1.1. “Aggregated Data” means aggregated and anonymized End User Data.
1.2. “Beam App” means Beam’s mobile application accessed by users to enable such users to donate a portion of their purchases at participating retailers (each, a “Donation”) to charitable organizations (“Nonprofits”).
1.3. “Beam End User” means an individual who accesses the Beam App related to a purchase made from Client and has agreed to Beam’s online Term of Service (the “TOS”). A Beam End User’s use of the Beam Services is governed by the TOS.
1.4. “Beam End User Data” means data submitted by or collected from Beam End Users via the Beam App related to Beam End Users’ purchases from Client and any associated Donations.
1.5. “Beam Services” means the services provided to Client under this Agreement, as further described in Section 2 below.
1.6. “Client App” means Client’s mobile application made part of the Integration and accessed by Client End Users.
1.7. “Client Data” means the information, data, and other content, in any form or medium, that is submitted by or collected from Client through the Integration or any other means, including Client End Users’ data (“Client End User Data”), but excluding Beam End User Data and Usage Data.
1.8. “Client End User” means a customer of Client who accesses the Beam Services through the Client App and who has not signed the TOS.
1.9. “Client Service Provider” means Client’s third-party service provider who configures, enables, and manages the Integration on behalf of Client.
1.10. “End User” means Client End User and Beam End User.
1.11. “Integration” means the integration of the Beam App with the Client App via the Technology, which enables Client End Users to access the Beam Services through the Client App. All terms in this Agreement related to the Integration will apply only to the extent Client has purchased such Beam Services under an Order Form.
1.12. “IP Rights” means all patent, copyright, trademark, trade secret, rights in know-how, designs, and other proprietary and intellectual property rights recognized in any jurisdiction worldwide, including moral rights.
1.13. “Marks” means a party’s name, logo, and trademarks. Any use and display of a party’s Marks by the other party will be in accordance with such party’s trademark guidelines, if provided to the other party.
1.14. “Order Form” means the initial order for the Beam Services and other services provided by Beam, and any subsequent orders, entered into between the parties in writing (including via a web interface), specifying, among other things, the services, fees, and other relevant terms as agreed to between the parties, each of which are incorporated herein by reference and governed by the terms of this Agreement.
1.15. “Supported Nonprofit” means a Nonprofit that Client has allowed End Users to allocate Donations to and specified in an Order Form.
1.16. “Technology” means Beam’s proprietary software used to operate or perform the Integration, including Beam’s API or SDK and any other technology and documentation related to the Integration provided to Client (or Client Service Provider, as applicable) by Beam.
1.17. “Term” is as defined in Section 126.96.36.199. “Trial Period” means the trial period as set forth in Order Form, if applicable. Use of the Beam Services by Client during the Trial Period is subject to the terms of this Agreement, as modified by the Order Form.
1.19. “Usage Data” means any anonymized and aggregated data that is derived from the processing of Client Data or the access or use of the Beam Services by or on behalf of Client, that in no way identifies or refers to Client or End Users, and any statistical or other analysis, information, or data based on or derived from the foregoing.
2. The Beam Services.
2.1. Description. As further set forth in an Order Form, the Beam Services may include: (i) featuring Client in the Beam App along with Beam’s other clients; (ii) providing the Integration in order to enable Client End Users to provide a one percent (1%) Donation to a Supported Nonprofit; and (iii) providing Client with monthly reports, including the Aggregated Data, accompanying each invoice.
2.2. Limited License. During the Term and subject to Client’s compliance with this Agreement, Beam hereby provides Client with: (i) a limited, nonexclusive, nontransferable, sublicensable (solely to Client Service Provider) license to use the Technology solely to enable the Integration in order to make available to Client End Users certain aspects of the Beam Services; and (ii) a limited, nonexclusive, nontransferable, nonsublicensable license during the Term to use the Aggregated Data solely for its internal business purposes.
2.3. Limited Warranty. Beam will perform the Beam Services in a professional and workmanlike manner consistent with generally accepted industry standards. Client’s sole remedy and Beam’s sole obligation for any such failure will be for Beam to use its commercially reasonable efforts to correct such non-compliance.
2.4. Unauthorized Access. Client will take all reasonable steps to prevent unauthorized access to the Integration. Client will notify Beam immediately of any known or suspected unauthorized use of the Integration or breach of its security and will use best efforts to stop said breach.
3. Client’s Responsibilities.
3.1. Donations. Client is responsible for making all Donations designated by End Users within seven (7) days of receipt of Beam’s quarterly report detailing such Donations, and Client will indemnify, defend, and hold Beam, its officers, directors, consultants, employees, successors, and assigns harmless from all claims and liability arising from the foregoing. Client may request the addition of Supported Nonprofits in writing to Beam (email shall suffice) and upon receipt of such request Beam will attempt to obtain any necessary authorization, if not yet obtained, from such Nonprofit for inclusion in the Beam App.
3.2. Data. Client is solely responsible for the accuracy, content, and legality of all Client Data. Client hereby grants to Beam a nonexclusive, worldwide, fully paid, royalty-free, right and license to download, receive, collect, access, modify, copy, store, retain, and otherwise use the Client Data in order to provide and support the Beam Services in accordance with this Agreement, to develop, improve, and provide products and services that are ancillary to the Beam Services, and to provide Client End Users with marketing and promotional emails relating to the Beam Services and Beam App in connection with their use of the Client App. Client Data will not include any data originating from outside the United States and Client may not send Beam any such data.
3.3. Integration. Upon execution of this Agreement, the parties will promptly begin implementation of the Integration. Client is responsible for providing all necessary resources and in complying with all of its obligations under this Agreement, including properly maintaining the Integration. Client is fully responsible and liable for the acts and omissions of Client Service Provider and its compliance with this Agreement.
3.4. Restrictions. Client may use the Integration solely to enable Client End Users to use the Beam Services and will not: (i) copy, modify, or create derivative works or improvements of the Technology or the Integration; (ii) reverse engineer, disassemble, decompile, modify, or alter the Technology or the Integration; (iii) remove, circumvent, disable, damage, or otherwise interfere with or disrupt the integrity or performance of the Integration or any security-related features therein; (iv) input, upload, transmit, or otherwise provide to or through the Integration, any information or materials that are unlawful or injurious, or contain, transmit, send, or store material containing harmful computer code, files, scripts, agents, or programs; (v) rent, lease, loan, resell, sublicense, distribute, or otherwise commercially exploit or make available the Integration to any third party or use the Integration for service bureau or time-sharing purposes; or (vi) develop or have developed any products, services, or other materials that compete with the Integration or otherwise compete with Beam or its business. To the extent Client has access to the Beam Services, the foregoing restrictions also apply to such access. If applicable, Client will ensure Client End Users comply with the foregoing restrictions related to Client End Users’ access to and use of the Beam Services.
3.5. Use of Marks. Client hereby authorizes Beam to use Client’s Marks: (i) on Beam’s App for the purposes of providing the Beam Services under this Agreement; and (ii) in routine marketing and other promotional materials of Beam in connection with the Beam App or the Beam Services, including on Beam’s website and the Beam App. Client will display Beam’s Marks as part of the Integration and to indicate that the Beam Services are provided by Beam. All other use by a party of the other party’s name, logo, or trademarks will be upon such party’s prior written consent.
4. Fees and Payment.
4.1. Fees. Client will pay the amounts set forth in, and in accordance with, an Order Form (“Fees”). All Fees are quoted in United States Dollars, are non-refundable, and are exclusive of all federal, state, local, and other taxes, duties, tariffs, levies, and similar assessments. Beam’s records will be determinative for purposes of Fee calculation.
4.2. Invoicing. Unless otherwise set forth in an Order Form, within sixty (60) days following the end of a given month, Beam will invoice Client for Fees in arrears and all Fees are due within seven (7) days of invoice receipt. Any payment not received from Client by the due date may accrue, at Beam’s discretion, late charges at the rate of one percent (1.0%) of the outstanding balance per month, or at the maximum rate permitted by law, from the date such payment was due until the date paid.
5. Proprietary Rights.
5.1. Client IP. As between Client and Beam, Client owns all right, title, and interest in and to: (i) the Client Data; (ii) the Client App; (iii) Client’s Confidential Information; (iv) the Client Marks and all product names associated with the Client App; and (v) all IP Rights in the foregoing (collectively, the “Client IP”). Except as expressly set forth in this Agreement, no license or other rights to any of the Client IP are granted to Beam, and all such rights are hereby expressly reserved.
5.2. Beam IP. Beam owns all rights, title, and interest in and to: (i) the Beam Marks and all product names associated with the Beam App and the Beam Services; (ii) the Technology, the Beam App, the Beam Services, and all derivative works thereof; (iii) the Usage Data and the Beam End User Data; (iv) any other documents, user interfaces, technology, know-how, trade secrets, designs, inventions, and other tangible or intangible technical material or information used to provide the Beam Services, and/or conceived, inferred, or developed as part of the Beam Services; and (v) all IP Rights in the foregoing (collectively, the “Beam IP”). Other than as expressly set forth in this Agreement, no license or other rights in the Beam IP are granted to Client, and all such rights are hereby expressly reserved.
5.3. Feedback. By submitting any Feedback, Client hereby assigns to Beam all right, title, and interest in and to the Feedback. For purposes of this Agreement, “Feedback” means any comments, feedback, potential errors and improvements, reports, or ideas about Beam App or the Beam Services that Client may provide to Beam. All results and findings relating to the performance of the Beam Services will be deemed Confidential Information of Beam, and upon Beam’s request, Client will provide the findings resulting from any evaluation or use of the Beam Services to Beam.