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 ACCEPT 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 the Customer (“Software”) are licensed and are not sold. Assenting to these terms creates an order for the Free Tier of Beamable’s Services (“Order”). The various tiers available can be found in Exhibit A.
This agreement describes the licensing of the Software and Support (as described below) provided to the Customer under the terms described herein.
Subject to the other terms of this agreement, while on the Free Tier, Beamable grants Customer, for the duration of the Term specified below, a term-based, non-exclusive, non-assignable license 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 set of Platform Services.
“API Calls” billed by Beamable as part of a Subscription Tier make up a Usage-Based plan and include all calls that occur to Beamable managed services, whether they originate from the end-user app, a custom game server, or a custom C# Microservice. API Calls do not include calls that Beamable makes implicitly or extra hops made between Beamable-managed services.
“CID” means customer identification, a unique code assigned to each Customer, used in our internal reporting and analytics and the basis for determining the Customer’s usage of our Services.
“Developer Seat” is a unique email ID and password attached to a customer account.
“Subscription Tier” means the set of services and limits available for a monthly subscription price under Beamable. A subscription tier is made up of the number of allowed dev seats, the number of included API Calls, the number of Microservice Instances allowed, and any other functional or support services offered at that tier.
“Free Tier” means a customer using the services under the limits set forth in the first column in Exhibit A
“Microservice” means a single custom C# microservice running in a single realm. If you have one customer C# microservice deployed to a dev, staging, and production realm, that counts as three microservices.
“Paid Tier” means a customer using the services under the limits set forth in any of the columns in Exhibit a except for the first (Free) column.
“Platform Services” is the sum total of all capabilities of Beamable provided under this software license. this includes but is not limited to: Unity SDK that includes Prefabs, UI skinning system, content management tools, and offline support.Identity systems with Login UI/Accounts, 3rd party logins, a player admin portal, and cloud storage. Social systems for Friend lists, groups/teams/guilds, leaderboards, events, and tournaments. Commerce systems for payments, inventory/item management, calendaring systems, and AB trials. Messaging via chat, in-game mail, push notifications, news & announcement systems. C# Microservices authoring and MicroStorage. Multiplayer support with relay server, deterministic multiplayer, and matchmaking. Data & Analytics support for trials, history, stats, and event forwarding.
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 PLATFORM SERVICE MAY NOT BE ERROR-FREE AND USE MAY BE INTERRUPTED.
5.1 Beamable is free for Customer to use up to the limits defined by the Free Tier.
5.2 If Customer exceeds any of the limits of the Free Tier then they will be automatically upgraded to the next Paid Tier. Any time Customer exceeds the limit of a Paid Tier they will be automatically upgraded to the next applicable level.
5.3 Once Customer moves from the Free Tier to a Paid Tier, Customer will be invoiced through Company’s payment processing account.
5.4 If on a Paid Tier, Customer will be invoiced for monthly recurring fees each month and will be charged to a payment method on file with the processor. Any variable monthly fees, such as API-based pricing, will be invoiced within fifteen days from the end of a month and payable within 30 days of receipt of invoice unless otherwise provided on an order. All invoices will include any applicable sales, use, withholding, VAT, and other similar taxes as required.
5.5 Upgrades to a new Paid Tier occur at the end of the month. If Customer exceeds a limit of a lower tier at any point during the month, they will be billed the full month at that higher tier at the end of the month.
6.0 MUTUAL CONFIDENTIALITY
6.1 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.
6.2 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.
6.3 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.
7.1 Reservation of Rights. The Software, Platform 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.
7.2 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.
7.3 Covenants. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws (including export control laws) and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from a claim regarding Customer’s non-compliance to applicable laws and regulations, provided Customer is promptly notified of any and all threats, claims and proceedings related thereto (except that failure to provide such notice will relieve Customer of its obligations only to the extent Customer is materially prejudiced as a direct result of such failure) and given reasonable assistance (at Customer’s request and expense) and the opportunity to assume sole control over defense and settlement; provided, however, Company may participate at its own expense in the defense and any settlement discussions, and will have the right to approve any settlement agreement that involves an admission of fault by Company or imposes non-monetary obligations on Company (such approval not to be unreasonably withheld).
8.0 TERM AND TERMINATION
8.1 Term. This agreement expires when Customer ceases using Beamable services and technology or moves to an enterprise plan.
8.2 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.
8.3 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 Platform Service will also be terminated. Upon Beamable’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
9.0 LIABILITY LIMIT
9.1 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.
9.2 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) will 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 under this agreement are limited to online documentation, documentation Q/A, and Discord chat support. Additional support can be purchased as part of a Subscription Tier or Enterprise Agreement.
11.0 DEFENSE OF THIRD-PARTY CLAIMS
11.1 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.
11.2 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.
12.0 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.
13.0 OTHER TERMS
13.1 Entire Agreement and Changes. This agreement constitutes the entire agreement between the parties and supersedes 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.
13.2 No Agency Relationship. This Agreement creates a licensor-licensee relationship between the Parties. Nothing in this Agreement shall be construed to establish a joint venture, agency, or partnership relationship between the Parties.
13.3 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.
13.4 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.
13.5 Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
13.6 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.
13.7 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.
13.8 Feedback. If Customer provides feedback, comments or suggested enhancements about the Software (“Feedback”), then Beamable (and those it allows to use its technology) may use such Feedback without obligation to Customer.
EXHIBIT A – Service Fees
Customer will receive a monthly charge for the tier that is selected in the Order. Customer will automatically move to a higher tier if they pass the limits of any defined services below.
Subscription Tiers – Reference
|Developer Seats included||1||3||3||10||10||20||30|
|Included API Calls||100k||3M||10M||20M||30M||60M||100M|
|Support||Discord||Discord||Private Chat||Private Chat|
Subscriptions billed for all games and realms at the CID level
* Indie tier only available to independent/international game teams with no revenue or funding.
++ Microservices are counted per service per realm. 1 microservice in 3 realms (dev, staging, and production) counts as 3 services.
Additional Services – Reference
Customer can optionally purchase the following services for any Game utilizing Beamable under this Agreement billed monthly on Net 30 payment terms.