), and we operate the Beamlink Solution (defined below), along with our related websites, hosted applications, mobile or other services, and any other software, websites, applications, APIs, webtools, third party tools, forums, venues, features, or functionalities provided on or in connection with the foregoing (collectively, the “Service”). These Terms and Conditions constitute a legally binding contract between you and Beamlink regarding your use of the Service. For the purposes of these Terms, “You” includes both you, the person or entity, using the Service, and You are referred to herein as “Customer” as well. PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THESE TERMS. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND BEAMLINK’S PROVISION OF THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BETWEEN BEAMLINK AND YOU TO BE BOUND BY THESE TERMS.
"Access Credentials" means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Hosted Services.
"Agreement" has the meaning set forth in the preamble.
"Authorized User" means each of the individuals authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.
"Confidential Information" has the meaning set forth in Section 9.1.
"Customer" has the meaning set forth in the preamble.
"Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.
"Customer Failure" has the meaning set forth in Section 4.2.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
"Documentation" means any manuals, instructions or other documents or materials that the Beamlink provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Beamlink Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
"Effective Date" has the meaning set forth in the preamble.
"Fees" has the meaning set forth in Section 7.1.
"Force Majeure Event" has the meaning set forth in Section 14.1.
"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 (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Beamlink Systems as intended by this Agreement. Harmful Code does not include any Beamlink Disabling Device.
"Hosted Services" has the meaning set forth in Section 1.1.
"Indemnitee" has the meaning set forth in Section 12.2.
"Indemnitor" has the meaning set forth in Section 12.2.
"Initial Term" has the meaning set forth in Section 10.1.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, 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 hereunder and the cost of pursuing any insurance providers.
“Order Form” means a separate writing or agreement between Beamlink and Customer that incorporates this Agreement by reference.
"Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's internal business operations.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
"Personal Information" means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located.
"Privacy and Security Policy" has the meaning set forth in Section 6.1.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content. "Processing" and "Processed" have correlative meanings.
"Beamlink" has the meaning set forth in the preamble.
"Beamlink Disabling Device" means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Beamlink or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Beamlink or its designee.
"Beamlink Indemnitee" has the meaning set forth in Section 12.1.
"Beamlink Materials" means the Service Software, Specifications, Documentation and Beamlink Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Beamlink or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Beamlink Systems. For the avoidance of doubt, Beamlink Materials include Resultant Data and any information, data or other content derived from Beamlink's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"Beamlink Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Beamlink or any Subcontractor.
"Beamlink Systems" means the information technology infrastructure used by or on behalf of Beamlink in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Beamlink or through the use of third-party services.
"Receiving Party" has the meaning set forth in Section 9.1.
"Reimbursable Expenses" has the meaning set forth in Section 7.3.
"Renewal Term" has the meaning set forth in Section 10.2.
"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
"Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
"Service Software" means the Beamlink software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, including without limitation the Beamlink Solution, that Beamlink provides remote access to and use of as part of the Services.
"Services" has the meaning set forth in the preamble, as may be modified by an Order Form.
“Beamlink Solution” means the service known as the Beamlink Solution, including without limitation: Bentocell cellular network base station devices, that provision a cellular LTE network to existing LTE devices, with associated accessories including a PoE injector, AC plug cord, pole mount adapter, and wall mount adapter, access to the “Maia” dashboard which provides controls to Bentocells, live data from Bentocells, and notifications and alerts to network administrators, and remote support from the Beamlink engineering team to establish the Bentocell cell sites and answer questions about the use of Maia software.
"Specifications" means the specifications for the Services set forth in the Documentation.
"Subcontractor" has the meaning set forth in Section 1.5.
"Support Schedule" has the meaning set forth in Section 4.5.
"Support Services" has the meaning set forth in Section 4.5.
"Term" has the meaning set forth in Section 10.1 and Section 10.2.
"Territory" means the United States.
"Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Beamlink.
1.1. Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, Beamlink shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Services in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users ("Hosted Services") in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:
(a) Regularly scheduled downtime;
(b) Service downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond Beamlink's reasonable control, including Customer's or any Authorized User's use of Third-Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and
(d) any suspension or termination of Customer's or any Authorized Users' access to or use of the Hosted Services as permitted by this Agreement.
1.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Beamlink has and will retain sole control over the operation, provision, maintenance and management of the Services and Beamlink Materials, including the: (i) Beamlink Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iii) performance of Support Services and Services maintenance, upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Beamlink Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Beamlink; (ii) results obtained from any use of the Services or Beamlink Materials; and (iii) conclusions, decisions or actions based on such use.
1.3. Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party's primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party's service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
1.4. Changes. Beamlink reserves the right, in its sole discretion, to make any changes to the Services and Beamlink Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Beamlink's services to its customers, (ii) the competitive strength of or market for Beamlink's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with the change procedure set forth in Schedule B. No requested changes will be effective unless and until memorialized in a written change order signed by both parties, except that Customer may increase or decrease the number of Authorized Users for any Services.
1.5. Subcontractors. Beamlink may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
1.6. Suspension or Termination of Services. Beamlink may, directly or indirectly, and by use of a Beamlink Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Beamlink Materials, without incurring any resulting obligation or liability, if: (a) Beamlink receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Beamlink to do so; or (b) Beamlink believes, in its good faith and reasonable sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement (including nonpayment), or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 1.6 does not limit any of Beamlink's other rights or remedies, whether at law, in equity or under this Agreement.
2.1. Applicability. The Order Form to which these terms are incorporated by reference is an offer by Beamlink for the sale of the goods specified on the face of the Order Form (the "Goods") to the Customer in accordance with and subject to these Terms.
2.2. Delivery Date. Beamlink shall deliver the Goods in the quantities and on the date(s) specified in the Order Form or as otherwise agreed in writing by the parties (the "Delivery Date").
2.3. Delivery Location. All Goods shall be delivered to Customer’s address specified in the Order Form, unless Buyer has specified a separate “Ship To” address (collectively, the "Delivery Location") during Customer’s normal business hours or as otherwise instructed by Customer or set forth in the Order Form.
2.4. Title and Risk of Loss. Title passes to Customer upon shipment of the Goods from Beamlink’s premises. Customer bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
2.5. Price. The price of the Goods is the price stated in the Order Form (the "Price"). If no price is included in the Order Form, the Price shall be the price set out in Beamlink’s published price list in force as of the date of the Order Form.
2.6. Return of Goods. Upon the termination of this Agreement, Customer agrees to promptly return the Goods to Beamlink, at Beamlink’s direction and expense. Upon such return, title to the Goods shall be conveyed to Beamlink.
3. Authorization and Customer Restrictions.
3.1. Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Beamlink hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Beamlink Materials as Beamlink may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, the conditions and limitations set forth in this Agreement and Beamlink's End User License Agreement, in such form as Beamlink may make available. This authorization is non-exclusive and non-transferable.
3.2. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Beamlink Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Beamlink Materials and the Third-Party Materials are and will remain with Beamlink and the respective rights holders in the Third-Party Materials.
3.3. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Beamlink Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Beamlink Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Beamlink Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Beamlink Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Beamlink Materials or access or use the Services or Beamlink Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Beamlink Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Beamlink Systems or Beamlink's provision of services to any Third-Party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Beamlink Materials, including any copy thereof;
(h) access or use the Services or Beamlink Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Third-Party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Beamlink customer), or that violates any applicable Law;
(i) access or use the Services or Beamlink Materials for purposes of competitive analysis of the Services or Beamlink Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Beamlink's detriment or commercial disadvantage;
(j) access or use the Services or Beamlink Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or Beamlink Materials beyond the scope of the authorization granted under Section 3.1.
4.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Beamlink Personnel with such access to Customer's premises and Customer Systems as is necessary for Beamlink to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Beamlink may reasonably request to enable Beamlink to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2. Effect of Customer Failure or Delay. Beamlink is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
4.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Beamlink Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Beamlink of any such actual or threatened activity.
4.4. Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Beamlink or any Subcontractor. In the event of a violation of this Section 4.4, Beamlink will be entitled to liquidated damages equal to the compensation paid by Beamlink to the applicable employee or contractor during the prior twelve (12) months.
4.5. Service Support. The Services include Beamlink’s standard customer support services ("Support Services") in accordance with the Beamlink service support schedule then in effect (the "Support Schedule"). Beamlink may amend the Support Schedule from time to time in its sole discretion.
5. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
6.1. Beamlink Systems and Security Obligations. Beamlink will employ security measures in accordance with applicable industry practice ("Privacy and Security Policy").
6.2. Data Breach Procedures. Beamlink maintains a data breach plan in accordance with the criteria set forth in Beamlink's Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a "Data Breach" (as defined in such plan).
6.3. Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, "Prohibited Data"). Customer shall not and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Beamlink Systems or any Beamlink Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
6.4. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Beamlink Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
6.5. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
7.1. Fees. Customer shall pay Beamlink the fees set forth in an Order Form (or, if there is no applicable Order Form, as per the fee schedule posted to the Beamlink website ("Fees") in accordance with this Section 7.
7.2. Fee Increases. Beamlink may increase Fees no more than once annually for any contract year of the Term, including any contract year of any Renewal Term, by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of that contract year/such Renewal Term.
7.3. Reimbursable Expenses. If so provided in an Order Form, Customer shall reimburse Beamlink for out-of-pocket expenses incurred by Beamlink in connection with performing the Services ("Reimbursable Expenses").
7.4. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Beamlink's income.
7.5. Payment. Customer shall pay all Fees and Reimbursable Expenses 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by wire transfer or ACH bank transfer. Customer shall make payments to such account as Beamlink may specify in writing from time to time.
7.6. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Beamlink may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Beamlink for all costs incurred by Beamlink in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice thereof, Beamlink may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
7.7. No Deductions or Setoffs. All amounts payable to Beamlink under this Agreement shall be paid by Customer to Beamlink in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
8. Intellectual Property Rights.
8.1. Services and Beamlink Materials. All right, title and interest in and to the Services and Beamlink Materials, including all Intellectual Property Rights therein, are and will remain with Beamlink and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Beamlink Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and Beamlink Materials (including Third-Party Materials) are expressly reserved by Beamlink and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Beamlink an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
8.2. Customer Data. As between Customer and Beamlink, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.
8.3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Beamlink, its Subcontractors and the Beamlink Personnel as are necessary or useful to perform the Services; and (b) to Beamlink as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
9.1. Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party") Subject to Section 9.1, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: all Beamlink Materials are the Confidential Information of Beamlink and the terms and existence of this Agreement are the Confidential Information of Beamlink. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a Third-Party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.2. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
9.3. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
9.4. except as may be permitted by and subject to its compliance with Section 0, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.2; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.2;
9.5. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
9.6. ensure its Representatives' compliance with and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
9.2 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.1; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section9.2, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Term and Termination.
10.1. Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement's express provisions, will continue in effect until twenty four (24) months from such date (the "Initial Term"), except as set forth in an Order Form.
10.2. Renewal. This Agreement will automatically renew for successive 12 month terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term ("Renewal Term" and, collectively, together with the Initial Term, the "Term").
10.3. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Beamlink may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than sixty (60) days after Beamlink's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 6.3 (Prohibited Data) or Section 9 (Confidentiality).
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.4. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Beamlink shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) promptly return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Beamlink directly or indirectly controls, provided that, for clarity, Beamlink's obligations under this Section 10.4(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or Beamlink Materials and (i) promptly return to Beamlink, or at Beamlink's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Beamlink Materials or Beamlink's Confidential Information; and (ii) permanently erase all Beamlink Materials and Beamlink's Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Beamlink in a signed written instrument that it has complied with the requirements of this Section 10.4(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information; and (ii) Beamlink may retain Customer Data, in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Beamlink may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 10.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) Beamlink may disable all Customer and Authorized User access to the Hosted Services and Beamlink Materials;
(f) if Customer terminates this Agreement pursuant to Section 10.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination, provided, however, that no refunds for fees paid shall be due or payable by Beamlink;
(g) if Beamlink terminates this Agreement pursuant to Section 10.3(a) or Section 10.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Beamlink's invoice therefor.
10.5. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 9, Section 10.4, this Section 10.5, Section 11, Section 12, Section 13 and Section 15.
11. Representations and Warranties.
11.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
11.2. Additional Beamlink Representations, Warranties and Covenants. Beamlink represents, warrants and covenants to Customer that Beamlink will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
11.3. Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Beamlink that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Beamlink and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any Third-Party or violate any applicable Law.
11.4. Reserved.
11.5. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1. Customer Indemnification. Customer shall indemnify, defend and hold harmless Beamlink and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Beamlink Indemnitee") from and against any and all Losses incurred by such Beamlink Indemnitee in connection with any Action by a Third-Party (other than an Affiliate of a Beamlink Indemnitee) to the extent that such Losses arise out of or relate to any:
12.2. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.2 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12.3. Mitigation. If any of the Services or Beamlink Materials are, or in Beamlink's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Beamlink Materials is enjoined or threatened to be enjoined, Beamlink may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Beamlink Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Beamlink Materials, in whole or in part, to seek to make the Services and Beamlink Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Beamlink Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Beamlink Materials, and require Customer to immediately cease any use of the Services and Beamlink Materials or any specified part or feature thereof, provided that if such termination occurs prior to five (5) years after the Effective Date, subject to Customer's compliance with its post-termination obligations set forth in Section 10.4, Customer will be entitled to a refund of fees paid by Customer to Beamlink over the prior twelve (12) months.
THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
13.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER OVER THE PRIOR THREE (3) MONTHS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.3. Exceptions. The exclusions and limitations in Section 13.1 and Section 13.2 do not apply to Beamlink's liability for Beamlink's willful misconduct.
14.1. No Breach or Default. In no event will Beamlink be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond Beamlink's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
14.2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Beamlink shall give prompt written notice to Customer 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.
15.1. Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
15.2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall 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 shall have authority to contract for or bind the other party in any manner whatsoever.
15.3. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Beamlink may, without Customer's consent, include Customer's name and/or other indicia in its lists of Beamlink's current or former customers of Beamlink in promotional and marketing materials.
15.4. Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4):
If to Beamlink: | Beamlink, Inc. With a copy (which shall not constitute notice) to: Prospera Law, LLP |
If to Customer: | As set forth in an Order Form. |
Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
15.5. Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.7. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
15.8. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Beamlink's prior written consent, which consent Beamlink shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Beamlink's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15.9. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15.10.Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.11.Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.12.Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
15.13.Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.14.Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.3, Section 4.3 or Section 6.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, 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.
15.15.Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
15.16.Counterparts. This Agreement 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 this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
© Beamlink, Inc. 2025
Designed and Built in California
© Beamlink, Inc. 2025
Designed and Built in California
© Beamlink, Inc. 2025
Designed and Built in California
© Beamlink, Inc. 2025
Designed and Built in California