Beqrious may modify these Terms at any time. Unless otherwise required by Applicable Law (defined below), Company’s access to and use of Beqrious, the 2D Bar Codes and the Services will be governed by the most recent version of these Terms, even if they were accessed, used or created before these Terms were modified. These Terms were last modified on August 22, 2008.
1.1 Grant of License. Subject to Company’s compliance with these Terms, including the restrictions in Section 1.2 and payment of the amounts referenced in Section 2 below (the “Charges”), and the accuracy of the information provided by Company, Beqrious grants to Company a limited, nonexclusive, nontransferable license (the “License”), unless and until terminated under Section 1.3 below (the “Term”), to: (a) access and use Beqrious for the sole purposes of creating 2D Bar Codes for Company’s commercial or business use (the “Permitted Purpose”); (b) copy, publish or otherwise distribute 2D Bar Codes for the Permitted Purpose; (c) capture and decode, and permit others to capture and decode, 2D Bar Codes (each, a “Scan”) for the Permitted Purpose; and (d) use the Beqrious Marks (defined below) that may appear on 2D Bar Codes for the Permitted Purpose.
1.2 Restrictions. Company will not at any time: (a) use Beqrious, the 2D Bar Codes or the Services for personal, household or family purposes or for any purpose other than the Permitted Purpose; (b) modify, adapt, translate or create derivative works of Beqrious or the 2D Bar Codes; (c) reverse engineer, disassemble, decompile or otherwise attempt to derive the source code for, or any other trade secrets embodied in, Beqrious; (d) copy any portion of Beqrious; (e) (i) charge any person for access to or use of Beqrious, the 2D Bar Codes or the Services; (ii) rent, lease, loan, distribute, resell, sublicense or transfer Beqrious, the 2D Bar Codes or the Services; (iii) use Beqrious, the 2D Bar Codes or the Services to provide services to or for any unrelated third party; or (iv) otherwise act as a service bureau; (f) infringe or misappropriate any third party rights, including any trademarks, copyrights, patents, trade secrets, privacy, publicity or other intellectual property rights; (g) use the 2D Bar Codes to upload, download, link, create, transmit or otherwise communicate any material that (i) violates any law, statute, order, rule, regulation, ordinance or judgment of any governmental authority (collectively, “Applicable Law”) or encourages or promotes any illegal activity; (ii) is otherwise inappropriate for the age of the intended recipient; (iii) libels, slanders or defames any person, facility or product; (iv) is deceptive, constitutes an unfair or improper trade practice or other wrongful business conduct; (v) is threatening; (vi) encourages or promotes racism; (vii) delivers unsolicited email or circumvents protective technologies; (viii) contains any viruses, worms, time bombs, time locks, drop dead devices, traps, access codes, trap door devices or any other code that is designed to disrupt, disable, erase, alter, harm or otherwise impair any mobile phone, computer or other computing device; or (ix) links to any web site or other information that does any of the preceding; (h) use an alias or impersonate any other person; or (i) permit any other person to do any of the preceding.
1.3 Term of the License. (a) Beqrious may terminate the License at any time without notice and with or without cause (and if Beqrious terminates the License for cause, Beqrious may, in its sole discretion, reinstate the License upon payment of a reinstatement fee); and (b) Company may terminate the License with or without cause by giving Beqrious notice of that termination. Immediately upon termination of the License for any reason, (y) Beqrious will have the right, but not the obligation, to disable all of Company’s existing 2D Bar Codes and cease providing any Services, and (z) Company will cease all use of its 2D Bar Codes, and, at Beqrious’s request, will submit a signed statement to Beqrious certifying that Company has complied with the preceding.
1.4 2D Bar Codes. In consideration of the Charges to be paid by Company under Section 2 below, Company may generate up to 5,000 2D Bar Codes in each 12-month period beginning on the date Company first registers with Beqrious (each, a “Contract Year”). If Company generates more than that number of 2D Bar Codes in a Contract Year, Company will be subject to an additional charge. During the Term, if any 2D Bar Codes have not been Scanned for 365 days, Beqrious may, at its election: (a) terminate Company’s use of those 2D Bar Codes without notice; and (b) reassign those 2D Bar Codes to other customers.
1.5 US Government Restricted Rights. Beqrious and the 2D Bar Codes are “commercial computer software” and the related documentation is “commercial computer software documentation under 48 CFR 12.212 and is provided to US Government licensees with restricted rights. Use, duplication, reproduction or transfer of Beqrious and the 2D Bar Codes is restricted in accordance with FAR 12.212 and DFARS 227.7202 and these Terms.
1.6 Reservation of Rights. Beqrious and its suppliers retain all right, title and interest in and to Beqrious, the 2D Bar Codes, the Services, the Data and any related intellectual property rights, except those expressly included in the License.
2. Pricing and Payment.
2.1 Pricing Options/Company Information. Beqrious offers multiple pricing options. Those pricing options are or may be based on any one or more of the following factors: (a) Company’s industry, (b) the number of Company’s employees (for purposes of pricing, the term “employee” includes not only individuals who are employees but also includes independent contractors who perform services for Company), not just the employees who are authorized to access and use Beqrious to generate and/or manage 2D Bar Codes; and (c) the number and type of 2D Bar Codes and Scans. Company represents and warrants that all information provided by Company is and remains true, accurate and complete. Company will promptly notify Beqrious of any material change in that information. If at any time the information provided by Company becomes false or materially misleading, Beqrious may elect to recalculate the rates and/or fees applicable to Company based on the correct information.
2.2 Charges/Number of Scans. Beqrious will monitor the number of Scans of Company’s 2D Bar Codes. If the number of Scans exceeds the number of pre-paid Scans purchased by Company, Company will pay Beqrious for each additional Scan. Any pre-paid Scans that have not been used by the end of the Contract Year will terminate.
2.3 Payment Terms. Company will pay Beqrious the amounts, by the dates and in the manner, described in the invoice generated during Company’s registration process or rightfully submitted by Beqrious following registration, including any sales, use, excise or similar taxes, any value added taxes (VAT) or any export or import tariffs, duties or fees. Charges are payable in the currency reflected in the relevant invoice. Any Charges not paid in full as and when due will be subject to a late fee equal to the past due amount multiplied by the lower of (a) one and one-half percent (1.5%) per month or (b) the highest rate permitted by applicable law. Company may direct questions regarding Charges to Beqrious at its Customer Service Department at (212) 278-0178.
2.4 Price Changes. Beqrious may modify its fees at any time by giving Company notice by electronic or regular mail. Those modified fees will be effective thirty days following the date of that notice and will apply to any Charges incurred by Company following the effective date of that price change.
3. Company Representations, Warranties and Obligations
3.2 Compliance with Law; Rules and Industry Standards. Company will comply in all respects with: (a) Applicable Law; (b) the rules and regulations of its mobile telephone service providers, internet service providers and other third party service providers; and (c) the prudent practices, methods, specifications and standards of safety and performance commonly used in operations similar to those of Company.
3.3 Proprietary Notices. Company will not remove or alter any copyright, trademark or other proprietary rights notice contained in Beqrious or on any 2D Bar Codes.
3.4 Login Information. Company will not share its account information, authorized user’s passwords or other login information with anyone else. Beqrious will not be liable for any loss that Company incurs as a result of any other person’s use of that account or login information, whether authorized or unauthorized. Company will notify Beqrious immediately if Company discovers any unauthorized use of its account information, passwords or other login information.
4.1 Beqrious, 2D Bar Codes, Data. Beqrious and its suppliers own all right, title and interest in and to Beqrious, the 2D Bar Codes and all data generated by the use of the 2D Bar Codes (the “Data”), subject only to the restrictions in Section 5 (Confidentiality). Beqrious grants to Company an irrevocable, perpetual, royalty free, nonexclusive right to copy, use and make excerpts of the Data for the Permitted Purpose.
4.2 Trademarks. As between Company and Beqrious, Beqrious is the exclusive owner of the BEQRIOUS®, BEQRIOUSand EZCODE® marks (the “Beqrious Marks”), their registrations and applications for registration, and their associated goodwill, throughout the world. All use of the Beqrious Marks will inure to the benefit of Beqrious. Except as expressly provided in the License, Company will not acquire any right, title or interest in or to the Beqrious Marks. Company will not, during or after the Term, (a) directly or indirectly contest, aid others in contesting; (b) use or register any trademark, service mark or trade name that is confusingly similar to any Beqrious Mark; (c) use any Beqrious Mark in any way that might prejudice the distinctiveness or validity of that Beqrious Mark or impair the goodwill of Beqrious in the Beqrious Marks; or (d) do anything that might impair the validity of the Beqrious Marks or Beqrious’s exclusive ownership of the Beqrious Marks. Unless Beqrious gives its prior written approval, Company will not, and will not authorize any other person, directly or indirectly, to: (x) use any Beqrious Mark except precisely in the form Beqrious specifies, including color, size and font; (y) use any Beqrious Mark in conjunction with other trademark or trade name, including Company’s trademarks, service marks and trade names; or (z) use any Beqrious Mark, either individually or in combination with any other mark, as a business name or trade name in the conduct of any portion of Company’s business. Notwithstanding the preceding, upon written authorization from Beqrious, which Beqrious will not unreasonably withhold, Company may use the Beqrious Marks in any filing required by Applicable Law and in any quarterly or annual report.
4.3 Feedback; License. Company may submit comments, suggestions and recommendations to Beqrious with respect to Beqrious, the 2D Bar Codes and the Services, and in that case, Company will retain the ownership rights in and to those submissions and the ideas, inventions, discoveries, works of authorship and related intellectual property rights in those submissions. Company grants to Beqrious an unlimited, nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use, copy, modify, distribute, make, import, sell, offer to sell, lease, license or otherwise transfer, including the right to sublicense any of these rights to others, any intellectual property rights Company may have in those submissions.
5.1 Company’s Obligations. Company will not at any time disclose to any person other than to Company’s legal and financial advisors (and then, only if they agree to be bound by this Section) any of the following except as required by Applicable Law: (a) the Charges, the invoices and any other pricing or related information; (b) any reports about Beqrious; or (c) the results of any benchmark or comparative tests related to the creation, Scanning or other use of the 2D Bar Codes.
6.1 No Warranty. Beqrious does not warrant that Beqrious, the 2D Bar Codes or any Services will be uninterrupted or error free, and Company will bear all risks associated with Company’s use of Beqrious, the 2D Bar Codes and the Services, including any damage to any device or software and any loss of data or information. Neither Beqrious nor its suppliers have any support obligations under these Terms. Beqrious and the 2D Bar Codes are licensed to Company “AS IS” and any Services are provided to Company “AS IS”, and NEITHER BEQRIOUS NOR ITS SUPPLIERS MAKE ANY WARRANTIES OR REPRESENTATIONS TO COMPANY, OR TO ANYONE THAT SCANS THE 2D BAR CODES, REGARDING BEQRIOUS, THE 2D BAR CODES OR THE SERVICES, AND BEQRIOUS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
6.2 Hazardous Activities; General Release. BEQRIOUS, THE 2D BAR CODES AND THE SERVICES MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS OR IN ENVIRONMENTS REQURING FAIL-SAFE PERFORMANCE (SUCH AS IN THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF NUCLEAR FACILITIES; AIRCRAFT NAVIGATION, COMMUNICATION OR FLIGHT CONTROL; LIFE SUPPORT MACHINES; WEAPONS SYSTEMS OR ANY OTHER ENVIRONMENTS) OR APPLICATIONS IN WHICH THE FAILURE OF BEQRIOUS, THE 2D BAR CODES OR THE SERVICES COULD LEAD TO SERIOUS INJURY OR DEATH, ENVIRONMENTAL DAMAGE OR FINANCIAL LOSS. COMPANY RELEASES BEQRIOUS FROM ANY AND ALL LIABILITY FOR USE OF BEQRIOUS, THE 2D BAR CODES AND THE SERVICES IN THOSE AND ALL OTHER ACTIVITIES AND WILL INDEMNIFY AND HOLD BEQRIOUS AND ITS SUPPLIERS HARMLESS FROM ANY CLAIM ARISING OUT OF COMPANY’S USE OF BEQRIOUS, THE 2D BAR CODES AND/OR THE SERVICES IN ALL OF THOSE ACTIVITIES.
7. Limitation of Liability.
IN NO EVENT WILL BEQRIOUS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXMPLARY OR OTHER DAMAGES ARISING OUT OF COMPANY’S USE OR INABILITY TO USE BEQRIOUS, THE 2D BAR CODES OR THE SERVICES, EVEN IF BEQRIOUS HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF THOSE DAMAGES ARISE FROM OR RELATE TO THESE TERMS, ANY OTHER CONTRACT, ANY NEGLIGENCE OR OTHER TORT, OR ANY STATUTE. TO THE EXTENT THE PRECEDING EXCLUSION OF DAMAGES IS UNENFORCEABLE, BEQRIOUS’S MAXIMUM LIABILITY WILL BE LIMITED TO THE CHARGES COMPANY PAID BEQRIOUS DURING THE 30-DAY PERIOD IMMEDIATELY PRECEDING THE DATE COMPANY’S CLAIM AROSE.
All notices required or permitted under these Terms may be (a)(i) sent by e-mail; (ii) deposited in the mail and sent first class certified, return receipt requested; (iii) sent via a recognized overnight courier service; or (iv) delivered in person, in each case to the address set forth in Company’s Commercial Registration Form; or (b) posted on the Beqrious web site at www.Beqrious.com/commercialterms/. Properly addressed e-mail notices will be deemed written notices for all purposes for which written notices may be required and will be deemed received the first business day after transmission. Properly addressed first class certified mail will be deemed received five business days after it is deposited, postage prepaid, in the mail. Properly addressed notices sent by overnight courier or delivered in person will be deemed received when personally delivered to the intended recipient or to a person with apparent authority to receive such delivery on behalf of the intended recipient, charges prepaid. Company will monitor the Beqrious web site frequently to ensure awareness of any notices posted to that web site.
9. Force Majeure.
Neither party will be in default or otherwise liable for any delay in or failure of its performance under these Terms if the delay or failure arises from any reason beyond its reasonable control, including any act of God, any acts of the common enemy, terrorism, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, strikes, labor disturbances or slowdowns, or any act or failure to act by the other party or its employees, agents or contractors (however, lack of funds will not be deemed to be a reason beyond a party’s reasonable control). The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a delay in the performance of its obligations under these Terms.
10. Governing Law; Dispute Resolution.
10.1 Governing Law. These Terms will be governed by the laws of the United States of America and the State of New York without regard to conflicts of law principles, except that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
10.2 Arbitration. Any dispute relating to Beqrious, the 2D Bar Codes, the Services or these Terms that cannot be resolved by the parties will be resolved by arbitration in New York, New York, USA under the Commercial Arbitration Rules of the American Arbitration Association or any other rules mutually agreeable to the parties. Any dispute involving claims asserted by both parties that are less than $100,000 in the aggregate will be resolved by a single neutral arbitrator. Any dispute involving claims asserted by both parties that in the aggregate equal or exceed $100,000, or claims that seeks injunctive or equitable relief, will be resolved by a panel of three neutral arbitrators as follows: each party will appoint an arbitrator and those two arbitrators will appoint a third arbitrator who will chair the arbitration panel. If one of the parties fails or refuses to appoint an arbitrator within 30 days after the date the other party appoints its arbitrator, that first appointed arbitrator will be the sole arbitrator. Both parties consent to the jurisdiction of that arbitrator or arbitration panel, as appropriate. All proceedings will be conducted, and all documents submitted in connection with those proceedings will be presented, in the English language. Arbitration proceedings may be consolidated with arbitration proceedings pending between other individuals or entities if the arbitration proceedings arise out of the same transaction or relate to the same subject matter. Consolidation will be by order of the arbitrator(s), in any of the pending cases, or if the arbitrator(s) fail to make the order, the parties may apply to any court of competent jurisdiction for that order. The arbitrator(s) will have the authority to award any remedy or relief that a court could order or grant, including specific performance of any obligation created under these Terms, the awarding of punitive damages, the issuance of an injunction or the imposition of costs. The award will be in writing, will be signed by the arbitrator(s) a nd will include findings of fact, conclusions of law and a statement regarding the disposition of each claim. The award will be final and binding on the parties. To the extent permitted by Applicable Law, judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction over the parties or the dispute. Neither party may disclose the existence, content, results or any other information about the dispute, the arbitration or the award to any person except as necessary to enforce the award or as required by Applicable Law.
10.3 Exception. Notwithstanding Section 10.2 (Arbitration): (a) the parties will be entitled to interim or provisional relief from a court that may be necessary to protect the rights or property of that party pending the arbitration process; and (b) Beqrious may in its sole discretion, waive its rights under Section 10.2 and instead elect to have any dispute arising out of or related to Beqrious, the 2D Bar Codes, the Services or these Terms resolved by the courts of the state, province, commonwealth, or country where Company is located, and in that case, Company agrees that those courts will have exclusive jurisdiction in relation to that dispute.
Section and paragraph headings are for convenience only and do not affect the meaning or interpretation of these Terms. The words “includes” and “including” are not limited in any way and mean “includes or including without limitation.” The word “person” includes individuals, corporations, partnerships, limited liability companies, co-operatives, associations and other natural and legal persons. The term “and/or” means each and all of the persons, words, provisions or items connected by that term; i.e., it has a joint and several meaning. The words “will” and “shall” are synonymous; i.e., they both have a mandatory (and not a permissive) meaning. Unless the context clearly indicates otherwise, all references to “these Terms” will include Company’s Commercial Registration Form, the invoices and any other documents attached to or referenced in these Terms, and those documents are a part of and are incorporated in these Terms. Both parties have had the opportunity to have these Terms reviewed by their attorneys. Therefore, no rule of construction or interpretation that disfavors the party drafting these Terms or any of its provisions, or favors the other party, will apply to the interpretation of these Terms. Instead, these Terms will be interpreted according to the fair meaning of its provisions. If any court, arbitrator, or arbitration panel finds any provision of these Terms to be invalid or otherwise unenforceable, that provision will be modified to the extent necessary for it to be enforceable. However, that finding will not affect the validity of any other provision of these Terms, and the rest of these Terms will remain in full force and effect unless enforcement of these Terms as modified would be grossly inequitable under all of the circumstances or would frustrate the primary purposes of these Terms.
12. Waiver; Severability.
The waiver by either party of any breach or right under these Terms must be in writing and any such waiver will not constitute a waiver of any other or subsequent breach or right. If any provision of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction, that provision will be severed from the remainder of these Terms, which will remain in full force and effect unless enforcement of these Terms without the invalid or unenforceable clause would be grossly inequitable under the circumstances or would frustrate the primary purpose of these Terms.
13. Entire Agreement; Amendments.
Except as expressly provided otherwise in the section entitled “Important Notices,” these Terms may be modified only in a written document that has been signed by Company and an authorized officer of Beqrious, and in the case of the disclaimers in Section 6 or the limitations of liability in Section 7, those sections may be amended only in a written document that has been signed by the President or a Vice President of Beqrious. These Terms, and the policies, documents and other agreements referenced in these Terms, reflect the entire agreement of the parties and supersede all prior oral and written understandings with respect to the subject matter of these Terms and those policies, documents and other agreements.
1 “Beqrious” is a trademark of Beqrious, Inc. that has been registered in the United States and European countries and is in the process of being registered in other countries.
2 “Beqrious” is a trademark of Beqrious, Inc. that has been registered in the United States and other European countries and is in the process of being registered in other countries.