PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE.
BY USING THE SOFTWARE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between Beamable Inc., a Delaware corporation (Beamable), and the Customer agreeing to these terms (Customer). The Beamable software, modification, enhancements, documentation, and license keys provided to Customer (Software) are licensed and are not sold.
This agreement describes the licensing of the Software and Support provided to Customer under an order.
Subject to the other terms of this agreement, Beamable grants Customer, under an order, for the duration specified in the order, a term-based, non-exclusive, non-transferable license up to the license capacity purchased to use the Software only in Customer’s internal business operations. In addition, Beamable will provide as part of the operation of the Software a connected web service for use with the Software (Web Service).
BEAMABLE DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER UNDERSTANDS THAT THE SOFTWARE AND WEB SERVICE MAY NOT BE ERROR-FREE AND USE MAY BE INTERRUPTED.
- Beamable is free to use for all API calls made in the development and staging environments. If a game receives more than 500 MAU in a Beamable production environment during a calendar month, Customer will be charged $0.000003 for all API calls in the production environment. If a customer elects to purchase Pro Support (see Support section below) then those fees will be charged on the same monthly invoice.
- Customer can also request dedicated game infrastructure billed at a separate cost and in addition to any other usage or support fees. Any dedicated infrastructure will be quoted in advance and approved by Customer in advance of provisioning and fees.
- Customer will pay all fees within thirty days from receipt of an invoice unless otherwise provided on an order, plus any applicable sales, use, withholding, VAT, and other similar taxes included on the invoice.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Beamable’s Confidential Information includes, without limitation, the Software, nonpublic portions of its user interface design and layout, and pricing information.
- Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
- Reservation of Rights. The Software, Web Service workflow processes, user interface, designs, technical documentation, and other technologies provided by Beamable as part of the Software are the proprietary property of Beamable and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with Beamable and its licensors. The Software is protected by applicable copyright and other intellectual property laws. Customer may not remove any product identification, copyright, trademark, or other notice from the Software. Beamable reserves all rights unless expressly granted in this agreement.
- Restrictions. Customer may not: (i) transfer, assign, sublicense, rent the Software, create derivative works of the Software, or use it in any type of service-provider environment; (ii) reverse engineer, decompile, disassemble, or translate the Software; (iii) evaluate the Software for the purpose of competing with Beamable; or (iv) operate the Software other than in accordance with its Getting Started Guide and other technical documentation.
TERM AND TERMINATION
- Term. This agreement expires when Customer ceases using Beamable services and technology.
- Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
- Return Beamable Property Upon Termination. Upon termination of this agreement or a license for any reason, Customer must discontinue using the Software, de-install, and destroy or return the Software and all copies within 5 days. Upon termination of the license to the Software all access to the Web Service will also be terminated. Upon Beamable’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
- Exclusion of Indirect Damages. To the maximum extent allowed by law, Beamable is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
- Total Limit on Liability. To the maximum extent allowed by law, Beamable’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the greater of the amount paid or payable by Customer within the 12-month period prior to the event that gave rise to the liability.
Beamable’s technical support and maintenance services (Support) are included with the license purchase. Support is provided under the Support policies then in effect. Beamable may change its Support terms, but Support will not materially degrade during any Support term. Professional Support is available for purchase while in Beamable Development or Production environments. While in Development, Professional Support is available for $200 per month (and per Game) and includes private chat/email and dedicated work sessions. While in Production the Professional Support is available for $600 per month (and per Game) and includes private chat/email, dedicated work sessions, and weekly syncs. Professional support will be invoiced monthly in arrears.
DEFENSE OF THIRD-PARTY CLAIMS
Beamable will defend or settle any third-party claim against Customer to the extent that such claim alleges that the Software violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies Beamable of the claim in writing, cooperates with Beamable in the defense, and allows Beamable to solely control the defense or settlement of the claim. Costs. Beamable will pay infringement claim defense costs it incurs in defending Customer, Beamable-negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, then Beamable may modify the Software, procure the necessary rights, or replace it with the functional equivalent. If Beamable determines that none of these are reasonably available, then Beamable may terminate the Software and refund any prepaid and unused term license fees. Exclusions. Beamable has no obligation for any claim arising from: Beamable’s compliance with Customer’s specifications; a combination of the Software with other technology or aspects where the infringement would not occur but for the combination; or technology or aspects not provided by Beamable. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND Beamable’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
GOVERNING LAW AND FORUM
This agreement is governed by the laws of the Commonwealth of Massachusetts (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Middlesex County, Massachusetts, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
- Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by Beamable.
- No Assignment. Neither party may assign or transfer this agreement to a third party, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
- Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
- No Additional Terms. Beamable rejects additional or conflicting terms of a Customer’s form-purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
- Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
- Compliance Audit. No more than once in any 12-month period and upon at least 30 days’ advance notice, Beamable (or its representative) may audit Customer’s usage of the Software at any Customer facility. Customer will cooperate with such audit. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Software in excess of the license.
- Export Compliance. Customer must comply with all applicable export control laws of the United States, foreign jurisdictions, and other applicable laws and regulations.
- U.S. Government Restricted Rights. If Customer is a United States government agency or acquired the license to the Software hereunder pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1), and DFAR §252.227-7014(a)(5), or otherwise, all Software provided in connection with this agreement are “commercial items,” “commercial computer software,” or “commercial computer software documentation.” Consistent with DFAR §227.7202 and FAR §12.212, any use, modification, reproduction, release, performance, display, disclosure, or distribution by or for the United States government is governed solely by the terms of this agreement and is prohibited except to the extent permitted by the terms of this agreement.
- Open Source Software Licenses. The Software may contain embedded open source software components, which are provided as part of the Software and for which additional terms may be included in the technical documentation.
- Feedback. If Customer provides feedback or suggestions about the Software, then Beamable (and those it allows to use its technology) may use such information without obligation to Customer.