Beefree terms of service
This Beefree terms of service (the “Agreement”) is entered into between BEE Content Design, Inc. a Delaware corporation (“BCD”), acting for and on behalf of itself and each of its Affiliates, and the Client identified on the Registration Form as below defined (the “Client”).
BCD and the Client individually also the “Party”, and collectively, the “Parties”.
I. BCD is a company specialized in the digital marketing and digital communications sector;
II. Client wishes to procure from BCD the software services described herein, and BCD wishes to provide such services to Client, each on the terms and conditions set forth in this Agreement.
Now therefore, the parties agree as follows
1. Recital, exhibits and external links
The recitals, the exhibit and the external links to the Agreement constitute an integral and substantive part hereof.
When used in this Agreement, the following terms in capital letters shall have the meaning stated in this section.
- Access Credentials
means any username, identification number, password, license or security key, security token, 2FA, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services.
- Additional Features
means any additional features or tools that can be optionally added upon Client’s request to the Subscription Plan.
- Additional Features Fees
means any fees for any Additional Features as listed on the pricing page on the BCD Web site at https://beefree.io.
means any person, corporation, or other legal entity that, directly or indirectly, controls, is controlled by, or is under common control with BCD. For this purpose, “control” shall mean (i) possession, direct or indirect, of the power to direct or cause direction of the management and policies of a party, whether through voting securities, by contract or other means; and/or (ii) ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding equity or voting shares of a party.
means these terms and conditions.
- Authorized User
means each of the professional users authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement, and solely in connection with Authorized User professional business and for purposes related thereto.
- Availability Requirement
is defined in Section 10.1.
- BCD’s Trademarks
means the BCD verbal and design trademark, the BCD verbal and design trademark and derivatives thereof.
- BCD Disabling Device
means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by BCD or its designee to disable Client’s or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of BCD or its designee.
- BCD Materials
means the Service Software, Specifications, Documentation and BCD Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by BCD or any Subcontractor in connection with the Services, including any third party materials licensed to BCD, or otherwise comprise or relate to the Services or BCD Systems. For the avoidance of doubt, BCD Materials include Resultant Data and any information, data or other content derived from BCD's monitoring of Client's access to or use of the Services, but do not include Client Data.
- BCD Systems
means the information technology infrastructure used by or on behalf of BCD in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by BCD or through the use of third-party services.
- Billing Period
means the interval of time selected by Client from the end of one billing statement date to the next billing statement date.
- Client Data
means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Client or an Authorized User by or through the Services.
- Client Systems
means the Client's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services.
is defined in Section 3.7.
means documentation provided by BCD in electronic format to the Client.
- Effective Date
means the date this Agreement comes into effect, as notified by BCD to the Client with an email sent to the email address provided by the Client in the Registration Form and that the Client declares to periodically check.
means a periodic fee equal to the sum of Subscription Fees, Hosting Fees and Additional Features Fees, computed and charged to the Client’s payment account at the time of Renewal or pro rata at the time of purchase.
- Free Plan
is defined in Section 3.6.
- Harmful Code
means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Client or any Authorized User from accessing or using the Services or BCD Systems as intended by this Agreement. Harmful Code does not include any BCD Disabling Device.
- Hosted Images
means images that are included in the content created with the Service and that are hosted and delivered by the Service at the time the content is viewed.
- Hosting Fees
means that portion of the Fees calculated based on the amount of data that is transferred when Hosted Images are delivered at the time the content is viewed. Hosting Fees are calculated based on the Image Hosting Fees pricing table available on the BCD Web site at https://beefree.io/. There are no Hosting Fees associated with Local Images.
- Intellectual Property
means all current and future copyright, patents, utility models industrial designs, trademarks, domain names, database right and other intellectual property rights, whether or not capable of registration, whether or not registered, and applications of any of the foregoing and all intellectual property rights whether now known or created in the future.
- Applicable Laws
means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data that are applicable to a particular Party’s performance under this Agreement.
- Local Images
means images that are included in the content created with the Service and that are not hosted by the Service, but rather included in a compressed file when the content is downloaded by the User, and then hosted by the User.
means 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 and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- One-Time Services
is defined in Section 3.7.
- Permitted Use
means any use of the Services by an Authorized User for the benefit of Client solely in or for Client's internal business operations / solely for the purpose of digital marketing or digital communications.
- Professional Services
is defined in Section 3.7.
- Registration Form
means the registration form available at https://beefree.io/app/signup/.
is defined in Section 8.2.
- Resultant Data
is defined in Section 23.
is defined in Section 3.1.
- Service Software
means the BCD software as a service application (including new versions, modifications, enhancements, improvements, updates, revisions, additions, derivative works, documentation and related material), used to create email messages, documents and landing pages using a drag-and-drop user interface, which BCD provides remote access to and use of as part of the Services.
is defined in Section 3.7.
- Subscription Fees
means the pre-Authorized User amount for the selected Subscription Plan, as listed on the pricing page on the BCD Web site at https://beefree.io/plans-pricing, times the number of Authorized Users active during the Billing Period immediately prior to Renewal.
- Subscription Plan
means the specific Service Software subscription plan chosen by the Client among the different subscription plans available at https://beefree.io/.
is defined in Section 8.1.
means an initial free trial period of fifteen (15) days during which the Client may verify the functionalities of the Service Software and during which the Client may withdraw at any time, without any commitment or cost.
means https://beefree.io, including any third-level-domain and sub-domains.
is defined in Section 7.2.
Subject to and conditioned on Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, BCD shall use commercially reasonable efforts to provide to Client and its Authorized Users the services identified in the Subscription Form and this Agreement (collectively, the “Services”) substantially in accordance with the specifications available at https://support.beefree.io/hc/en-us and as set forth therein (“Specifications”) and the terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Client and its Authorized Users in substantial conformity with the Specifications, 24 hours per day, seven days per week every day of the year, except for:
- Scheduled Downtime in accordance with Section 10.2;
- Service downtime or degradation due to a Force Majeure Event;
- Any other circumstances beyond BCD’s reasonable control, including Client’s or any Authorized User’s use of Third Party Materials, misuse of the Services, use of the Services other than in compliance with the express terms of this Agreement and the Specifications, or unavailability of cloud or network services;
- Any suspension or termination of Client’s or any Authorized Users’ access to or use of the Services as permitted by this Agreement.
3.2 Service and System Control.
Except as otherwise expressly provided in this Agreement, as between the Parties: (a) BCD has and will retain sole control over the operation, provision, maintenance and management of the Services and BCD Materials, including the: (i) BCD Systems; (ii) location(s) where any of the Services are performed; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Service maintenance, upgrades, corrections and repairs; and (b) Client has and will retain sole responsibility for all access to and use of the Services and BCD Materials by any person, including any: (i) information, instructions or materials provided by any of them to the Services or BCD; (ii) results obtained from any use of the Services or BCD Materials; and (iii) conclusions, decisions or actions based on such use.
BCD reserves the right, in its sole discretion, to make any changes to the Services and BCD Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of BCD’s services to its clients, (ii) the competitive strength of or market for BCD’s services, or (iii) the Services’ cost efficiency or performance; or (b) to comply with Applicable Laws.
BCD may from time to time in its discretion engage third parties to perform Services (each such third party, a “Subcontractor”).
3.5 Suspension or Termination of Services.
BCD may, directly or indirectly, and by use of any BCD Disabling Device or any other lawful means, suspend, terminate or otherwise deny Client’s, any Authorized User’s or any other person's access to or use of all or any part of the Services or BCD Materials, without incurring any resulting obligation or liability, if: (a) BCD receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires BCD to do so; or (b) BCD believes, in its sole discretion, that: (i) Client or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 3.5 does not limit any of BCD's other rights or remedies, whether at law, in equity or under this Agreement.
3.6 Free Plan.
The Client may have access to the basic functionality of the Service Software if it elects to subscribe to the no-charge limited plan (the “Free Plan”). The Free Plan shall be regulated by the provisions of this Agreement, except as otherwise provided herein.
3.7 Professional Services.
The Client may order from BCD rights to access and use Service Software-related professional services (“Professional Services”). Where applicable, BCD, directly or through its third-party providers, will perform the Professional Services set forth in the applicable Offer (if any). The particulars of each Professional Services engagement will be as set forth in executed statements of work (each an “SOW”) entered into by the Parties. Certain Professional Services projects which are discreet in nature may be provided to the Client on a one-time basis without an executed SOW (“One-Time Services”). All Professional Services, including without limitation the One-Time Services, shall be subject to the terms of this Agreement. BCD will retain all right, title and interest in and to all deliverables (including any and all Intellectual Property rights therein) provided under each SOW (“Deliverables”) except to the extent that the Deliverables contain any pre-existing Client Intellectual Property, or as otherwise agreed between the Parties in the applicable SOW.
Subject to and conditioned on Client's payment of the Fees and compliance with this Agreement, BCD hereby authorizes Client to access and use, during the Term, the Services and such BCD Materials as BCD may supply or make available to Client solely for the Permitted Use by and through Authorized Users in accordance with the Specifications and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.
4.2 Reservation of Rights.
Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, or BCD Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services and the BCD Materials are and will remain with BCD and its licensors.
5. Client Obligations
5.1 Client Systems and Cooperation.
Client shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the specifications all Client Systems on or through which the Services are accessed or used; (b) provide BCD personnel with such access to Client Systems as is necessary for BCD for troubleshooting and to perform the Services in accordance with the Availability Requirement and specifications; and (c) provide all cooperation and assistance as BCD may reasonably request to enable BCD to exercise its rights and perform its obligations under and in connection with this Agreement.
5.2 Effect of Client Failure or Delay.
BCD is not responsible or liable for any delay or failure of performance caused in whole or in part by Client's delay in performing, or failure to perform, any of its obligations under this Agreement.
5.3 Corrective Action and Notice.
If Client becomes aware of any actual or threatened activity prohibited by Section 6 below, Client shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and BCD Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify BCD of any such actual or threatened activity.
6. Use Policy
The Client shall not, and shall not permit any other person to, access or use the Services or BCD Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:
- Directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to access the source code of the BCD Services or Materials, or underlying structure, ideas, or algorithms of the Software or any software, documentation, or data related to the Software; modify, translate, or create derivative works based on the Software, except and only to the extent that such activity is expressly permitted by this Agreement; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software to any person, including on or in connection with the use of Software for timesharing or service bureau purposes, software as a service, cloud or other technology or service; or otherwise for the benefit of a third party unless specifically authorized by BCD;
- Bypass or breach any security device or protection used by the Services or BCD Materials or access or use the Services or BCD Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- Remove or alter the BCD’s trademarks, or any trademark, copyright or other proprietary notices, legends, symbols or labels in the Software;
- Display or integrate any advertisements on the Software;
- Use the Software in connection with sending unsolicited email messages, also known as spamming. Use of the Services for sending bulk or transactional email is prohibited. The email sending feature included in the Services is intended strictly and only for the purpose of sending a test message. Test sending is limited in the number of messages that can be sent at the same time and within a period of time (such limits may change). Any attempt to use the Services for the purpose of sending solicited or unsolicited bulk or transactional email will result in immediate termination of this Agreement;
- Send address test e-mails to e-mail addresses which, although corporate, refer to natural persons (e.g. email@example.com): the Client shall send test messages exclusively to generic and not personal email addresses (e.g. firstname.lastname@example.org);
- Communicate or disseminate any personal data and information by inserting those personal data and information in the sent test messages;
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others;
- Distribute or disseminate any information or materials that are inappropriate, profane, defamatory, obscene, indecent, unlawful, or injurious, or contain, transmit or activate any Harmful Code;
- Use the Software to upload, or otherwise make available, files that contain images, photographs, software or other material protected by Intellectual Property laws or privacy laws unless the Client owns or controls the rights thereto or has received all necessary consent to do the same;
- Use any material of information, including without limitation images or photographs, which are made available through the Software in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any third party;
- Input, upload, transmit or otherwise provide to or through the Services or BCD Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, BCD Systems or BCD's provision of services to any third party, in whole or in part;
- Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of the Software or other material contained in a file that is uploaded;
- Violate any Applicable Laws; or
- Otherwise access or use the Services or BCD Materials beyond the scope of the authorization granted under Section 4.1.
7.1 BCD Systems and Security Obligations.
BCD will employ security measures in accordance with applicable industry practice ("Privacy and Security Policy"). BCD maintains ISO 27001 and other quality management certification and security programs with respect to the Services.
Client’s Subscription Plan may support logins using two-factor authentication ("2FA"), which is known to reduce the risk of unauthorized use of, or access to, the Services. If the feature is available to the Client, it is shown in the "Profile" section of any Authorized User's account. Whenever the feature is available to any Authorized User, BCD requires the use of 2FA to provide increased security on the Internet. The Client agrees to conform to the use of the 2FA software that is provided by BCD, to keep its software up to date to support 2FA, and to instruct its employees on the importance of complying with 2FA security requirements. BCD will not be responsible for any Losses incurred by Client or anyone else if any event leading to such Losses would have been prevented by the use of 2FA.
7.3 Client username and password.
The Client shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to maintain the confidentiality of its account and password, and the Client agrees to notify BCD promptly of any known unauthorized access or of any reasonably suspected breach of its account’s security. The Client shall be liable for Losses incurred by BCD and/or another party due to a third party using the Client’s account or password.
8. Effective Date, Term, Termination
8.1 Initial Term.
This Agreement will be effective commencing on the Effective Date and will remain in effect for the duration of one Billing Period as selected by the Client (the “Initial Term”) unless and until terminated according to the provisions of this Section 8.
This Agreement will automatically renew (“Renewal”) for additional successive terms having a duration equal to the Billing Period (such successive terms, together with the Initial Term, the “Term”), unless earlier terminated pursuant to this Agreement's express provisions or the Client gives notice of non-renewal by using the “Cancel my subscription” tool, which will be effective at the expiration of the current Billing Period. In consideration of the availability of the Services, the Client will be required to pay the Fees for the entire current Billing Period, even if it does not use the service.
In addition to any other express termination right set forth elsewhere in this Agreement,
- BCD may terminate this Agreement for no reasons by giving written notice to the Client prior to, and effective as of, the expiration of the current Billing Period;
- BCD may terminate this Agreement effective on written notice to Client, if Client: (i) fails to pay any amount when due hereunder, and such failure continues for more than seven (7) days after BCD's written notice thereof; or (ii) breaches any of its obligations under 5 (Client Obligations), Section 6 (Use Policy), or Section 21 (Confidential Information);
- 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 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;
- Either BCD or Client may terminate a Free Plan at any time effective on written notice to the other Party.
8.4 Effect of Expiration or Termination.
Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
- All rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate;
- Client will immediately lose access to Client Data; it will be Client’s sole responsibility to ensure that Client Data are exported from the BCD Systems during the applicable Term;
- BCD (i) shall immediately cease all use of any Client Data or Client's Confidential Information, (ii) at Client's written request, shall destroy all documents and tangible materials containing, reflecting, incorporating or based on Client Data or Client's Confidential Information; and (iii) may permanently erase all Client Data and Client's Confidential Information from all systems BCD directly or indirectly controls, unless legally prohibited from doing so, provided that, for clarity, the provisions of this Section 8.4(c) do not apply to any Resultant Data;
- Client shall immediately cease all use of any Services or BCD Materials and (i) at BCD's written request destroy all documents and tangible materials containing, reflecting, incorporating or based on BCD's Confidential Information; and (ii) permanently erase BCD's Confidential Information from all systems Client directly or indirectly controls;
- Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information solely to the extent and for so long as required by Applicable Laws; (ii) BCD may also retain Client Data in its backups, archives and disaster recovery systems until such Client Data is deleted in the ordinary course; and (iii) all information and materials described in this Section 8.4(e) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
- BCD may disable all Client and Authorized User access to the Services and BCD Materials;
- If BCD terminates this Agreement pursuant to Sections 3.5, 8.3(b), 8.3(c), or 8.3(d) all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Client shall pay such Fees, together with all previously accrued but not yet paid Fees, on receipt of BCD's invoice therefor.
9. Fees and Payments
The Client shall pay the Fees in accordance with this Section 9.
Client shall pay the Fees for the Initial Term no later than the Effective Date. Client shall pay the Fees for any Renewal on or prior the Renewal date of each Billing Period in advance. The payment shall be made by the payment methods indicated on the Website or agreed with BCD. In the event of payment via credit card, BCD is hereby authorized to implement a recurring credit card payment of the Fees by processing an automatic pre-authorized charge of the amount of the Fees for the use of the Software for the Billing Period, subject to termination which may be effected by the Client in accordance with the procedures and timeframes provided under Section 8. The Fees will be adjusted to reflect any increase in the number of Authorized Users, Additional Features and Hosting Fees in the previous Billing Period. For monthly plans, no Fees will be credited at the end of a Billing Period if the Subscription Plan changes, if the number of Authorized Users decreases or if any Additional Feature is turned off.
9.3 Failure to Pay.
If upon automatic Renewal of this Agreement the pre-authorized charge were unsuccessful for any reason (merely by way of example and without any limitation: expired credit card or inexistence of the necessary funds), BCD shall inform Client via email notice sent to the email address provided by Client . Client shall have seven (7) calendar days from receipt of such notice to cure the breach. If the breach is not cured within such seven (7) calendar day period, BCD shall have the right to suspend performance of the Services without further notice without incurring any obligation or liability to Client or any other person by reason of such suspension, block access and use of the Software, and to terminate this Agreement pursuant to Section 8.3(b) without prejudice to BCD’s further rights. The Parties agree that in the event of delay in the payment of the Fees, BCD may charge interest at a rate of 1.5% per month, or the highest rate allowed by Applicable Laws, whichever is lower. Client shall reimburse BCD for all reasonable costs incurred by BCD in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees.
9.4 Annual Billing Period and outstanding Fees.
If Client incurs Authorized User Fees, Additional Feature Fees and Hosting Fees higher than $1,000 at any time during the Billing Period, BCD reserves the right to process a new payment demand.
All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and assessments. Client is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on BCD's income.
9.6 No Deductions or Setoffs.
All amounts payable to BCD under this Agreement shall be paid by Client to BCD in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
9.7 Fees Increases.
BCD may increase the Fees or introduce Fees for the Free Plan by providing written notice to Client at least thirty (30) days before the commencement date of any Billing Period.
10. Service Levels and Support
10.1 Service Levels.
Subject to the terms and conditions of this Agreement, BCD will use commercially reasonable efforts to make the Services Available at least ninety-nine percent (99.0%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below in this Section 10 (the "Availability Requirement"). "Available" means the Services are available for access and use by Client and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and the Services will be not considered un-Available in connection with any failure to meet the Availability Requirement or impaired ability of Client or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (a) act or omission by Client or any Authorized User, or using Client's or an Authorized User's Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Client Failure; (c) Client’s or its Authorized User's Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by BCD pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to Section 3.5.
10.2 Scheduled Downtime.
BCD will use commercially reasonable efforts to give Client at least five (5) days prior notice of all scheduled outages of the Services ("Scheduled Downtime").
10.3 Service Support.
BCD will use its best efforts to provide standard support services to the Client (“Support Services”) in accordance with the BCD best practices in effect from time to time through: a) online manuals and other documentation available at https://support.beefree.io/; BCD may amend such manuals and other documentation from time to time in its sole discretion; and b) online community available at https://support.beefree.io/hc/en-us/community/topics.
10.4 BCD Enterprise Support.
For BCD Enterprise Plans, BCD will provide Client with Support Services in accordance with the terms and conditions available at Enterprise Support.
10.5 Data Backup.
The Services do not replace the need for Client to maintain regular data backups or redundant data archives. BCD HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CLIENT DATA.
11. Representations and Warranties
11.1 Warranties by the Client.
The Client represents and warrants that:
- It has full power and authority to enter into and fully perform this Agreement.
- Client's services, products, materials, contents of the messages, data, and information used by Client in connection with this Agreement and the Software does not as of the Effective Date, and will not during the Term of this Agreement, operate in any manner that would violate any Applicable Laws.
In the event of any breach, or reasonably anticipated breach, of any of Client’s warranties herein, in addition to any other remedies available at law or in equity, BCD will have the right to immediately suspend the access and use of the Software if deemed necessary by BCD its sole discretion to prevent any harm to BCD or its business.
11.2 Warranties by BCD.
BCD represents and warrants that:
- It has full power and authority to enter into and fully perform this Agreement;
- It shall provide the Services in a manner consistent with generally accepted industry standards, and
- It will not knowingly introduce any Harmful Code into the Service Software.
In the event of non-conformance with the warranties in this Section 11.2, BCD will use commercially reasonable efforts to correct such non-conformance. If BCD cannot correct such non-conformance within thirty (30) days from the date Client notified BCD of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If Client terminates the Agreement for this reason, BCD will promptly refund any prepaid but unused fees covering use of the Service after termination. BCD shall not have any obligation or liability under this Section 11.2 if the non-conformity is caused by or based on: (i) any combination of the Service Software with any hardware, software, equipment, or data not provided by BCD, (ii) modification of the Service Software by anyone other than BCD, or modification of the Service Software by BCD in accordance with specifications or instructions provided by Client, or (iii) misuse or use of the Service Software in violation of or outside the scope of this Agreement.
EXCEPT FOR THE FOREGOING AND AS PROVIDED IN SECTION 10, THE SERVICE SOFTWARE AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CLIENT'S USE OF THE SOFTWARE IS AT ITS OWN RISK. BCD DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BCD DOES NOT WARRANT THAT THE SERVICE SOFTWARE AND THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. WITHOUT LIMITING THE FOREGOING, BCD MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE SOFTWARE, THE SERVICES OR BCD MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT'S OR ANY OTHER PERSON'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, RELIABLE, AVAILABLE, TIMELY, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
11.4 Exclusions and Disclaimers Applicable to FREE PLAN.
The provisions of Sections 10.1 (Service Level), 10.2 (Scheduled Downtime), 10.4 (BCD Enterprise Support), 11.2 (Warranties by BCD), 12.2 (BCD Indemnification) and 13 (Limitation of Liability) shall not apply to Free Plans. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, BCD DISCLAIMS ALL OBLIGATIONS OR LIABILITIES WITH RESPECT TO FREE PLANS, INCLUDING ANY SUPPORT SERVICES, WARRANTY, AND INDEMNITY OBLIGATIONS. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, BCD’S MAXIMUM AGGREGATE LIABILITY IN RESPECT OF FREE PLANS WILL BE US$15.00.
12.1 Client’s Indemnification.
The Client shall indemnify, defend and hold harmless BCD and its Subcontractors and Affiliates, and each of their respective officers, directors, employees, agents, successors and assigns (each, a "BCD Indemnitee") from and against any Losses incurred or suffered by such BCD Indemnitee incurred as a result of any third party claim arising from (i) Client’s and/or any of its Users’ violation of this Agreement or Applicable Laws; (ii) Client Data, including any processing of Client Data by or on behalf of BCD in accordance with this Agreement, and including any claim that the use of Client Data by BCD and/or any of its subcontractors, infringes or violates any third party’s rights, including, without limitation, Intellectual Property Rights, privacy or publicity rights; (iii) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client or any Authorized User, including other materials or information developed by BCD to the extent in compliance with any specifications or directions provided by or on behalf of Client or any Authorized User; (iv) the unauthorized use of the Services by any other person using Client’s Access Credentials and (v) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any Authorized User, or any third party on behalf of Client or any Authorized User, in connection with this Agreement.
12.2 BCD’s Indemnification.
BCD shall indemnify, defend and hold harmless Client from and against any and all Losses incurred by such Client arising out of or relating to any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of Client) that Client's or an Authorized User's use of the Services (excluding Client Data and third party materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The above indemnification obligation does not apply:
- if the total aggregate fees BCD receives with respect to Client’s subscription hereunder in the twelve (12) month period immediately preceding the Action is less than US$40,000;
- if the Services or BCD Materials are used in combination with any hardware, software, network, service or equipment or other materials or service not provided or authorized in the Specifications or otherwise in writing by BCD, but solely to the extent the alleged infringement is caused by such combination;
- to modification of the Services or BCD Materials other than: (i) by or on behalf of BCD; or (ii) with BCD's written approval in accordance with BCD’s written specification; or
- in case of failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client by or on behalf of BCD.
12.3 Indemnification Procedure.
Each Party shall promptly notify the other Party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under Section 12 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
If any of the Services or BCD Materials are, or in BCD 's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Rights as provided in Section 12.2, or if Client's or any Authorized User's use of the Services or BCD Materials is enjoined or threatened to be enjoined in connection with an alleged violation of such Intellectual Property Right pursuant to Section 12.2, BCD may, at its option and at its sole cost and expense:
- obtain the right for Client to continue to use the Services and BCD Materials substantially as contemplated by this Agreement;
- modify or replace the Services and BCD Materials, in whole or in part, to seek to make the Services and BCD Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and BCD Materials, as applicable, under this Agreement; or
- by written notice to Client, terminate this Agreement and require Client to immediately cease any use of the Services and BCD Materials.
THIS SECTION 12 SETS FORTH CLIENT'S SOLE REMEDIES AND BCD'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND BCD MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
13. Limitation of Liability
13.1 EXCLUSION OF DAMAGES.
IN NO EVENT WILL EITHER PARTY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2 CAP ON MONETARY LIABILITY.
EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL THE AGGREGATE LIABILITY OF BCD AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
13.3 Unauthorized Access.
BCD shall not be responsible for any Losses incurred by Client, Authorized Users, or any other person if any event leading to such Losses would have been prevented by the use of 2FA. Additionally, Client is responsible for all Access Credentials for administrator accounts as well the accounts of Client’s Authorized Users. BCD will not be responsible for any Losses incurred by Client, Authorized Users, or any other person, if such information is not kept confidential by Client or its Authorized Users, or if such information is used by an unauthorized third party logging into and accessing the Service Software.
The Client recognizes that BCD is always innovating and finding ways to improve the Service Software with new features and services. Therefore, the Client agrees that the Service Software may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Service Software.
15. Force Majeure
BCD may not be deemed in any way liable for failure to perform this Agreement caused by factors falling outside its reasonable control (a “Force Majeure Event”) including without limitation acts of God, uprisings, acts of terrorism and war, strikes, labor stoppages or slowdowns or other industrial disturbances, electrical, internet, telecommunication, or cloud computing service provider outage, riots, tornadoes, hurricanes, floods, mudslides and landslides fire, earthquake or explosion, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power, telecommunications or transportation.
The Client may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of BCD. Any attempted assignment or delegation without such consent will be void. BCD may assign this Agreement in whole or part without Client’s consent upon fifteen (15) days prior written notice to the Client. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
17. Ownership of the Service Software
17.1 Services and BCD Materials.
All right, title and interest in and to the Services and BCD Materials, including all Intellectual Property Rights therein, are and will remain with BCD or BCD licensor’s, as applicable. Client has no right, license or authorization with respect to any of the Services or BCD Materials except as expressly set forth in Section 4.1, in each case subject to Section 5. All other rights in and to the Services and BCD Materials are expressly reserved by BCD and the respective third-party licensors. In furtherance of the foregoing, Client hereby unconditionally and irrevocably assigns to BCD all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
17.2 Client Data.
As between Client and BCD, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all Client Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 17.3.
17.3 Consent to Use Client Data.
Client hereby irrevocably grants all such rights and permissions in or relating to Client Data: (a) to BCD, its Subcontractors and the BCD personnel as are necessary or useful to perform the Services; and (b) to BCD as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
18. Data Protection
Each Party undertakes to comply with the data protection legislation applicable at the time and place and to process all personal data and information of the other Party, its legal representatives and/or employees and/or collaborators to which it may have access in the context of the conclusion and execution of this Agreement, solely for specified and legitimate purposes.
The Client acknowledges that during the performance of this Agreement, BCD does not process personal data and information on behalf of the Client as a Data Processor, as it acts autonomously as Data Controller establishing the purposes and means of the processing operations.
BCD’s Services are not intended to process personal data and shall not be used to process personal data. BCD declines any liability with respect to any independent upload by Client or Client’s Users of personal data within BCD’s Software, in violation of Section 6, subparagraphs F and G. BCD declines any liability that may derive from any accidental and unintended access to such personal data or from being considered as a data processor of personal data on Client’s behalf.
19. Tax Costs
Any tax cost deriving from the performance of this Agreement, including taxes for advertising activities, shall be borne by the Client.
Any notice to the Client will be effective when BCD sends it to the last email or physical address the Client provided to BCD or when posted on BCD’S website. The Client is aware and accepts that, for purposes of providing notice, BCD may use any email or physical address within the Client's account, including contact information associated with an account’s primary contact, billing contact information, owner profile, or any other profile or contact associated with the account. Any notice to BCD will be effective when receipt by BCD in compliance with this Agreement at the following address:
Bee Content Design, Inc.
to the address indicated at the following page: https://beefree.io/contact/
The Parties hereby agree that: (a) words in electronic form shall be deemed to be “writing” for the purposes of all Applicable Laws where “writing” is required; and (b) electronic evidence shall be admissible in any court or other quasi-judicial proceedings between the Parties.
21. Confidential Information
Each Party acknowledges that it will have access to certain confidential information of the other party concerning the other Party's business, plans, clients, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information includes, without limitation, trade secrets, ideas, processes, formulae, computer software (including source code), algorithms, data, data structures, scripts, applications, programming interfaces, protocols, know-how, copyrightable material, improvements, inventions (whether or not patentable), techniques, strategies, business plans, product development plans, timetables, forecasts, client and supplier lists, product and/or service designs, specifications and schematics, product and/or service costs, product and/or service prices, product and/or service names, financial information, employee information, marketing plans, business opportunities, research activities and results, market research activities and results, and development activities and results. Each Party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and shall take reasonable precautions to protect the confidentiality of such information.
Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) the receiving party can demonstrate by written or other documentary records is independently developed by the receiving party without reference to or use of any Confidential Information.
The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 6 (Use Policy), Section 8.4 (Effect of Expiration or Termination), Section 9 (Fee and Payments), Section 11 (Representations and Warranties), Section 12 (Indemnification), Section 13 (Limitations of Liability), Section 17 (Ownership of the Service Software), Section 21 (Confidential Information), Section 23 (Ownership of Resultant Data), Section 28 (Miscellaneous), Section 29 (Governing Law, Venue and Jurisdiction) and this Section 22.
23. Ownership of Resultant Data
BCD will derive aggregated data, information, or other content by or through the Services from processing Customer Data, which is sufficiently different from such Client Data and cannot be identified from the inspection, analysis or further processing of such data, information, or content (the “Resultant Data”). BCD will assure the full anonymization of the Resultant Data to avoid any processing and diffusion or communication of personal data of the Client. Client authorizes BCD to use the Resultant Data in order to contribute to the improvement of the Service Software and the production of statistical information that may be published by BCD in aggregate form. BCD reserves the right at all times to disclose the Resultant Data as it deems necessary to satisfy any Applicable Laws, legal process or governmental request.
24. Storing and cancellation of the Client’s data
BCD shall not (i) transfer or make available to third parties the contents of the messages and the addresses of the recipients of the messages sent by the Client through the Service Software, whether in whole or in part, temporarily or permanently; (ii) use the same in any manner whatsoever except for statistical purposes and to improve the Service Software; (iii) keep a copy of the same, except the copy that is essential for the functioning of the Service Software and as permitted by Applicable Laws.
25. Validity of amendments and supplements
BCD may unilaterally amend or supplement this Agreement. All amendments or supplements will be effective from the moment in which BCD notifies Client of the amendment or supplement by email and makes available the new version of this Agreement on the Website, or when accepted online by Client. Any subsequent use of the Service Software shall be deemed an acceptance by Client of the same amendments and/or supplements.
The Client hereby acknowledges and accepts that BCD can use its name and logo in presentations, marketing materials, client lists and financial reports.
If Client receives access to the Service or Service features as alpha, beta or early access offering (collectively, “Betas”), use is permitted only for Client’s internal evaluation during the period designated by BCD (or if not designated, for 90 days). Betas are optional and either party may terminate Betas at any time for any reason or for no reason. Betas may be inoperable, incomplete, or include features that BCD may never release, and their features and performance information are BCD’s Confidential Information. Subject to the terms and conditions of this Agreement, BCD grants to Client a non-exclusive, revocable, non-sublicensable, non-transferable license to use Betas in accordance with the pertaining documentation, if any, solely for purposes of internal testing and evaluation. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BCD PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR BETAS AND ITS LIABILITY FOR BETAS WILL NOT EXCEED US$15.00. BETAS AND THE DOCUMENTATION, IF ANY, ARE STILL IN TESTING PHASE AND LICENSED “AS IS”. BCD DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, USABILITY OR FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABLE QUALITY, TITLE OR NON INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT AUTHORIZED BY LAW. CLIENT IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF BETAS AND/OR ACCOMPANYING DOCUMENTATION, IF ANY.
28.1 Entire agreement.
This Agreement, including the external links which constitute an integral part hereof, supersedes and cancels all previous agreements, understandings and negotiations, whether written or oral, between the Parties concerning the subject matter of this Agreement.
No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If one or more of the clauses of this Agreement is declared null and void or unenforceable by any judicial authority whatsoever or any competent authority, the remaining clauses of this Agreement shall continue to be valid and effective between the Parties, unless such clause constituted a determinant reason for the conclusion of this Agreement.
The headings contained in this Agreement or in any exhibit or schedule hereto, or linked document, as applicable, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
28.5 No relationship.
The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
The Client may provide or BCD may ask the Client to provide suggestions, comments, input or other feedback regarding the Services (“Feedback”). If the Client provides BCD with any Feedback, then Client grants BCD a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback as BCD sees fit. Any Feedback the Client chooses to provide is given entirely voluntarily. The Client is aware and accepts that it will not receive any compensation for its Feedback, and that BCD may use any Feedback Client provides to improve the Services or to develop new features and services, in BCD's discretion.
29. Governing Law, Venue and Jurisdiction
This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such State, without regard to the conflict of law principles of such State. Each party hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of California, San Francisco County, or (b) the United States District Court for the Northern District of California, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby or thereby. Each of Client and BCD agrees to commence any such action, suit or proceeding either in the United States District Court for the Northern District of California or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Superior Court of the State of California, San Francisco County. Each of Client and BCD irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby and thereby in (i) the Superior Court of the State of California, San Francisco County, or (ii) the United States District Court for the Northern District of California, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.