Terms of Service

These Terms of Service (this "Agreement") are a binding contract between you ("Customer," "you," or "your") and Prodbeam, Inc. ("Prodbeam," "we," or "us"). This Agreement governs your access to and use of the Cloud Services. Prodbeam and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."

Agreement Acceptance

THIS AGREEMENT TAKES EFFECT WHEN YOU ACCEPT THE TERMS DURING SIGN-UP OR BY ACCESSING OR USING THE SERVICES(the "Effective Date"). BY ACCEPTING THE TERMS DURING SIGN-UP OR BY ACCESSING OR USING THE SERVICES YOU(A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 13(b) (THE "ARBITRATION AGREEMENT") AND A CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 13(c) (THE "CLASS ACTION/JURY TRIAL WAIVER") THAT REQUIRE, UNLESS CUSTOMER OPTS OUT PURSUANT TO THE INSTRUCTIONS IN THE ARBITRATION AGREEMENT, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (AS DEFINED BELOW), YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION OR PROCEEDING.

IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.

1. Definitions

2. Access and Use

a. Provision of Access

Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, including without limitation the Usage Limitations, Prodbeam will make available to Customer during the Subscription Period, on a non-exclusive, non-transferable (except in compliance with Section 14(g)), and non-sublicensable basis, access to and use of the Services, solely for use by Authorized Users. Such use is limited to Customer's internal business purposes and the features and functionalities specified in the Order. Prodbeam shall provide to Customer the necessary access credentials to allow Customer to access the Services.

b. Documentation License

Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, Prodbeam hereby grants to Customer a non-exclusive, non-transferable (except in compliance with Section 14(g)), and non-sublicensable license to use the Documentation during the Subscription Period solely for Customer's internal business purposes in connection with its use of the Services.

c. Use Restrictions

Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of any Prodbeam IP, whether in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from any Prodbeam IP; (v) use any Prodbeam IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) access or use any Prodbeam IP for purposes of competitive analysis of Prodbeam or the Services, the development, provision, or use of a competing software service or product, or any other purpose that is to Prodbeam's detriment or commercial disadvantage; (vii) bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of valid access credentials; (viii) input, upload, transmit, or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or that contain, transmit, or activate any Harmful Code; (ix) use the Services to process, store, or transmit any data in violation of any applicable law or regulation; or (x) use the Services in a manner that exceeds reasonable use limits or that may disrupt, damage, or interfere with the Services or any third-party services integrated with the Services.

d. Reservation of Rights

Prodbeam reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Prodbeam IP.

e. Suspension

Notwithstanding anything to the contrary in this Agreement, Prodbeam may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Prodbeam reasonably determines that (A) there is a threat or attack on any of the Prodbeam IP; (B) Customer's or any Authorized User's use of the Prodbeam IP disrupts or poses a security risk to the Prodbeam IP or to any other customer or vendor of Prodbeam; (C) Customer or any Authorized User is using the Prodbeam IP for fraudulent or illegal activities; (D) Customer's account is past due; or (E) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (ii) any vendor of Prodbeam has suspended or terminated Prodbeam's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 6(a)(iii) or any other provision of this Agreement. Prodbeam shall use commercially reasonable efforts to provide written notice of any suspension to Customer and to provide updates regarding resumption of access to the Services following any material suspension. Prodbeam shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the suspension is cured. Prodbeam will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a suspension.

3. Customer Responsibilities

Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.

Customer shall: (a) ensure that all integrations with third-party services (such as GitHub, Jira, etc.) are properly authorized and comply with the terms of service of such third-party providers; (b) maintain the security of all access credentials and promptly notify Prodbeam of any unauthorized access or use; (c) ensure that Customer Data does not contain any Personal Information or other data that Customer is not authorized to process; (d) comply with all applicable laws and regulations in connection with its use of the Services; and (e) be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.

4. Service Levels and Support

Prodbeam will use commercially reasonable efforts to make the Services available in accordance with the service levels set forth in the Order or as otherwise communicated to Customer. Prodbeam will provide support to Customer in accordance with the support tier specified in the Order. Customer acknowledges that the Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and that Prodbeam is not responsible for any delays, delivery failures, or other damage resulting from such problems.

5. Fees and Payment

Customer shall pay Prodbeam the fees set forth in the Order ("Fees") in accordance with the terms set forth therein. If Customer's use of the Services exceeds the Usage Limitations or otherwise requires the payment of additional fees (per the terms of the Order), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided in the Order. Prodbeam reserves the right to change the Fees or to add new charges and fees, provided that such changes will not take effect until the next Renewal Subscription Period (as defined below) or as otherwise set forth in the Order. All Fees are non-refundable except as required by law or as otherwise specified in the Order.

If Customer fails to make any payment when due, without limiting Prodbeam's other rights and remedies: (i) Prodbeam 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; (ii) Customer shall reimburse Prodbeam for all reasonable costs incurred by Prodbeam in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Prodbeam may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.

6. Confidential Information

From time to time, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 6 by the receiving Party or any of its representatives; (b) is or becomes available to the receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the receiving Party or its representatives before being disclosed by or on behalf of the disclosing Party; (d) was or is independently developed by the receiving Party without reference to or use of any Confidential Information; or (e) is required to be disclosed pursuant to applicable law or court order.

The receiving Party shall: (a) protect and safeguard the confidentiality of all Confidential Information of the disclosing Party with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the receiving Party's representatives who need to know the Confidential Information to assist the receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

7. Intellectual Property Rights

Customer hereby irrevocably grants to Prodbeam all such rights and permissions in or relating to Customer Data as are necessary or useful for Prodbeam to enforce this Agreement and exercise Prodbeam's rights and perform Prodbeam's obligations hereunder. Customer retains all right, title, and interest in and to Customer Data. Prodbeam owns and will continue to own all right, title, and interest in and to the Services, including all related intellectual property rights. Customer acknowledges that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. Customer agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services.

8. Third-Party Products

The Services may permit Customer to access or use Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Prodbeam is not responsible or liable for any Third-Party Products. Customer's access to and use of any Third-Party Products is at Customer's own risk. Customer acknowledges that Prodbeam may need to access Customer's accounts with Third-Party Products in order to provide the Services, and Customer grants Prodbeam permission to access Customer's accounts with Third-Party Products for such purposes.

9. Privacy Policy

Customer's use of the Services is also subject to Prodbeam's Privacy Policy, which is incorporated into this Agreement by reference. Please review the Privacy Policy, which also governs Customer's use of the Services, to understand Prodbeam's practices.

10. Warranty Disclaimer

THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND PRODBEAM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PRODBEAM 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. PRODBEAM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, 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.

11. Indemnification

Customer shall indemnify, hold harmless, and, at Prodbeam's option, defend Prodbeam and its officers, directors, employees, agents, affiliates, successors, and assigns from and against 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, arising from or relating to Customer's or any Authorized User's: (a) use or misuse of the Services; (b) breach of any provision of this Agreement; (c) Customer Data; or (d) violation of any applicable law or regulation.

12. Limitations of Liability

IN NO EVENT WILL PRODBEAM BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PRODBEAM WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

IN NO EVENT WILL PRODBEAM'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PRODBEAM UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR ONE THOUSAND DOLLARS ($1,000), WHICHEVER IS LESS.

13. Term and Termination

The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect until the expiration of the Subscription Period set forth in the Order (the "Initial Term"). This Agreement will automatically renew for additional successive terms of the same duration as the Initial Term unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Subscription Period" and together with the Initial Term, the "Subscription Period").

Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. 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.

Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services and Prodbeam IP. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

14. Miscellaneous

This Agreement, together with any other documents incorporated herein by reference, 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, and representations and warranties, both written and oral, with respect to such subject matter.

Prodbeam may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. Prodbeam will provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer's account on the Services or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Services after the effective date of the revised Agreement, such access and use will constitute Customer's acceptance of the revised Agreement beginning at the next Renewal Subscription Period or, if Customer enters into a new Order with Prodbeam, as of the date of execution of such Order.

Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Prodbeam. Any purported assignment or delegation in violation of this Section will be null and void.

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and addressed to the Parties at the addresses set forth in the Order or as otherwise designated by the Party giving notice from time to time. All notices to Prodbeam must be sent to legal@prodbeam.com.

This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

15. Contact Us

If you have any questions about this Agreement, please contact us at: