You (“Customer”) agree to these Terms by clicking to accept these Terms, executing a document that references them, or using the Services.
If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization.
1.1 Independent Contractor. BeeRoll shall perform all Services under this Agreement as an independent contractor and not as an employee or agent of Customer. BeeRoll’s employees and Subcontractors are not Customer’s employees or agents and shall work under the control and management of BeeRoll. BeeRoll shall be solely responsible for the payment of compensation and all benefits, to its employees and Subcontractors and the employees and Subcontractors of BeeRoll are not entitled to any benefits, coverages or privileges, including, without limitation, social security, unemployment, medical or pension payments, made available to employees of
1.2 End Users and Subcontractors. Customer acknowledges and agrees that the User Content shall be created by End Users, not BeeRoll, and that unless otherwise set forth in an applicable Statement of Work, BeeRoll’s Services shall be limited to reviewing and editing such User Content to create the final Deliverables. BeeRoll may subcontract all or any portion of the Services to third parties (“Subcontractors”) in its sole discretion.
1.3 Acceptance of Deliverables. Deliverables shall be provided to Customer for evaluation and approval in BeeRoll software. In the event that any Deliverables do not substantially conform to their specifications, Customer shall “Reject” the deliverables in the BeeRoll software or provide BeeRoll with either written notice in a reasonable amount of time, detailing any such non-conformance, BeeRoll will use commercially reasonable efforts at no additional charge to Customer to modify or replace the affected Deliverables so that they substantially conform to their specifications. However, in no event shall BeeRoll publish or use Deliverables that have not been approved by Customer.
2. OWNERSHIP OF INTELLECTUAL PROPERTY
2.1 Deliverables. All Deliverables shall belong exclusively to Customer. All works created by BeeRoll for Customer shall be considered works made for hire. Should the Deliverables not be deemed to be works made for hire, upon full payment therefor, BeeRoll hereby assigns to Customer the entire right, title and interest in and to the Deliverables, including all intellectual property rights therein. BeeRoll shall cause each employee or Subcontractor of Contractor to, sign all documents that Customer may reasonably request BeeRoll or any such employee or Subcontractor to sign to effectuate Customer’s ownership of the Deliverables. BeeRoll hereby waives any and all moral rights in and to the Deliverables.
2.2 Other Intellectual Property. Any use of Customer’s trademarks or other intellectual property by BeeRoll in Deliverables or otherwise shall inure top the benefit of Customer. Any use of Customers’ trademarks or other intellectual property must be pre-approved in writing.
3.1 Definition. As used here, “Confidential Information” means any and all technical and non-technical information, whether in oral, written, graphic or electronic form, that one Party (the “Disclosing Party”) provides to the other (the “Receiving Party”) under this Agreement, including any ideas, samples, media, techniques, sketches, drawings, works of authorship, firmware, layouts, designs, models, inventions, know-how, processes, algorithms, software and source documents, related to the current, future, and proposed products and services of the Disclosing Party, and any information concerning research, design details and specifications, financial information, employees, business and contractual relationships, business forecasts, sales and marketing plans, information the Disclosing Party provides regarding third parties, and any third party proprietary information disclosed by the Disclosing Party.
3.1 Exceptions. Confidential Information does not include any information that (i) is or becomes generally available to the public through no improper action or inaction by the Receiving Party; (ii) was known by the Receiving Party or in the Receiving Party’s possession prior to receipt of the Confidential Information as shown by the Receiving Party’s business records kept in the ordinary course; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information and provided that the Receiving Party can demonstrate such independent development by documented evidence prepared contemporaneously with such independent development; or (v) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party, and otherwise not in violation of the Disclosing Party’s rights.
3.2 Non-Disclosure. The Receiving Party: (a) shall treat as confidential all Confidential Information of the Disclosing Party; (b) shall not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing; and (c) shall implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the Disclosing Party’s Confidential Information; and shall not sell, assign, license, market, transfer or otherwise dispose of, give or disclose such Confidential Information to any third party, except that the Receiving Party may disclose Company’s Confidential Information to such of Contractor’s employees or Subcontractors who have a need to know such information as may be necessary and required in connection with the rights and obligations of the Receiving Party under this Agreement, and provided that in such case such Confidential Information is subject to confidentiality obligations at least as protective as those set forth in this Agreement. Without limiting the foregoing, the Receiving Party shall use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the Disclosing Party under this Agreement, but in no event less than reasonable care.
3.3 Remedies. If the Receiving Party breaches any of its obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, the Disclosing Party is entitled to obtain equitable and injunctive relief in addition to all other remedies that may be available to protect its interest. The Receiving Party acknowledges and agrees that damages alone may not be an adequate remedy.
4. PAYMENT, TERM AND TERMINATION
4.1 Fees for services. You agree to pay to BeeRoll any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you select through your account management page. If you have elected to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct and you will promptly notify BeeRoll of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
4.2 Subscriptions. Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. YOU MAY CANCEL AUTO-RENEWAL ON YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING email@example.com, IN WHICH CASE YOUR SUBSCRIPTION WILL CONTINUE UNTIL THE END OF THAT BILLING CYCLE BEFORE TERMINATING.
4.3 Price Changes. BeeRoll may change the fees charged to you for the Services at any time, provided that, for Subscriptions, the change will become effective only at the end of the then-current billing cycle of your Subscription. BeeRoll will provide you with advance notice of any change in fees.
4.4 Overage Fees. Unless otherwise stated, any overage fees incurred by you will be billed as they occur.
4.5 Effect of Termination. Upon the expiration or any termination of this Agreement (a) Customer shall promptly pay to BeeRoll any amounts due and payable to BeeRoll that remain outstanding, and upon receipt of such payment, BeeRoll shall deliver to Customer all completed or in-progress Deliverables, and (b) each Party shall promptly return all Confidential Information of the other party.
4.6 Survival. The following sections shall survive the expiration or any termination of this Agreement: 1 (Definitions), 3 (Fees, Expenses and Payment), 4 (Ownership of Intellectual Property), 5 (Confidentiality), 6.3 (Effect of Termination), 6.4 (Survival), 7 (Warranties and Disclaimer), 8 (Limitation of Liability), and 9 (Miscellaneous). In addition, if this Agreement expires and Services remain to be performed under one or more Statements of Work, the terms and conditions of this Agreement shall survive until the completion of such Services or the termination of such Statements of Work.
5. WARRANTIES AND DISCLAIMER
5.1 Services and Deliverables. BeeRoll represents and warrants that (a) the Services will be performed in a professional and workmanlike manner, using qualified personnel with appropriate skills, training and experience to provide the Services in accordance with the terms and conditions of this Agreement and all applicable laws, and (b) the Deliverables will conform to any specifications therefor set forth in the applicable Statement of Work. BeeRoll’s sole and exclusive obligation, and Customer’s sole and exclusive remedy for any breach of the foregoing warranties is for BeeRoll to promptly reperform the affected Services and/or provide replacement conforming Deliverables, in each case, at no additional cost to Customer.
5.2 Warranty Disclaimer. EXCEPT AS SET FORTH ABOVE IN SECTION 7.1, BEEROLL MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN TO CUSTOMER WITH RESPECT TO THE SERVICES OR DELIVERABLES UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (A) OF MERCHANTABILITY, (B) OF FITNESS FOR A PARTICULAR PURPOSE, (C) OF NON-INFRINGEMENT, OR (D) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. EXCEPT AS PROVIDED ABOVE, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS”.
6. LIMITATION OF LIABILITY
6.1 Exclusion of Consequential Damages. IN NO EVENT SHALL BEEROLL BE LIABLE TO CUSTOMER, OR TO ANY PERSON CLAIMING THROUGH OR UNDER CUSTOMER, FOR ANY LOST PROFITS OR FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATED TO THE SERVICES, DELIVERABLES OR THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, AND EVEN IF BEEROLL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 Limitation on Direct Damages. IN NO EVENT SHALL BEEROLL’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO BEEROLL FOR SERVICES UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY.
7.1 Amendment and Modification. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each Party.
7.2 Assignment. Neither Party may assign or transfer this Agreement without the other Party’s prior written consent, and any purported assignment or transfer in violation of this provision is null and void, and shall constitute a material breach of this Agreement. Notwithstanding the foregoing, either Party may assign this Agreement in whole or in part to an Affiliate, or to a successor in interest upon any merger, reorganization, stock sale, change of control, or sale of all or substantially all of such Party’s assets or the assets to which this Agreement relates. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
7.3 Construction. Each Party and its counsel have participated fully in the review and revision of this Agreement and any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement. The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation.
7.4 Counterparts. This Agreement may be executed in several counterparts, including via facsimile and/or PDF format, all of which taken together shall constitute one single agreement between the Parties.
7.5 Entire Agreement. This Agreement, including its attached Exhibits and any Statements of Work executed by the Parties, contains the entire agreement of the Parties with respect to its subject matter and supersedes all existing agreements, and all oral, written or other communications between them concerning its subject matter.
7.6 Force Majeure. Except for the obligations of confidentiality and the payment of any amounts due and payable by Customer under this Agreement, neither Party shall be held responsible for any delay or failure in performance of this Agreement caused directly by the following events beyond the reasonable control of that Party: natural disaster (e.g., earthquakes), fires, explosion, wars, civil disturbances, insurrections, governmental acts or acts authorized by the government, accidents, labor conflicts, shortage of materials, incapability of acquiring materials, equipment or transportation.
7.7 Governing Law; Venue; Jury Trial Waiver. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Massachusetts without regard to conflict of law principles that would result in the application of any law other than the State of Massachusetts. The federal and state courts sitting in Massachusetts shall have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.8 Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (a) personal delivery to the Party to be notified, (b) when sent, if sent by facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective Parties at their address as set forth below, or to such facsimile number or address as subsequently modified by written notice given in accordance with this Section 9.8).
7.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be prohibited or unenforceable, such provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall continue in full force and effect.
7.10 Third Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any Person other than the Parties, and each such Party’s respective successors and permitted assigns.
7.11 Waiver. No failure or delay of any Party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. Any agreement on the part of any Party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such Party.