These Terms of Services are between the customer identified on the Quotation (the “Customer”; “you”) and BEEM Technologies Inc., with a registered address at 403-338 rue St-Antoine Est, Montreal (Québec), H2Y 1A3 (“BEEM”, “we”, “us”).
These Terms of Services define the legal relationship between you and us in connection with the Services. If you have any questions related thereto, you can reach us at email@example.com or call us directly at call us directly: 1 844 266-2336.
“Abuse(s)” has the meaning ascribed to it in Section 3(a).
“Account” means the accounts created pursuant to your subscription and used to operate and access the Services by your End Users.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to these Terms of Services. Control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Anti-Corruption Laws” has the meaning ascribed to it in Section 17.
“Anonymized Data” means (a) Personal Information which has been processed through an industry-standard de-identification technology or method and which, as a result, does not relate anymore to an identified or identifiable natural or moral person; (b) data that does not classify as Personal Information or Confidential Information and does not identify the Customer directly or indirectly and (c) aggregated data that does not identify the Customer directly or indirectly.
“Availability” means the Services are available for access and use as reasonably determined by BEEM. “Unavailability” means that the Services are not available for access and use as reasonably determined by BEEM, such as when critical functionalities cannot be accessed or used. Availability means the percentage corresponding to the Services’ availability during a month and is calculated as follows:
(total minutes of uptime in a month - total minutes for Exempted Downtime and Scheduled Downtime) / (total number of minutes in a month - total minutes for Exempted Downtime and Scheduled Downtime) x 100
“Change Order” has the meaning ascribed to it in Section 2(b).
“Confidential Information” means any and all information of a party (the “Disclosing Party”) which has or will come into the possession of the other party (the “Receiving Party”) concerning the business, properties, affairs or finances of the Disclosing Party, including proprietary information and trade secrets. Confidential Information must be indicated as confidential information, or it must be clear at the time of the disclosure that the information ought to be handled as Confidential Information.
“Convenience” has the meaning ascribed to it in Section 18 hereof.
“Customer Data” means any (i) Personal Information; (ii) data generated by or submitted through the Services by Customer (including by End Users). Notwithstanding anything to the contrary in these Terms of Services, Anonymized Data and Usage Data shall not be considered Customer Data.
“Documentation” means the documentation and other material made available to Customer (and End Users) in connection with our provision of the Services.
“End User(s)” means each user who is authorized by you to use and access the Services.
“Excluded Upgrade” has the meaning ascribed to it in Section 2(d).
“Exempted Downtime” has the meaning set forth in Section 4.
“Fees” has the meaning ascribed to it in Section 6(a).
“Force Majeure” has the meaning ascribed to it in Section 16.
“Intellectual Property” means any and all intellectual property, including without limitation, works, inventions (whether patentable or not), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analysis, software, models, research and development information, technical information, prototypes, specifications, patterns, drawings, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trade-marks and any and all proprietary rights provided under patent law, copyright law, trade mark law, design patent or industrial design law, semiconductor chip or mask work law, or any other statutory provision or civil or common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in any of the foregoing as well as any and all applications, registrations or other evidence of a right in any of the foregoing.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, provincial, territorial, municipal or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction, as amended from time to time.
“Notification Email Address” means the email address provided by you in the Quotation, which address is designated to receive notices from us.
“Quotation” means a Quotation describing the Services, the Fees and the Subscription Term. The Quotation can be a document or a webpage, as the case may be. The Quotation is issued by BEEM and accepted by Customer either through electronic means, signature or by the issuance of a purchase order.
“Output Document” has the meaning ascribed to it in Section 10(b).
“Personal Information” means any information that would meet the definition of “personal information” or “personal data” (or similar nomenclature) under applicable Law and that is (i) submitted through the Services by you or your End Users or (ii) collected or generated by the Services about End Users.
“Representatives” means a party’s Affiliates, subsidiaries, resellers, agents and subcontractors, as well as the respective employees, directors, officers and developers of each of these third parties, and those of the concerned party, as the case may be;
“Scheduled Downtime” has the meaning ascribed to it in Section 4.
“Security Breach” means any act or omission that materially compromises the security, confidentiality or integrity of Personal Information or Confidential Information.
“Service Level” has the meaning ascribed to it in Section 4.
“Services” means the services described in the Quotation and the Documentation, including a subscription to the cloud-based software-as-a-service platform Fleet by BEEM currently available at https://app.fleetbybeem.com, maintenance and support as described in these Terms of Services.
“Subscription Term” has the meaning ascribed to it in Section 18.
“Tax Deduction” has the meaning ascribed to it in Section 6(b).
“Term” has the meaning ascribed to it in Section 18 hereof.
“Terms of Services” means these Terms of Services, including the Quotation, Change Orders, amendments, addendums, schedules, and exhibits, if any.
“Third-Party Claim” means any third-party claim, lawsuit, action, or proceeding.
“Upgrade” has the meaning ascribed to it in Section 2(d).
“Usage Data” means data captured and/or generated by the Services about statistics, trends, performance and analytics, such as page views, performance statistics, errors occurrences, and electronic attributes of devices, such as browser name and version, operating system and country. Usage Data is generally used to improve our Services, monitor performance and understand popular features.
“Vehicle Manufacturers” means moral persons engaged in the manufacturing of automobiles or other vehicles, which provide you with automobiles or other vehicles in the conduct of your loan fleet business.
2. OUR SERVICES
(a) Performance of the Services.
Subject to your payment of applicable Fees and compliance with these Terms of Services, we will provide the Services and make the Services available to you during the Subscription Term, as applicable, the whole substantially in accordance with these Terms of Services.
(b) Quotations; Change Orders.
The Quotation shall have precedence over the remaining parts of the Terms of Services. Quotations may only be amended through a change order issued by BEEM and accepted or executed by customers, including through a purchase order (each a “Change Order”). In case of a conflict, Change Orders have precedence over Quotations and these Terms of Services. For the avoidance of doubts, if there is a conflict between an Quotation and a Change Order, the Change Order shall prevail.
We reserve our rights to make changes to the Services. In case of a material change, we will notify you via the Notification Email Address. Modifications to the Services shall not materially and adversely affect the performance of the Services in accordance with these Terms of Services.
We may need to modify these Terms of Services to adapt to new technologies, functionalities, regulatory requirements or otherwise based on our legitimate business needs. If we need to amend these Terms of Services, we will advise you through the Notification Email Address. If you continue to use the Services after such notice, we will consider that you accept the amendments to these Terms of Services. You may object to such modifications to these Terms of Services by reaching out to us at firstname.lastname@example.org and if you we cannot agree to a mutually acceptable modification, you may exercise your right to a termination with cause pursuant to Section 18.
(d) Upgrades; New Features
We may, from time to time, develop new modules, versions, functionalities or features to the Services (each an “Upgrade”). Upgrades are generally included with your subscription to the Services, except if we indicate otherwise (the “Excluded Upgrade”). Excluded Upgrades shall not include security patches and updates that are required for the Services to function substantially as described in these Terms of Services. You can add Excluded Upgrades to your Services through a Change Orders. Additional terms and conditions may apply to Excluded Upgrades.
(e) Account; Account Credentials
End Users must have an Account to access and use the Services. End Users are responsible for maintaining their credentials confidential, and BEEM shall not be responsible of an Account is compromised. If an End User’s credentials have been compromised, (i) the End User must change his or her password as soon as possible, and (ii) you must contact us to advise us that the credentials have been compromised so that we can conduct reasonable inquiries and any actions we may believe necessary to protect the Services, at our sole discretion. You agree to collaborate with us for such inquiries.
3. YOUR OBLIGATIONS AND RESPONSIBILITIES
(a) Acceptable Use
You represent and warrant that you will use the Services only for lawful purposes and in accordance with the foregoing rules. You agree that you will deploy commercially reasonable efforts to cause your End Users to use the Services in accordance with these rules. You shall remain entirely liable for all acts and omissions by your End Users, and any act or omission by such End User that would constitute a breach of these Terms of Services if taken by you will be deemed a breach of these Terms of Services by you.
You hereby represent and warrant that, unless expressly authorized in writing by us, you and your End Users will not use the Services in any manner:
(i) that is prohibited by Law or regulation or our policies made available to you, including these Terms of Services;
(ii) that will disrupt third parties’ use or enjoyment of the Services, including if this use results in automated, constant and repeated requests for data other than as permitted under these Terms of Services and has a negative effect on our systems or network, including abnormal usage that overloads servers or causes portions of our network to be blocked (e.g. denial-of-services and distributed-denial-of-services attacks);
(iii) that uses the Services to create, transmit, distribute or store material that violates Intellectual Property, privacy, publicity or other personal rights of individuals, export control laws or regulations, or that can otherwise be threatening, abusive, hateful or constitutes or encourages conduct that would be considered a fraud, a criminal offence or likely to give rise to civil liability;
(iv) that results in (A) the sharing of credentials, identifiers and passwords among End Users or among End Users and third parties and (B) the distribution, disclosure or use of any of the Services in any format to or by unauthorized third parties (i.e. other than End Users), including through any time-sharing service, service bureau, network or by any other means;
(v) that involves using any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithms, or methodology to access, acquire, copy or monitor the Services or any portion of the Services;
(vi) that involves decompiling, disassembling, or otherwise reverse engineering or attempting to reconstruct or discover any source code or ideas or algorithms of any of the Services underlying technology by any means whatsoever;
(vii) that involves penetrating our security, including, without limitation:
(A) by posting or transmitting any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features;
(B) by interfering with the proper working of the Services;
(C) by attempting to hack any security requirements or processes in the use of the Services;
(D) by attempting to access any part of the Services (or any of their related systems, networks, servers or other equipment) which you are not authorized to access;
(E) by attempting to disrupt in any manner the operation of the Services, its servers or network;
(F) by disobeying any requirements, procedures, policies or regulations of your network connected to the Services;
(G) by manipulating identifiers to disguise the origin of any content transmitted or uploaded on to the Services, or the source of any content;
(H) by modifying or altering the Services in any unauthorized manner.
(collectively, the “Abuses”).
You hereby agree and acknowledge that an indirect or attempted violation of this Section 3(a) shall be considered an Abuse. If we discover that you (or your End Users) are about to commit any Abuse (including by facilitating an Abuse), we may suspend part or all of the Services pre-emptively with or without prior notice. If no prior notice was given, we will send you a written notice as soon as practicable and will conduct an inquiry to reasonably determine if the suspension of Services should be maintained.
4. SERVICE LEVEL AGREEMENT
Subject to the other provisions of these Terms of Services, during the Term, we undertake to provide an Availability of 99.5% (the “Service Level”). The Service Level shall only apply to the components of the Services that are within our immediate control.
The Service Level does not apply in the following circumstances: by: (i) Customer’s fault, acts or omissions, a breach of these Terms of Services (including an Abuse); (ii) events that are not within the reasonable control of BEEM, such as a case of Force Majeure; (iii) Customer’s third party service providers (including Internet service providers’ downtime); (iv) Customer’s IT infrastructure and internal configurations (together, the “Exempted Downtime”). We reserve our rights to suspend the Services if you or an End Users breach these Terms of Services. We may, at our sole discretion and at any time, suspend the provision of the Services if necessary to comply with any applicable Law. Any such suspension shall be considered Exempted Downtime.
The Service Level excludes downtime that is caused by maintenance (“Scheduled Downtime”). We reserve up to eight (8) hours per month for Scheduled Downtime. Before proceeding with a Scheduled Downtime, BEEM will advise Customer at least forty-eight (48) hours in advance. Notwithstanding the foregoing, BEEM may not be able to provide advance notices in the case of emergency maintenance. Such emergency maintenance shall be included in the definition of Scheduled Downtime.
Only repetitive and significant breaches of the Service Level will be considered ground for a termination with cause pursuant to these Terms of Services.
We provide technical support through a live chat available on our public website, and within the Services. You can also e-mail us at email@example.com. Support requests that require follow-ups and maintenance work are classified per priority depending on their impact on the Services. We do not provide technical support for past versions of the Services. We respond to support requests made during office hours (9AM to 5PM ET), excluding statutory holidays in force in Quebec, Canada.
6. FEES; TAXES
(a) Fees; Payments; Reimbursements and Invoices
You agree to pay us the fees as described in the Quotation as consideration for our provision of the Services, the whole in accordance with this Section 6, and the payment terms set forth in the Quotation (the “Fees”). Any unpaid portion of the Fees past the due date are subject to interests of 1,5% monthly (approximately 19.56% annually). Customer shall be liable for all reasonable costs (including attorney’s fees) that BEEM may incur to recover unpaid Fees. The foregoing shall not apply if a portion of the Fees is disputed in good faith.
Customer agrees to pay the Fees within thirty (30) days of the invoice date, unless payment is made by credit card or through direct debit in your bank account, in which case, payment will be processed automatically by Delve based on the usual schedule for payments. If payment through direct debit in your bank account or through credit card is selected and authorized as a method of payment for the Fees, you hereby authorize us to debit the Fees from your bank account or credit card, as the case may be. You represent and warrant that you provided us with accurate and truthful financial information as required for us to debit the Fees in your bank account or on your credit card. Your further represent and warrant that you will inform us without undue delays of any changes to the financial information that you provided us with. You shall be responsible for any fees resulting from your failure to inform us of such changes, or for the fees engendered by BEEM if your payment is declined.
BEEM shall have no obligation to make specific payment methods available, and some payment methods may not be available to you. We may change our billing options at any time by advising you through the Notification Email Address at least thirty (30) days in advance.
The Services are non-reimbursable, and we have no obligations to refund any Fees already paid by you to us for any reasons whatsoever. In the event a Quotation or these Terms of Services are terminated, you may have certain obligations to continue to pay Fees, notwithstanding such termination, as further set forth in Section 18 below.
If BEEM is required by Law or by administration thereof to collect any applicable taxes from Customer, Customer shall pay such taxes to BEEM concurrent with and in addition to the payment of the Fees (and any other financial considerations payable pursuant to these Terms of Services), unless Customer qualifies for an exemption from any such applicable taxes, in which case, Customer shall, in lieu of payment of such applicable taxes to BEEM, deliver to BEEM such certificates, elections or other documented required by Laws or the administration thereof to substantiate and effect the exemption claimed by Customer. Where BEEM is not required by Law or the administration thereof to collect applicable taxes, Customer shall pay such taxes directly to the appropriate taxing authority and shall provide evidence of such payment to BEEM upon request.
Customer shall make all payments under these Terms of Services without any deduction or withholding for or on account of any taxes (“Tax Deduction”) unless a Tax Deduction is required by Law. If a Tax Deduction is required by Law then (i) where such Tax Deduction relate to any tax other than an income tax imposed on BEEM’s net income, the relevant amount payable by Customer hereunder shall be increased to the amount that would, following any required Tax Deduction, result in BEEM receiving the amount that would have been received if no Tax Deduction were required; (ii) Customer shall, promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction), notify BEEM accordingly and (iii) Customer shall timely remit the amount of such Tax Deduction to the appropriate taxing authorities. Customer will use commercially reasonable efforts to mitigate, reduce, or eliminate any Tax Deduction (including, but not limited to, by taking advantage of any reduced rate of tax provided for by any applicable international agreement for the avoidance of double taxation then in force).
7. INTELLECTUAL PROPERTY
We shall remain the sole and exclusive owner of all right, title, and interest, including all Intellectual Property, in and to the Services and the Documentation and in our and to our Confidential Information. Notwithstanding anything to the contrary, BEEM shall also be the sole owner of any suggestions, enhancement requests, recommendations or other feedback provided by Customer (or its End Users) to BEEM, so long as they relate to the Services, and Customer hereby assign to BEEM, without limitation of any kind, all of its rights, titles and interests therein, BEEM accepting such assignment. At our reasonable request and expense, you will complete and execute all necessary documents and take such other actions as we may reasonably require in order to assist us to acquire, develop and maintain our Intellectual Property in the Feedback. Customer shall remain the sole and exclusive owner of all right, title, and interest into its Intellectual Property.
8. CONFIDENTIAL INFORMATION
Confidential Information shall not include information which the Receiving Party can demonstrate: (i) is readily available to the public in the same form through no fault of the Receiving Party; (ii) did not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restrictions on disclosure, or (iii) did not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to disclosure to the Receiving Party by the Disclosing Party.
The Receiving Party shall only use the Confidential Information of the Disclosing Party for the purposes set forth in these Terms of Services and shall protect such Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care and confidentiality, which the Receiving Party utilizes for its own confidential information.
The Receiving Party shall take all reasonable steps necessary to ensure that the Confidential Information of the Disclosing Party is not made available or disclosed by it or by any of its Representatives to any third person except (i) as required by applicable Law, including a valid court order; (ii) with the prior written consent of the Disclosing Party; (iii) as authorized or reasonably inferred from these Terms of Services; or (iv) if the disclosure is made to the Receiving Party’s legal counsel, an auditor or as reasonably required in the course of the administration of a legal entity. The Receiving Party shall ensure that such third parties are subject to an adequate confidentiality undertaking.
(c) Obligation upon Termination
Upon the termination of these Terms of Services for any reason, the Receiving Party shall promptly either return all Confidential Information in its possession to the Disclosing Party or destroy such Confidential Information, at the option of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party is authorized to keep copies as required to comply with applicable laws, for its corporate records or as part of business continuity, in which case, the Receiving Party shall ensure the confidentiality and integrity of such Confidential Information as long as it is under the Receiving Party’s custody and securely delete such Confidential Information as soon as reasonably possible.
9. DATA MANAGEMENT
(a) Collection, Use and Disclosure of Personal Information
Each party is responsible for complying with applicable laws to the collection, use and disclosure of Personal Information. You must ensure that the Personal Information that you process through our Services are collected lawfully.
We will deploy commercially reasonable efforts to assist you to respond to individual privacy rights requests, such as the right to access or correct Personal Information, in accordance with applicable laws.
(b) Customer Data
You hold all rights, title and interest in and to all Customer Data. Notwithstanding the foregoing, and where explicitly stated on the Quotation, you agree and acknowledge that Customer Data may be shared with Vehicle Manufacturers. BEEM has no liability whatsoever for Customer Data that is shared with Vehicle Manufacturers. If the Services are terminated for any reason, we have no obligation of making Customer Data available to you. It is your responsibility to ensure that you download all Customer Data prior for the termination date. After the termination date, we will delete your Customer Data based on our usual retention periods.
(c) Information Security; Security Breach
BEEM will deploy commercially reasonable efforts to implement and maintain technical and organizational measures to protect the confidentiality, availability and integrity of Customer Data as adequate given the risks inherent to the processing. Such technical and organizational measures must aim at protecting Customer Data against unauthorized access or disclosure. These measures shall be substantially as described in the Documentation.
In the event of a Security Breach, we will notify you without undue delay upon becoming aware of a Security Breach through the Notification Email Address. We will provide you with adequate information and as required under applicable laws.
(a) Licences to Customer Data
You hereby grant us a revocable (but only pursuant to these Terms of Services), fully-paid, non-exclusive, royalty-free, limited and worldwide license to use Customer Data as may be necessary to provide the Services to you, as reasonably envisioned in these Terms of Services, or to exercise our rights and obligations under these Terms of Services.
(b) Licences to Output Documents
The Services may include the provision of reports, business intelligence or similar outputs (each an “Output Document”). We grant you a non-exclusive, non-sublicensable, non-transferable, limited license to reproduce, print, download and use all such Output Documents solely in accordance with these Terms of Services and for your and your Representatives’ legitimate business purposes. This licence shall survive the Term.
(c) Licenses to the Services
We grant you, for the Subscription Term, a non-exclusive, non-sublicenseable, non-transferable, revocable (but only pursuant to these Terms of Services) right and license to access and use (and allow your End Users to access and use) the Services for legitimate business purposes. All rights not expressly granted hereunder are reserved by BEEM. End Users may only use the Services provided Customer remains liable for its End Users. The Services are licensed, not sold.
You hereby agree that we may (i) publicly use your name and logo alongside the names and/or logos of other customers on our website, client lists, proposals, investor presentations and sales presentations; and (ii) that each party will get the prior written consent of the other party before issuing any press release.
You can you can reach us at anytime at firstname.lastname@example.org to withdraw your consent provided pursuant to this Section 11.
12. REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant that (i) you comply with all applicable laws, including those relating to the collect, use and disclosure of Personal Information, and that you have all appropriate and informed consent to use the Personal Information and for us to provide the Services; (ii) you will not export, re-export, distribute or otherwise transfer the Services or any technical information related thereto, directly or indirectly, to any country for which the competent authorities require an export license, other governmental approval or letter of assurance, without first obtaining such license, approval or letter, including, without limitation, any countries on Canada’s Area Control List or subject to the Canadian Economic Sanctions; and (iii) you will not export, re-export, distribute or otherwise transfer the Services or any technical information related thereto for an end use that is directly or indirectly related to the research, development or production of chemical, biological, or nuclear weapons or any missile programs for such weapons, or that otherwise disrupt international peace or is contrary to any restriction on end uses set for in applicable laws.
13. INDEMNITY; REMEDIES
You hereby agree to indemnify us, defend us and hold us harmless (including our Representatives) from and against any and all claims, penalties, fines, costs, expenses (including reasonable attorney’s fees), actions, damages, losses or liabilities directly or indirectly arising out of, related to, in connection with or resulting from (i) your or your End Users’ breach of these Terms of Services or applicable laws, including your collection, use and disclosure of Personal Information in violation of applicable laws, and (ii) your gross negligence, willful misconduct or fraud.
Except as provided in these Terms of Services, (i) we do not warrant that the Services will be uninterrupted or error free; (ii) we do not make any warranty as to the results that may be obtained from the use of the Services; (iii) BEEM is the sole authorized person to make any representations or warranties on its behalf; (iv) the Services are provided on an “as is”, “where is” and “as available” basis; (v) to the maximum extent permitted by law, we make no other representations, conditions, warranties or guarantees, express or implied, regarding the accuracy, quality, reliability or completeness of any outputs or information (including a Report) provided by or as a result of using the Services; and (vi) we expressly disclaim any and all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Unless stated otherwise in these Terms of Services, you hereby waive your rights in any of the foregoing warranties, representations or conditions, whether express or implied.
Customer is solely responsible for the accuracy, truthfulness and quality of Customer Data and any content or information directly or indirectly delivered through or passed through the Services by Customer (or its End Users). We exercise no control over and accept no responsibility for the accuracy, truthfulness and quality of Customer Data, including, without limitation, violations of Intellectual Property, applicable law and privacy rights. We are not liable for your collection, use or disclosure of Personal Information in violation of applicable laws.
You acknowledge and agree that any outputs (including Output Documents) produced by or obtained from the Services (or the use thereof) are for informational purposes only. We do not have any liability whatsoever for business decisions resulting from such outputs. You must ensure the outputs are accurate and consistent.
We do not operate the networks of, or have any control over the operations of, the wireless or other communications service providers through which you may access the Services. Accordingly, (a) we disclaim all responsibility and liability for or relating to your use of any such providers to access the Services and (b) we cannot guarantee the privacy or security of wireless data transmissions.
No other oral advices, written or electronically delivered information given by us or our Representatives shall create any warranty.
The Services may contain links to third party websites or content. We are not responsible for such third parties, including for integration partners and services integrated by an application programming interface (“API”). Integration partners are third parties and not suppliers. We do not conduct due diligence on integration partners, and we do not assess their information security and privacy practices. You are responsible for such due diligence and for provisioning your services with them.
15. LIMITATION OF LIABILITY
To the maximum extent permitted by law, neither party shall be liable to the other party or its Representatives for any loss of profits, or special, indirect, incidental, consequential or exemplary damages, in connection with the performance of the Services, or the performance of any other obligations under these Terms of Services, even if a party is aware of the possibility of occurrence of such damages.
Notwithstanding anything to the contrary, to the maximum extent permitted by law, our total liability to you for any damages arising out or in connection with these Terms of Services, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by you pursuant to a Quotation during the twelve (12)-month period preceding the event which gave rise to such damages.
16. FORCE MAJEURE
Except as it relates to the payment of the Fees, neither party shall be liable for delays in or failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake, epidemic, pandemic (including any additional consequences or situations arising from the outbreak of coronavirus COVID-19, regardless of whether these are known at the time of signature and notwithstanding anything to the contrary in these Terms of Services) or other natural disaster, strike or other labor disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence (a “Force Majeure”). Any delay resulting from a Force Majeure will result in an extension of the corresponding obligation for a period equal to the time lost by reason by such cause. For instance, if the Services are unavailable for a period of two (2) weeks as a result of a Force Majeure, then the Subscription Term shall automatically be extended by two (2) weeks. The parties shall advise each other as soon as possible in the event of a Force Majeure.
17. EXPORT CONTROL; ANTI-CORRUPTION
Each party shall comply with all applicable anti-bribery and anti-corruption Laws, including, without limitation, the Canadian Corruption of Foreign Public Officials Act and the U.S. Foreign Corrupt Practices Act of 1977, as amended (“Anti-Corruption Laws”). Neither party nor its Representatives is or has been the subject of any investigation or inquiry by any authorities with respect to potential or actual violations of anti-bribery Law. If a party has been subject to such investigation or inquiry, it represents and warrants that it has not been found in breach of applicable Law and that no charge has been retained against this party. Notwithstanding anything to the contrary, if either party takes any action that could constitute a violation of Anti-Corruption Laws, the other party may immediately terminate these Terms of Services.
Customer acknowledges that the Services may be subject to export laws, statutes and regulations and to export laws, statutes and regulations of other countries, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations and all administrative acts of the U.S. Government thereunder.
18. TERM; RENEWALS; TERMINATION
With respect to any Quotation, the subscription term may be on a fixed-term basis or on a rolling monthly basis, as further indicated in the applicable Quotation (the “Subscription Term”). The Subscription Term (whether on a fixed-term basis or on a rolling monthly basis) shall automatically renew for successive periods equal to the initial Subscription Term unless a written notice of non-renewal is delivered by one party to the other party at least 30 days prior to the expiry of the initial Subscription Term or applicable renewed Subscription Term.
Either party may terminate a Quotation by providing the other party with at least 30 days prior written notice of termination (a termination for “Convenience”), provided that in the event that the Customer is the party who terminates a Quotation for Convenience, the Customer shall continue to be responsible for, and shall pay to BEEM the Fees and other amounts owing hereunder for the applicable Subscription Term, notwithstanding the termination of the Quotation. Customer may, at its option, elect to pay such Fees and other amounts owing hereunder in one lump sum, or continue to may such Fees and other amounts owing hereunder on a monthly basis, until paid in full. By way of example, if a Quotation with a fixed 12 month Subscription Term is terminated by Customer for Convenience after 9 months, Customer shall continue to be liable for and shall pay to BEEM the Fees owing for the remaining 3 months of the Subscription Term. Alternatively, if a Quotation with a rolling monthly term is terminated by Customer for Convenience on day 15 of a monthly Subscription Term, Customer shall continue to be liable for and shall pay to BEEM the Fees owing for the following monthly Subscription Term.
The term of these Terms of Services begins upon the approval of these Terms of Services by Customer and continues until the expiry of all Subscription Terms for all applicable Quotations, including any renewals of any such Subscription Term, unless earlier terminated in accordance herewith (the “Term”).
Either party may terminate these Terms of Services for cause upon a ten (10) days’ prior written notice of a material breach of the Terms of Services to the other party, if such breach remains uncured at the expiration of such period. If these Terms of Services are terminated for cause by Customer, you agree to pay to BEEM the Fees due and payable in respect of the Services performed up to the date of termination. If these Terms of Services are terminated for cause by BEEM, you agree to immediately pay BEEM all Fees due until the end of the Subscription Term for each Quotation, including as a result of any renewal of a Subscription Term.
Notwithstanding anything to the contrary, these Terms of Services shall terminate immediately upon notice by BEEM if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Customer hereby irrevocably and expressly renounces to articles 2125 and 2129 of the Civil Code of Quebec, and acknowledges that its sole rights with respect to termination of these Terms of Services or any Quotation, are those set forth in this Section 18.
All applicable Quotations will terminate concurrently with the termination of these Terms of Services, provided that in the event of the termination of these Terms of Services or expiry of the Term, the provisions of Section 6 and this Section 18 which pertain to payment obligations, as well as Sections 7, 8, 10(b), 12, 13, 14, 15 and 19 will survive the Term or the termination of these Terms of Services or any Subscription Term, for any reason, along with any related definitions.
19. GOVERNING LAW; DISPUTE RESOLUTION
The validity, construction and performance of these Terms of Services and the legal relation between you and us shall be governed by and constructed in accordance with the Law of Quebec, Canada, and the federal Law applicable therein, without giving effect to any choice or conflict of law provision or rule (whether in Quebec or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of Quebec, Canada. Specifically excluded from application to the Terms of Services is that law known as the United Nations Convention on the International Sale of Goods.
Any legal suit, action or proceeding, arising out of the Terms of Services or any transactions hereunder shall be instituted exclusively in Montreal, Quebec, Canada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
20. GENERAL PROVISIONS
The waiver of a breach of any provision of these Terms of Services will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of these Terms of Services is in violation of any law, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. These Terms of Services describe the entire understanding of the parties and supersedes all oral and written agreements or understandings between them related to its subject matter.
The parties have required that these Terms of Services and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y attachent soient rédigés en langue anglaise.
We may assign these Terms of Services, in whole or in part, at any time in the context of a bona fide corporate reorganization, a sale of our assets, a merger and acquisition or bankruptcy filings. You may not assign these Terms of Services, or part of it, to any other person without our prior written approval, which shall not be withheld unreasonably. Any attempt by you to assign these Terms of Services without our consent is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Services or any part of the Services.