REDBEAM

CLIENT TERMS OF SERVICE – HOSTED SOFTWARE SOLUTION

IMPORTANT – YOUR ACCEPTANCE OF THESE CLIENT TERMS OF SERVICE (THE “TERMS OF SERVICE”) CREATES A LEGAL AGREEMENT BETWEEN THE USER AND HIS OR HER EMPLOYER LISTED ON THE APPLICABLE ORDER (COLLECTIVELY, “CLIENT”) AND STRATEGIC SYSTEMS & TECHNOLOGY CORPORATION D/B/A REDBEAM (“REDBEAM”). IT IS ESSENTIAL THAT YOU READ THESE TERMS OF SERVICE CAREFULLY BEFORE CLICKING ON THE “I AGREE” OR “I DISAGREE” BUTTON BELOW. BY CLICKING ON THE “I AGREE” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ THE AGREEMENT, THAT YOU UNDERSTAND IT, THAT YOU HAVE THE AUTHORITY TO BIND THE CLIENT TO THE AGREEMENT AND THAT THE CLIENT AGREES TO BE BOUND BY ITS TERMS. CLICKING "I AGREE" WILL BE DEEMED TO BE YOUR SECURE ELECTRONIC SIGNATURE UNDER THE GEORGIA ELECTRONIC RECORDS AND SIGNATURE ACT AND ANY OTHER APPLICABLE FEDERAL, STATE OR LOCAL LAW, RULE, REGULATION OR ORDINANCE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “I DISAGREE” BUTTON AT THE BOTTOM OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU MISTAKENLY CLICK THE “I AGREE” BUTTON, PROMPTLY NOTIFY REDBEAM AT 678-373-0390 WITHIN TWO (2) DAYS. FOR YOUR CONVENIENCE AND YOUR RECORDS, REDBEAM SUGGESTS THAT YOU PRINT AND RETAIN OR SAVE A COPY OF THESE TERMS OF SERVICE.

1. Definitions.
As used in this Agreement, the following capitalized terms have the meanings ascribed to them in this Section 1.

1. “Agreement” means these Terms of Service, together with the applicable Order (if any).
   
   
2. “Client Data” means (i) information or data created or otherwise owned by Client, or licensed by Client from third parties used in conjunction with the Software or Hosted Solution; or (ii) information or data output generated by the Software or Hosted Solution that is based on information or data supplied by the Client and is specific to the Client.
   
   
3. “Confidential Information” means any and all proprietary and confidential data or information of RedBeam or any of its affiliates that is of tangible or intangible value to RedBeam or its affiliates and is not public information or is not generally known or available to RedBeam’s competitors but is known only to RedBeam and its employees, independent contractors or agents to whom it must be confided in order to apply it to the uses intended, but does not include data or information that is available to the public or in the public domain at the time of such disclosure without breach of this Agreement or other applicable law or that has been independently developed and disclosed by others not subject to an obligation of confidentiality.
   
   
4. “End Users” means the employees of Client who are permitted to access and use the Hosted Solution as described in Section 2 of these Terms of Service. The number of End Users authorized under this Agreement may be limited as set forth in the Order.
   
   
5. “Error” means a substantial reproducible failure of the Software to conform to the specifications set forth in the Documentation.
   
   
6. “Device Application” means (if applicable to the Hosted Solution provided to Client hereunder) the stand-alone Software application provided to Client in connection with its subscription to the Hosted Solution for installation on Devices that enables the Devices to transmit or upload Client Data from such Devices to the Hosted Solution.
   
   
7. “Devices” means (if applicable to the Hosted Solution provided to Client hereunder) the remote or hand-held equipment owned or otherwise under the control of Client that interfaces with the Hosted Solution.
   
   
8. “Documentation” means the user documentation and any other operating, training and reference manuals (including, without limitation, any modifications or derivative works thereof) supplied to Client relating to the use of the Hosted Solution made available to Client under this Agreement.
   
   
9. “Hosted Solution” means RedBeam’s hosted tracking Software services, together with the training and support with respect to the Hosted Solution as described on the applicable Order.
   
   
10. “Output” means the output created by the Hosted Solution, namely tables, charts and reports generated by the Hosted Solution at the direction of Client.
    
    
11. “Order” means the ordering document relating to the provision of the Software as a Hosted Solution accepted as described herein, including, without limitation, those identified as “Statements of Work,” “change orders”, “proposals” or “purchase orders”. All Orders will be deemed “accepted” for purposes of this Agreement and incorporated herein when (i) signed by both RedBeam and Client (or Client’s reseller) or (ii) issued by RedBeam to Client (or Client’s reseller) and acknowledged and accepted in writing by Client or Client’s reseller (including, without limitation, by issuance of a corresponding purchase order referencing RedBeam’s Order). Client acknowledges that, if it has purchased access to the Hosted Solution from an authorized reseller of RedBeam, the Order governing Client’s subscription under this Agreement is by and between RedBeam and such reseller, and Client is not a party thereto and has no rights thereunder, other than the specific rights granted to Client under this Agreement arising pursuant to such Order.
    
    
12. “Software” means any and all software (in source and object forms) and related documentation owned or licensed by RedBeam and provided to or used by Client under this Agreement as a component of the Hosted Solution, as more specifically identified on the Order.
    
    
13. “RedBeam Technology” means RedBeam’s proprietary technology, including the Software, software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secrets and any related intellectual property rights throughout the world (whether owned by RedBeam or licensed to RedBeam from a third party), including, without limitation, any derivatives, improvements, enhancements or extensions of the foregoing conceived, reduced to practice, or developed during the term of this Agreement by either party.

 

2. Provision of Hosted Solution; License.

a. Subject to the terms and conditions of this Agreement (including, without limitation, the restrictions set forth in Section 1(b) of these Terms of Service), by acceptance of an Order for the Hosted Solution, RedBeam:

(i) agrees to provide Client the specific Hosted Solution set forth on such Order during the Term of such Order;

(ii) grants to Client, during the Term of such Order, a limited, nontransferable, nonexclusive license for the End Users to (x) access over the Internet and use the Hosted Solution ordered by Client (including the Output), and the Software used by RedBeam to provide the Hosted Solution solely to support Client's normal course of business;

(iii) if applicable to the Software and Hosted Solution set forth on the Order, grants to Client a limited, nontransferable, nonexclusive license to (x) install the Device Application only on the number of Devices set forth in an Order relating to the Hosted Solution; (y) use, and allow the End Users to use, the Device Application only with the number of Devices set forth in the Order and in connection with the Hosted Solution; and

(iv) grants to Client a limited, nontransferable, nonexclusive license to use the Documentation as reasonably necessary for Client’s internal use related to the licenses granted under this Section 1(a).

b. Client and its End Users will not, directly or indirectly, (i) license, sell, redistribute, lease or otherwise transfer or assign the Hosted Solution or the Software; (ii) alter or permit a third party to alter any part of the Hosted Solution or any Software; (iii) permit any third party, other than an Authorized User with appropriate access authority, to access or use the Hosted Solution or any Software; (iv) use or permit the use of the Hosted Solution or any Software in the operation of a service bureau or for any unlawful purpose; (v) reverse engineer or otherwise attempt to derive source code or other trade secrets from the Hosted Solution; (vi) use the Hosted Solution or any Software in a way that could harm the Hosted Solution or RedBeam’s network or impair a third party’s use of the Hosted Solution (including by transmitting by or uploading to the Hosted Solution any viruses, worms, Trojan horses or other malicious code); or (vii) use the Hosted Solution or any Software to try to gain unauthorized access to any service, data, account or network by any means. Client will ensure that the End Users adhere to the terms of this Agreement and will be liable for any Authorized User’s breach of the Agreement. RedBeam reserves the right to require End Users agree to terms of use or service (“End User Terms”) before such End Users access or use the Hosted Solution.

d. From time to time, RedBeam may make enhancements or customizations to the Hosted Solution or the Device Application. Any intellectual property created in the course of implementing and providing the Hosted Solution or Device Application, whether by RedBeam alone or jointly with Client, shall be and remain the exclusive property of RedBeam, and Client assigns any of its rights, interest or title in or to the same to RedBeam.

e. RedBeam may from time to time update the functionality, features, user interface, user documentation, training and educational information, and any other aspects of or relating to the Hosted Solution in its sole discretion, provided that such changes do not materially adversely affect the functionality of the Hosted Solution. RedBeam does not make any guarantee as or warranty as to the quality of transmission of data over telephone, digital subscriber lines or any other method of Internet delivery, including, without limitation, server downtimes or other network related problems except as described in Section 5, below. RedBeam may perform scheduled or emergency maintenance (including temporary suspension of the Hosted Solution as necessary) to maintain or modify the Hosted Solution, and RedBeam will not be responsible or liable for service suspensions for the purposes of scheduled or emergency maintenance.

3. Ancillary Services.

a. RedBeam will use commercially reasonable efforts to complete all implementation and training services related to the Hosted Solution or Device Software that are ordered by Client (or Client’s reseller, on behalf of Client) consistent with an implementation schedule to be agreed to by Client and RedBeam. Client acknowledges that the Hosted Solution or Device Application may not be available for use (in whole or in part) by Client or its End Users until such implementation has been completed.

b. As part of Client’s subscription to the Hosted Solution, RedBeam will provide Client and its End Users with reasonable technical assistance by phone and email or other Internet-based communication with respect to the access and use of the Hosted Solution and the identification and reporting of problems or errors with the Hosted Solution. RedBeam will use reasonable commercial efforts to correct all Errors in the Hosted Solution of which RedBeam receives notice from Client.

c. If applicable to the Hosted Solution and indicated on an Order, RedBeam will also provide Client and its End Users with reasonable technical assistance by phone and email or other Internet-based communication with respect to the access and use of the Device Application and the identification and reporting of problems or errors with the Device Application. Such support services will include: (i) RedBeam using reasonable commercial efforts to correct all errors in the Device Application of which RedBeam receives notice from Client (and any error correction will be considered part of the Device Application upon delivery to Client); and (ii) RedBeam making available to Client from time to time each release of the Device Application that RedBeam makes generally available and that is intended to replace a prior release.

d. Client will designate in writing to RedBeam no more than five (5) technical contacts to request and receive support services from RedBeam ("Support Contacts"). Client may designate replacement Support Contacts from time to time by notifying RedBeam of such changes in writing. Client will make all support requests via email at support@redbeam.com or telephone at 678-373-0390, or at such other email addresses or telephone numbers that RedBeam may designate for such purpose from time to time upon thirty (30) days’ prior written notice to Client. RedBeam may also provide support and technical assistance or reference guides to End Users online, via the Hosted Solution or at such other locations as RedBeam may elect, in its sole discretion.

e. RedBeam will not be responsible under this Section 2 for (i) correcting errors resulting from misuse, negligence, revision, modification, or improper use by Client or any other person or entity of the Hosted Solution or Device Application, as applicable or any portion thereof; (ii) errors resulting from any software, hardware or equipment other than the Hosted Solution or, if Client has purchased support services with respect thereto, the Device Application; (iii) unless Client has purchased support services with respect to the Device Application, correcting errors resulting from the Device Application; (iv) with respect to errors in the Device Application, failure by Client to install mandatory error corrections provided to Client by RedBeam from time to time; or (v) any errors resulting from Client’s failure to comply with the System Requirements or other written specifications set forth in any applicable Documentation.

4. Fees and Payment Terms.

1. The terms of this Section 4(a) apply only to the extent Client has purchased access to the Hosted Solution directly from RedBeam, Client agrees to pay to RedBeam all fees due for the Hosted Solution according to the prices and terms listed in the Order. Except as otherwise set forth in an Order, the prices listed in an Order will remain in effect during the Initial Term indicated in such Order. RedBeam reserves the right to change, upon at least thirty (30) days prior written notice, any fees it charges for any Service during a Renewal Term. All fees and charges are due within thirty (30) days after the date of invoice therefor. Any invoiced charges not received when due will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.

2. The terms of this Section 4(b) apply only to the extent Client has purchased access to the Hosted Solution by placing an order for the same with an authorized reseller of RedBeam. Client acknowledges that RedBeam’s obligations to provide the access to the Hosted Solution under this Agreement are expressly conditioned on RedBeam’s receipt of all fees due from Client’s reseller with respect thereto, according to the payment terms agreed to by RedBeam and such reseller in the Order applicable to Client’s subscription.
   
   
3. In addition, and without prejudice, to RedBeam’s other rights and remedies under this Agreement, at law or equity, if RedBeam has not received the fees due with respect to the Hosted Solution as described in Sections 4(a) or (b), as applicable, then RedBeam may, in its sole discretion, do any one or more of the following: (i) terminate this Agreement pursuant to its terms; (ii) in whole or in part suspend providing Services (or any of them) to Client until payment in full has been made to RedBeam or (iii) require other assurances to secure Client's (or its reseller’s, as applicable) payment obligations hereunder.
   
   
4. All fees charged by RedBeam with respect to the Services are exclusive of taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction, all of which the Client (or Client’s reseller, as applicable) will be responsible for, except for taxes based on RedBeam’s net income.
   
   

5. Term; Termination.

1. The initial term of This Agreement (the “Initial Term”), begins upon the effective date of the Order and will continue for the period set forth in the Order. If no period is specified in the Order, the Initial Service Term will be a period of one (1) year commencing on the effective date of the Order. The term of an Order may be renewed by for additional successive periods equal to the term specified in the Order (or, if none is specified, for successive one (1) year periods) (each, a "Renewal Term"), as follows: (i) at least thirty (30) days prior to the end of the expiring term, RedBeam may provide Client (or Client’s reseller, as applicable) with an invoice setting forth the proposed subsequent Renewal Term; and (ii) payment of such invoice by the specified renewal date or continued material use of the Hosted Solution after such date will constitute acceptance of the Renewal Term by Client (or Client’s reseller). If Client (or Client’s reseller) does not pay such invoice by the renewal date, then RedBeam may, in addition to any other remedy and in its sole discretion at any time after that renewal date, terminate the applicable Order effective as of the end of the expiring term. The Initial Term and all Renewal Terms are individually and collective referred to the "Service Term."
   
   
2. Either party may terminate this Agreement immediately upon written notice to the other party (or RedBeam may, in its sole discretion, suspend the provision of the Hosted Solution) if: (i) the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of the same (other than any failure to pay any amounts when due, which must be cured within ten (10) days after written notice of the same); (ii) the other party becomes the subject of any involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) commits a material breach of this Agreement that is incapable of remedy, including, without limitation Client’s breach of Section 10.
   
   
3. RedBeam may cancel or suspend the provision of the Hosted Solution, or portion thereof, upon reasonable notice to Client if the provision of the Hosted Solution, or any portion thereof, is determined to be a violation of any applicable law or regulation or of any RedBeam license in any jurisdiction, or is no longer permitted under any of the same. Further, RedBeam's ability to provide the Hosted Solution may be subject to various licenses or other agreements (each a "Service Agreement") between RedBeam and its third party suppliers. In the event of the expiration or termination of any applicable Service Agreement, RedBeam will use commercially reasonable efforts to obtain alternative suppliers in order to avoid suspension or disruption in the Hosted Solution. If RedBeam is unable, for any reason, to obtain such an alternative or replacement Service Agreement, or if RedBeam reasonably determines that the provision of any Hosted Solution would be a violation of any applicable law or regulation or any RedBeam license in any jurisdiction or is no longer permitted under any of the same, RedBeam may terminate all affected Orders upon written notice to Client without any liability to Client. RedBeam will give Client at least sixty (60) days prior written notice to Client (or, if it is not possible to give 60 days’ notice, as much notice as possible under the circumstances) of the termination or expiration of a Service Agreement governing RedBeam's ability to deliver the Hosted Solution, or any other condition arising under such Service Agreement that is likely to adversely affect Client's use of the Hosted Solution or RedBeam's ability to provide the Hosted Solution. If RedBeam terminates any Order pursuant to this Section 5(c), and Client has prepaid for any Hosted Solution under that Order, then RedBeam will, after applying such prepayment to all fees and charges due under the Agreement, return the unused portion of such prepayment to Client within forty-five (45) days after the date of termination.
   
   
4. Upon the effective date of termination of this Agreement: (i) RedBeam will immediately cease providing the Hosted Solution, and Client will immediately cease using the Hosted Solution; (ii) any and all payment obligations of Client (if any) under this Agreement for periods through the date of termination will be due within five (5) days after the effective date of termination of such Order; and (iii) within thirty (30) days, Client will return or certify the destruction of all Confidential Information in its possession and will not make or retain any copies of such Confidential Information. The definitions herein and the respective rights and obligations of the parties under Sections 5(d), 7(b) and 9-11 will survive any termination or expiration of this Agreement.

 

6. Client Responsibilities.

1. RedBeam may establish, from time to time, minimum computer system, browser and equipment (including, without limitation, mobile reader) requirements set forth at www.redbeam.com or such other URL as specified by RedBeam from time to time (the “System Requirements”), for the equipment from which and with which the Hosted Solution should be accessed or on which the Device Application may be installed so that all licensed functionalities are operational. Client may be required to purchase software, hardware or services (such as Internet access services and mobile equipment) in order to utilize the Hosted Solution or satisfy the System Requirements, as may be amended by RedBeam from time to time. Client shall be solely responsible for all such software, hardware and services.
   
   
2. Client is responsible for maintaining the confidentiality of all usernames, passwords and related information (collectively, "Access Credentials") assigned to or connected with its subscription. Client will not permit the sharing of Access Credentials and related information by its End Users. If an Authorized User leaves the employ of Client or transfers to an unrelated position in Client’s employ, Client may designate a replacement Authorized User without charge.
   
   
3. From time to time, Client may provide RedBeam with feedback, both positive and negative, regarding Client’s and its Authorized User’s use of the Hosted Solution, including, without limitation, details regarding ease of use, functionality, errors or problems accessing or using the Hosted Solution, possible enhancements or modifications to the Hosted Solution and other similar information (collectively, the “Feedback”). All of such Feedback will be owned by RedBeam and be deemed to be the Confidential Information of RedBeam.

 

7. Client Data.

1. Client: (i) grants RedBeam the right to use, copy, modify, manipulate and create derivative works of the Client Data as necessary in order for RedBeam to provide and perform the Hosted Solution; (ii) agrees to secure rights in the Client Data necessary for RedBeam to provide the Hosted Solution without violating the rights of any third party, or otherwise obligating RedBeam to Client or any third party (except as otherwise set out in this Agreement); and (iii) will use commercially reasonable efforts to prevent the transmission of any Trojan horse, malicious code, or other computer software code, routines or device designed to disable, damage, impair, erase or deactivate any data via the Client’s networks or system to RedBeam’s networks or systems. Client will indemnify, defend and hold RedBeam, its affiliates and their respective directors, officers, employees, agents, successors and assigns harmless from and against any and all claim, suit, action, demand, costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees and costs) resulting from Client’s breach (or alleged breach) of the terms of this Section 7(a). Except as otherwise required by applicable law, RedBeam does not and will not accept any obligations in any separate license or other agreement that may apply to the Client Data or use of the Services. RedBeam may transmit or disclose Client Data to third parties in accordance with Client's or its Authorized User's directions (whether via the Hosted Solution or otherwise).

2. Upon expiration or termination of this Agreement, Client must notify RedBeam (which may be via email) within five (5) days of expiration or termination whether to (i) disable all Client accounts relating to the terminated Hosted Solution and delete the Client Data in such accounts; or (ii) provide Client with limited access to its account for a period of ninety (90) days after the date of such expiration or termination (the "Retention Period") for the sole purpose of permitting Client to retrieve its Client Data, in which case Client will reimburse RedBeam if there are any applicable costs; provided, however, that the provisions of subsection (ii) will not apply unless Client has paid all amounts due to RedBeam through the effective date of termination no later than five (5) days after such date. If Client does not indicate (i) or (ii), RedBeam will retain the Client Data in accordance with subsection (ii). Following the expiration of the Retention Period, RedBeam will disable all Client accounts relating to the terminated Services and delete the Client Data contained in those accounts. Client agrees that, other than as described in this Section 4(b) and notwithstanding any other term in this Agreement, RedBeam has no obligation to continue to hold or return any Client Data. Client also agrees that RedBeam has no liability for deletion of any Client Data pursuant to these terms.

3. RedBeam will implement reasonable and appropriate technical and organizational measures to help secure the Client Data against accidental or unlawful loss, access, or disclosure. Client agrees that these measures are (i) RedBeam’s only responsibility with respect to the security and handling of Client Data, except as otherwise required by applicable law; and (ii) in lieu of, and not in addition to, the confidentiality terms of Section 10 of this Agreement. Client agrees that RedBeam may transmit or disclose the Client Data to third parties in accordance with Client’s or its End Users' directions (whether via the Hosted Solution or otherwise).

4. RedBeam may automatically collect usage and volume statistical information regarding Client's and its End User's usage of the Hosted Solution (collectively, the "Usage Metrics"). RedBeam uses the Usage Metrics internally to diagnose technical problems, administer the Hosted Solution, and improve its offerings and marketing. The Usage Metrics do not include any personal information or data related to the user of the Services. Notwithstanding any term to the contrary in this Agreement, Client agrees and consents to RedBeam's collection and use of the Usage Metrics as set forth herein, and Client further agrees that the Usage Metrics are RedBeam's sole and exclusive property.

 

8. Limited Warranty; Disclaimers.

RedBeam warrants that it will use commercially reasonable efforts to integrate Client Data provided by Client in the Hosted Solution and provide the Hosted Solution to Client, provided that: (i) Client and all End Users have used equipment, settings and software that meet the System Requirements and have not otherwise used any equipment or software that adversely affects the Hosted Solution; and (ii) Client (or Client’s reseller, as applicable) has paid all amounts due under this Agreement and is not in default of any provision of this Agreement. CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE WARRANTY CONTAINED IN THIS SECTION 8(a) IS REPERFORMANCE OF THE NONCONFORMING HOSTED SOLUTION. AS BETWEEN THE PARTIES, CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL CLIENT DATA USED IN CONNECTION WITH THE HOSTED SOLUTION. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN ABOVE, THE HOSTED SOLUTION AND SOFTWARE ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND REDBEAM AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE HOSTED SOLUTION OR SOFTWARE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. EXCEPT AS MAY BE OTHERWISE SET FORTH IN THE APPLICABLE TERMS OF SERVICE, REDBEAM DOES NOT WARRANT THAT THE HOSTED SOLUTION OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.

 

9 Limitation of Liability; Force Majeure.

1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITIES ARISING FROM CLIENT’S BREACH OF THE LICENSE TERMS OR THE TERMS OF SECTION 10, BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA OR PROPERTY ARISING FROM ANY CLAIMS WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, EVEN IF THE OTHER PARTY, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
   
   
2. EXCEPT WITH RESPECT TO LIABILITY FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR BREACH OF SECTION 10 HEREOF, OR AS MAY BE OTHERWISE SET FORTH IN AN ORDER WITH RESPECT TO A SPECIFIC SERVICE, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO THE OTHER PARTY OR ANY USERS UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES RECEIVED BY REDBEAM UNDER THE ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
   
   
3. THE PARTIES ACKNOWLEDGE THAT REDBEAM HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
   
   
4. Neither party will be liable for and will not be responsible to the other for any delay or failure to perform under this Agreement if such delay or failure results from any act or cause beyond the reasonable control of the affected party. If either party is unable to perform under this Agreement because of the occurrence of an event of force majeure lasting more than thirty (30) days, then the other party may terminate the affected Service(s) and applicable Order(s) upon written notice to the other party.
   
   

10. Confidential Information; Intellectual Property Rights.

1. Client acknowledges that it will have access to certain Confidential Information, which expressly includes, without limitation, RedBeam Technology. Client agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to Client’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information. Client will protect the confidentiality of the Confidential Information by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own similar sensitive information. The obligations of this Section 10 will last during and after the term of this Agreement. Client may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives RedBeam reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
   
   
2. Neither party will publish or use any advertising, sales promotions, press releases or other publicity that uses the name, logo, trademarks or service marks of the other without the prior written approval of the other, provided that RedBeam may list Client as a customer of RedBeam.
   
   
3. RedBeam and its licensors will retain all right, title, and interest (including copyright and other intellectual property rights or informational rights) in and to the Hosted Solution and the Software and all legally protectable elements or derivative works thereof, including, without limitation, the RedBeam Technology. Client does not obtain any rights in the Software, Hosted Solution or RedBeam Technology pursuant to this Agreement, other than the limited license to use the same as specifically set forth herein. RedBeam may place copyright or other proprietary notices, including hypertext links, within the Software or Hosted Solution. Client and its users will not alter or remove such notices without RedBeam’s written permission.
   
   
4. In the event of a violation or threat of violation by Client, directly or indirectly, of the terms of Section 10, RedBeam will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Client acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate.
   
   

11. Assignments. Neither this Agreement, nor a party’s obligations or rights hereunder, may be transferred or assigned by either party without the other party’s prior written consent; provided, however, that either party may assign this Agreement in whole, but not in part, without the other party’s consent to (a) any entity controlled by, under common control with, or controlling such party; (b) the successor-in-interest in any merger, share exchange or other reorganization; or (c) the purchaser of all or substantially all of such party’s assets. Any attempted assignment, transfer or other disposition by a party in violation of this provision will be null, void and of no force and effect. This Agreement will inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto.

12. General. This Agreement constitutes the entire understanding and final agreement between Client and RedBeam with respect to the subject matter hereof and supersedes any and all prior written or oral discussions, proposals, RFPs, emails or other communications; provided, however, that in the event Client and RedBeam have executed a separate Master Services Agreement that provides for the provision of the Hosted Solution, then the terms of such separate MSA (and all other documents and terms incorporated therein) shall control. UNDER NO CIRCUMSTANCES WILL THE TERMS, CONDITIONS OR PROVISIONS OF ANY PURCHASE ORDER OR OTHER ADMINISTRATIVE DOCUMENT ISSUED BY CLIENT MODIFY, ALTER OR EXPAND THE RIGHTS, DUTIES OR OBLIGATIONS OF THE PARTIES, REGARDLESS OF ANY FAILURE OF REDBEAM TO SEPARATELY OBJECT TO SUCH TERMS, PROVISIONS, OR CONDITIONS. The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation. The parties and their respective personnel are and will be independent contractors, and neither party by virtue of this Agreement shall be an agent of the other party. No waiver, amendment or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is executed by both parties as described on the execution page of the MSA. The deemed unenforceability of any part of this Agreement in any circumstance shall not affect the remainder of the Agreement. The parties agree that the Agreement should not be more strictly construed against one party than the other. All notices will be in writing and will be deemed to be delivered when received by a nationally recognized overnight courier or when sent by confirmed e-mail, with a copy promptly sent via first-class mail. All notices to RedBeam shall be directed to 3325 Paddocks Parkway, Suite 250, Suwanee, GA 30024, Attn: Customer Service, Email: support@redbeam.com. All notices to Client shall be as set forth on the Order (if applicable) or to any administrative End User designated in Client’s account in the Hosted Solution. This Agreement and all obligations of the parties hereunder shall be governed by the laws of the State of Georgia, without regard to any conflict of laws rules or analyses. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction in Gwinnett County, Georgia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens. The United Nations Convention on Contracts for the International Sale of Goods is excluded from application to this Agreement. Time is of the essence hereof. This Agreement will inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto. Other than the indemnified parties described in Section 7(a) of this Agreement, there are no third party beneficiaries to this Agreement.

 

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