Terms of Use

Welcome, and thank you for your interest in Kodeine, Inc. dba Beyond Clicks (“Kodeine”, “Beyond Clicks”) and our website at www.beyondclicks.com , along with the related websites, networks, applications, and other services provided by Beyond Clicks (collectively, the “Beyond Clicks Services”). These Terms of Service are a legally binding contract between you (“Subscriber”) and Beyond Clicks regarding your use of the Beyond Clicks Services.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE BEYOND CLICKS SERVICES, SUBSCRIBER AGREES THAT SUBSCRIBER HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO USE OF THE BEYOND CLICKS SERVICES, AGREES TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING BEYOND CLICKS'S PRIVACY POLICY (TOGETHER, THESE “TERMS”). These Terms may be incorporated into and be a part of the agreement between Beyond Clicks and Subscriber as set forth on an order form (“Order Form”) under which Subscriber has ordered the Beyond Clicks Services. If Subscriber is not eligible, or does not agree to the Terms, then Subscriber does not have Beyond Clicks’s permission to use the Beyond Clicks Services. SUBSCRIBER’S USE OF THE BEYOND CLICKS SERVICES, AND BEYOND CLICKS'S PROVISION OF THE BEYOND CLICKS SERVICES TO SUBSCRIBER, CONSTITUTES AN AGREEMENT BY BEYOND CLICKS AND SUBSCRIBER TO BE BOUND BY THESE TERMS.

BEYOND CLICKS SERVICE OVERVIEW
Beyond Clicks empowers brands to more efficiently and profitably manage their search marketing on Amazon and other e-commerce platforms that may be enabled by Beyond Clicks through enhanced data analytics and automation. Subscriber may select between different levels of service when purchasing a subscription to the Beyond Clicks Services. Subscriber is an “Enterprise Subscriber” if Subscriber purchases a subscription by an Order Form. Subscriber is a “Standard Subscriber” if Subscriber purchased a subscription by an online subscription process.

ELIGIBILITY
Subscriber must be at least 18 years old to use the Beyond Clicks Services. By agreeing to these Terms, Subscriber represents and warrants to Beyond Clicks that: (a) Subscriber is at least 18 years old; (b) Subscriber has not previously been suspended or removed from the Beyond Clicks Services; and (c) Subscriber’s registration and use of the Beyond Clicks Services is in compliance with any and all applicable laws and regulations. If Subscriber is an entity, organization, or company, the individual accepting these Terms on Subscriber’s behalf represents and warrants that they have authority to bind Subscriber to these Terms and Subscriber agrees to be bound by these Terms.

ACCOUNTS AND REGISTRATION
When registering for an account on the Beyond Clicks Services, Subscriber may be required to provide Beyond Clicks with certain information, such as Subscriber’s name, email address, company name, or other contact information. Subscriber agrees that the information provided to Beyond Clicks is accurate and that Subscriber will keep it accurate and up-to-date at all times. Subscriber is solely responsible for maintaining the confidentiality of Subscriber’s account and password, and Subscriber accepts responsibility for all activities that occur under Subscriber’s account.

USE OF THE BEYOND CLICKS SERVICES
4.1 - Use of the Beyond Clicks Services. Beyond Clicks grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 13.2) right during the Subscription Term to use the Beyond Clicks Services solely in connection with Subscriber’s internal business operations.
4.2 - Use of the Documentation. Beyond Clicks grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 13.2) license, without right of sublicense, during the Subscription Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Beyond Clicks Services in accordance with these Terms. “Documentation” means Beyond Clicks-provided user documentation, in all forms, relating to the Beyond Clicks Services (e.g., user manuals, on-line help files).
4.3 - Technical Support Services. For so long as Subscriber is current with its payment of the fees due in connection with these Terms, Beyond Clicks will use reasonable efforts to provide Subscriber with technical support services relating to the Beyond Clicks Services by email from 9am-5pm Pacific, Monday through Friday, excluding holidays.
4.4 - Professional Services. If Subscriber has ordered or Beyond Clicks will otherwise be providing consulting or other professional services to Subscriber, the Beyond Clicks Professional Services Addendum is hereby incorporated by reference into these Terms.
4.5 - Use Restrictions. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Beyond Clicks Services or Documentation; (b) use the Beyond Clicks Services to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the Beyond Clicks Services; (d) use the Beyond Clicks Services for any benchmarking activity or in connection with the development of any competitive product; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization of the Beyond Clicks Services (except to the extent that applicable law prevents the prohibition of such activities); (f) use or access the Beyond Clicks Services in a manner that materially impacts or burdens Beyond Clicks or Beyond Clicks’s servers and other computer systems, or that interferes with Beyond Clicks’s ability to make available any product or service to any third party; or (g) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other account on the Beyond Clicks Services without permission.
4.6 - Compliance with Laws. Subscriber will use the Beyond Clicks Services and Documentation in compliance with all applicable laws and regulations. Subscriber will not violate any right of a third party, including by infringing or misappropriating any third party intellectual property right.
4.7 - Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Beyond Clicks Services and Documentation and immediately notify Beyond Clicks at support@beyondclicks.com of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Beyond Clicks Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Beyond Clicks to prevent or terminate unauthorized use of the Beyond Clicks Services or Documentation.
4.8 - Reservation of Rights. Beyond Clicks grants to Subscriber a limited right to use the Beyond Clicks Services and Documentation under these Terms. Subscriber will not have any rights to the Beyond Clicks Services or Documentation except as expressly granted in these Terms. Beyond Clicks reserves to itself all rights to the Beyond Clicks Services and Documentation not expressly granted to Subscriber in accordance with these Terms.
4.9 - Feedback. If Subscriber provides any feedback to Beyond Clicks concerning the functionality and performance of the Beyond Clicks Services (including identifying potential errors and improvements), Subscriber hereby grants to Beyond Clicks a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable, and sub-licenseable right and license to use the feedback in any manner without payment or restriction.
4.10 - Third Party Products. Any third party products that are provided by Beyond Clicks in connection with the Beyond Clicks Services are provided pursuant to the terms of the applicable third party agreement, and Beyond Clicks assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products.

FEES AND PAYMENT
5.1 - Fees and Payment Terms – Enterprise Subscribers. This Section 5.1 will apply if Subscriber is an Enterprise Subscriber.
5.1.A - Fees and Payment. Subscriber will pay Beyond Clicks the fees and other amounts due for the orders Subscriber makes for the Beyond Clicks Services, including any fees specified in an Order Form or Statement of Work (as defined in the Professional Services Addendum), plus any applicable taxes (“Fees”). Subscriber will pay all amounts due within 30 days of the date of the applicable invoice, unless otherwise specified in the Order Form. Beyond Clicks may increase the Fees for any renewal Subscription Term by providing notice to Subscriber at least 30 days prior to the renewal. All Fees are nonrefundable.
5.1.B - Late Payments. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Beyond Clicks to collect any amount that is not paid when due. Amounts due from Subscriber under these Terms may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under these Terms are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
5.2 - Fees and Payment Terms – Standard Subscribers. This Section 5.2 will apply if Subscriber is a Standard Subscriber.
5.2.A - Fees. Beyond Clicks reserves the right to determine pricing for the Beyond Clicks Services (“Fees”). Beyond Clicks will make reasonable efforts to keep the Fee information published on the website up to date. Beyond Clicks encourages Subscriber to check the Beyond Clicks website periodically for current Fee information. Beyond Clicks may change the Fees for the Beyond Clicks Services or any feature of the Beyond Clicks Services, including additional fees or charges, if Beyond Clicks gives Subscriber advance notice of changes before they apply. All Fees are nonrefundable.
5.2.B - Authorization. Subscriber authorizes Beyond Clicks to charge all Fees for the orders that Subscriber makes and any level of service Subscriber selects as described in these Terms or published by Beyond Clicks, including all applicable taxes, to the payment method specified in Subscriber’s account. If Subscriber pays any Fees with a credit card, Beyond Clicks may seek pre-authorization of Subscriber’s credit card account prior to purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Subscriber’s purchase.
5.2.C - Recurring Subscriptions. The Beyond Clicks Services may include automatically recurring payments for periodic Fees (“Recurring Subscription”). If Subscriber activates a Recurring Subscription, Subscriber authorizes Beyond Clicks to periodically charge, on a going-forward basis and until cancellation of either the Recurring Subscription or Subscriber’s account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when Subscriber purchases the Recurring Subscription. Subscriber’s account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until Subscriber cancels its subscription or Beyond Clicks terminates it. Subscriber must cancel its subscription before it renews (as specified in Section 6.4) in order to avoid billing of the next periodic subscription Fees to Subscriber’s account. Beyond Clicks will bill the periodic subscription Fees to the payment method Subscriber provides during registration (or to a different payment method if Subscriber changes its payment information).
5.2.D - Delinquent Accounts. Beyond Clicks may suspend or terminate access to the Beyond Clicks Services, including fee-based portions of the Beyond Clicks Services, for any account for which any amount is due but unpaid. In addition to the amount due for the Beyond Clicks Services, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5.3 - Promotional Offers. Beyond Clicks, at its sole discretion, may make promotional offers with different features and different pricing to any of Beyond Clicks’s customers. These promotional offers, unless made to Subscriber, will not apply to Subscriber’s offer or these Terms.
5.4 - Taxes. Other than net income taxes imposed on Beyond Clicks, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from these Terms. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Beyond Clicks after all such taxes are paid are equal to the amounts that Beyond Clicks would have been entitled to in accordance with these Terms as if the taxes did not exist.
5.5 - Trial Accounts. In its sole discretion, Beyond Clicks may grant Subscriber the right to access and use the Beyond Clicks Services as a trial user at no charge for a specified limited time period (“Trial Account”). At the expiration of the trial period, Subscriber’s access to the Beyond Clicks Services will be terminated unless Subscriber pays the applicable subscription fees. Only a single Trial Account will be granted for a given email address. Beyond Clicks has no duty to provide Trial Accounts and will have no liability to anyone for failing to offer a Trial Account or for terminating a Trial Account’s trial period, with or without notice. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT SECTION 10 OF THESE TERMS DOES NOT APPLY WITH RESPECT TO ANY TRIAL ACCOUNTS OR ACCESS OR USE OF THE BEYOND CLICKS SERVICES VIA A TRIAL ACCOUNT OR DURING ANY TRIAL PERIOD.

TERM AND TERMINATION
6.1 - Term. These Terms are effective beginning when Subscriber accepts the Terms or first downloads, installs, accesses, or uses the Beyond Clicks Services and expire on the expiration or termination of the last Subscription Term.
6.2 - Subscription Term. “Subscription Term” means the term of Subscriber’s subscription to the Beyond Clicks Services, including any renewal terms.
6.2.A - Enterprise Subscribers. The Subscription Term for Enterprise Subscribers will be as set forth on the applicable Order Form and will automatically renew for additional 1 year terms unless either party provides written notice of non-renewal at least 30 days’ prior to the end of the then-current Subscription Term.
6.2.B - Standard Subscribers. The Subscription Term for Standard Subscribers will be as specified during the online subscription process and will automatically renew for additional terms of the same duration unless terminated in accordance with Section 6.4.6.
2.C - Trial Accounts. The Subscription Term of a Trial Account is as specified by Beyond Clicks at the time of creation of the Trial Account. Beyond Clicks may, in its sole discretion, terminate a Trial Account and these Terms with respect to a Trial Account at any time and for any and no reason, with or without notice.
6.3 - Termination – Enterprise Subscribers. This Section 6.3 will apply if Subscriber is an Enterprise Subscriber. Either party may terminate these Terms if the other party does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 6.3 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, Beyond Clicks may, without limitation to any of its other rights or remedies, suspend performance of the Beyond Clicks Services until it receives all amounts due.
6.4 - Termination – Standard Subscribers. This Section 6.4 will apply if Subscriber is a Standard Subscriber or a Trial Account. If Subscriber violates any provision of these Terms, Subscriber’s authorization to access the Beyond Clicks Services and these Terms automatically terminate. Beyond Clicks may, at its sole discretion, terminate these Terms or Subscriber’s subscription to the Beyond Clicks Services, or suspend or terminate Subscriber’s access to the Beyond Clicks Services, at any time and for any or no reason, with or without notice. Subscriber may terminate its subscription to the Beyond Clicks Services at any time, and Subscriber will continue to have access to the Beyond Clicks Services through the end of the current Subscription Term, at which time the Subscription Term will automatically expire. Subscriber may terminate its subscription by contacting customer service at support@beyondclicks.com.
6.5 - Effect of Termination. Upon the expiration or termination of these Terms for any reason: (i) access to the Beyond Clicks Services will automatically terminate; (ii) Subscriber will pay to Beyond Clicks any fees or other amounts that have accrued prior to the effective date of the expiration or termination, (iii) any and all liabilities accrued prior to the effective date of the termination will survive, and (iv) the following provisions will survive the expiration or termination of these Terms: Sections 4.8, 4.9, 5, 6.5, 7, and 9 through 13.

SUBSCRIBER DATA
7.1 - Ownership. Subscriber retains all right, title, and interest, including all intellectual property rights, in and to any data or information that Subscriber uploads or inputs into the Beyond Clicks Services or otherwise makes available to Beyond Clicks (“Subscriber Data”).
7.2 - License Grant. Subscriber hereby grants Beyond Clicks a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, and store the Subscriber Data: (a) during the Subscription Term, for the purpose of exercising Beyond Clicks’s rights and performing its obligations under these Terms; and (b) in perpetuity, in a form that does not identify Subscriber as the source thereof, for Beyond Clicks’s business purposes, including to develop and improve Beyond Clicks’s products and services.
7.3 - Representations and warranties. Subscriber represents and warrants that: (a) Subscriber has all rights necessary to grant Beyond Clicks the licenses set forth in Section 7.2 and to enable Beyond Clicks to exercise its rights under these Terms; (b) Subscriber’s collection and use of any Subscriber Data in connection with the Beyond Clicks Services complies with all applicable privacy and data protection laws, rules, and regulations (collectively, “Privacy Laws”); and (c) the Subscriber Data, and the use of the Subscriber Data as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) cause Beyond Clicks to violate any Privacy Laws or any other law or regulation.
7.4 - Information Security. Beyond Clicks will implement commercially reasonable organizational and technical measures that are designed to prevent unauthorized or unlawful access, use or disclosure of Subscriber Data.

MODIFICATION OF THESE TERMS
Beyond Clicks reserves the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies Subscriber’s rights or obligations, Beyond Clicks may require that Subscriber accepts the modified Terms in order to continue to use the Beyond Clicks Services. Material modifications are effective upon Subscriber’s acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 8, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

DISCLAIMER
BEYOND CLICKS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. BEYOND CLICKS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. BEYOND CLICKS DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE BEYOND CLICKS SERVICES. BEYOND CLICKS DOES NOT WARRANT THAT THE BEYOND CLICKS SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE BEYOND CLICKS SERVICES WILL BE SECURE OR UNINTERRUPTED. BEYOND CLICKS DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE BEYOND CLICKS SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE BEYOND CLICKS SERVICES WILL ALWAYS BE AVAILABLE. BEYOND CLICKS EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE BEYOND CLICKS SERVICES.

INTELLECTUAL PROPERTY INFRINGEMENT
10.1 - Defense of Infringement Claims. Beyond Clicks will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Beyond Clicks Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the Subscription Term if: (a) Subscriber gives Beyond Clicks prompt written notice of the Claim; (b) Subscriber grants Beyond Clicks full and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as Beyond Clicks may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Beyond Clicks Services). Subscriber will not defend or settle any Claim without Beyond Clicks’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Beyond Clicks will have sole control over the defense and settlement of the Claim.
10.2 - Indemnification of Infringement Claims. Beyond Clicks will indemnify Subscriber from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 10.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 10.1 (other than attorneys’ fees and costs incurred without Beyond Clicks’s consent after Beyond Clicks has accepted defense of the Claim); and (c) all amounts that Beyond Clicks agrees to pay to any third party to settle any Claim under Section 10.1.
10.3 - Exclusions from Obligations. Beyond Clicks will have no obligation under this Section 10 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Beyond Clicks Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Beyond Clicks Services are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Beyond Clicks Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Beyond Clicks Services in accordance with instructions provided by Beyond Clicks, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Beyond Clicks Services not made or authorized in writing by Beyond Clicks where such infringement or misappropriation would not have occurred absent such modification.
10.4 - Limited Remedy. This Section 10 states Beyond Clicks’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Beyond Clicks Services.

SUBSCRIBER INDEMNIFICATION
11.1 - Defense. Subscriber will defend Beyond Clicks from any actual or threatened third party Claim arising out of or based upon Subscriber’s use of the Beyond Clicks Services (except to the extent Beyond Clicks is required to indemnify Subscriber for such Claim under Section 10.1) or Subscriber's breach of any of the provisions of these Terms. Beyond Clicks will (a) give Subscriber prompt written notice of the Claim; (b) grant Subscriber full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Beyond Clicks will not defend or settle any Claim without Subscriber’s prior written consent. Beyond Clicks will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
11.2 - Indemnification. Subscriber will indemnify Beyond Clicks from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Beyond Clicks in any Claim under Section 11.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Beyond Clicks in connection with the defense of a Claim under Section 11.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section

LIMITATIONS OF LIABILITY
12.1 - Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, NO PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.2 - Cap on Liability. UNDER NO CIRCUMSTANCES WILL BEYOND CLICKS TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT PAID BY SUBSCRIBER TO BEYOND CLICKS DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION) or (b) $100.
12.3 - Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.

GENERAL
13.1 - Relationship. Beyond Clicks will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of these Terms.
13.2 - Assignability. Neither these Terms nor any rights under these Terms may be assigned or otherwise transferred by Subscriber, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Beyond Clicks. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
13.3 - Subcontractors. Beyond Clicks may utilize a subcontractor or other third party to perform its duties under these Terms so long as Beyond Clicks remains responsible for all of its obligations under these Terms.
13.4 - Consent to Electronic Communications. By using the Beyond Clicks Services, Subscriber consents to receiving certain electronic communications from Beyond Clicks. Subscriber agrees that any notices, agreements, disclosures, or other communications that Beyond Clicks sends to Subscriber electronically will satisfy any legal communication requirements, including that those communications be in writing.
13.5 - Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
13.6 - Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms.
13.7 - Arbitration. Any controversy or claim arising out of or relating to these Terms, or any breach of these Terms, will be determined by binding arbitration administered by, and in accordance with the rules of, the American Arbitration Association. Any arbitration will be conducted by three arbitrators (with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators) in King County, Washington and will be conducted (and the award rendered) in English. The award rendered by the arbitrators will be final and binding on the parties, and the arbitral judgment may be entered in any court of competent jurisdiction. Nothing in this Section 13.7 prevents either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
13.8 - Waiver. The waiver by either party of any breach of any provision of these Terms does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
13.9 - Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect.
13.10 - Privacy Policy. Please read the Beyond Clicks Privacy Policy carefully for information relating to our collection, use, storage, disclosure of personal information. The Beyond Clicks Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
13.11 - Entire Agreement. These Terms, together with the Beyond Clicks Privacy Policy and any other agreement expressly incorporated by reference into these Terms, are the final and complete expression of the agreement between these parties regarding Subscriber’s use of and Beyond Clicks’s provision of the Beyond Clicks Services. These Terms supersede all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms do not supersede any prior nondisclosure or comparable agreement between the parties executed prior to the effective date of these Terms, nor do they affect the validity of any agreements between the parties relating to professional services relating to the Beyond Clicks Services that Beyond Clicks may provide. If there is a conflict between the main terms and conditions of these Terms, the Professional Services Addendum, a Statement of Work, or an Order Form, the Order Form will prevail, followed by the Statement of Work, followed by the Professional Services Addendum, followed by the main terms and conditions of these Terms.

‍BEYOND CLICKS PROFESSIONAL SERVICES ADDENDUM
‍This Professional Services Addendum (this “Addendum”) is an addendum to, and is hereby incorporated into the Beyond Clicks Terms of Service (the “Terms”). This Addendum sets forth the terms and conditions pursuant to which Beyond Clicks will provide consulting or other professional services to Subscriber pursuant to one or more Statements of Work (“Professional Services”). Capitalized Terms used but not defined in this Addendum have the meaning given to them in the Terms.

‍PROFESSIONAL SERVICES; STATEMENTS OF WORK; CHANGE ORDERS
‍1.1 - Professional Services. Subject to the terms and conditions of the Terms and this Addendum, Beyond Clicks will perform the Professional Services. Subscriber acknowledges that Beyond Clicks’s ability to provide the Professional Services may be affected if Subscriber does not provide reasonable assistance to Beyond Clicks.
1.2 - Statements of Work. The specific details of the Professional Services to be performed will be described in one or more written statements of work that are executed by both parties (each, a “Statement of Work”). Once executed by both parties, each Statement of Work will be a unique agreement that incorporates the Terms and this Addendum and stands alone with respect to all other Statements of Work.
1.3 - Change Orders. Unless otherwise specified in a Statement of Work, Subscriber may reasonably request in writing that revisions be made with respect to the Professional Services or deliverables set forth in that Statement of Work (“Change Order”). If a Change Order recites revisions that materially increase the scope of the Professional Services or the effort required to deliver deliverables under the applicable Statement of Work, then within 10 business days after Beyond Clicks’s receipt of the Change Order, Beyond Clicks will deliver to Subscriber a written, revised Statement of Work reflecting Beyond Clicks’s reasonable determination of the revised Professional Services, deliverables, delivery schedule, and payment schedule, if any, that will apply to the implementation of the revisions. If Subscriber approves the revised Statement of Work, then the parties will execute it, and upon execution, the revised Statement of Work will supersede the then-existing Statement of Work. If Subscriber does not approve the revised Statement of Work within 10 business days after its receipt by Subscriber, the then-existing Statement of Work will remain in full force and effect, and Beyond Clicks will have no further obligation with respect to the applicable Change Order.
1.4 - Project Management. Each party will designate a single point of contact within its organization to manage the Professional Services (“Project Leader”). The Project Leaders will meet as necessary to manage the Professional Services. Disputes will be escalated to more senior executives, if the Project Leaders are unable to resolve a problem.
1.5 - Performance Standard. Beyond Clicks will perform the Professional Services in accordance with the applicable Statement of Work, including any specifications in the Statement of Work. Beyond Clicks will use reasonable efforts to complete the Professional Services, including the delivery of any deliverables, in accordance with the schedule of times and milestones specified in the applicable Statement of Work.

‍PROPRIETARY RIGHTS
‍2.1 - Definitions.
2.1.A - "Pre-Owned IP" means any and all Technology owned by Beyond Clicks as of the effective date of the applicable Statement of Work or otherwise conceived, made, or discovered by Beyond Clicks outside of providing the Professional Services, and includes any Technology not specific to Subscriber’s business (such as frameworks, tools, methodologies, and plug-ins of general applicability)
2.1.B - “Subscriber-Owned Deliverables” means those deliverables specifically listed as being owned by Subscriber in a Statement of Work, but excluding any Pre-Owned IP contained in or delivered with the Subscriber-Owned Deliverables.
2.1.C - “Technology” means works of authorship, designs, inventions, improvements, developments, discoveries, trade secrets, and other technology.
2.2 - Ownership. Except for any Subscriber-Owned Deliverables and Subscriber Materials, all works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information (a) conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Beyond Clicks, solely or in collaboration with others, in the course of performing the Professional Services; or (b) that form all or part of a deliverable provided as part of the Professional Services, whether developed as part of the Professional Services or separately will be the sole property of Beyond Clicks. Upon and subject to final payment by Subscriber of all amounts owing to Beyond Clicks under the applicable Statement of Work, Beyond Clicks hereby assigns to Subscriber all right, title, and interest of Beyond Clicks in or to the Subscriber-Owned Deliverables.
2.3 - Pre-Owned IP. If in the course of performing the Professional Services, Beyond Clicks incorporates into any Subscriber-Owned Deliverable any Pre-Owned IP, Beyond Clicks will grant and hereby grants to Subscriber a nonexclusive, royalty free, perpetual, irrevocable, worldwide license to reproduce, manufacture, modify, distribute, use, import, and otherwise exploit such Pre-Owned IP solely as part of or in connection with the Subscriber-Owned Deliverable.

‍TERM; TERMINATION
‍3.1 - Term. Each Statement of Work will commence on the specified effective date and will continue for the term specified in the Statement of Work. Any Statement of Work in effect upon the expiration or termination of the Terms will automatically terminate.
3.2 - Termination for Material Breach. Either party may terminate a Statement of Work if the other party does not cure its material breach of the Terms or the Statement of Work within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 3.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period.
3.3 - Effect of Termination. Upon the expiration or termination of a Statement of Work for any reason: (i) Beyond Clicks will have no obligation to perform any Professional Services under the terminated Statement of Work after the effective date of the expiration or termination; (ii) Subscriber will pay to Beyond Clicks any Fees and other amounts payable for the Professional Services performed under the Statement of Work through the effective date of the expiration or termination; and (iii) the parties’ respective rights and obligations under the following sections with respect to any Professional Services covered by the terminated Statement of Work will survive: (i) Sections 2, 3.3, and 4 of this Addendum; and (ii) the Sections that survive termination of the Terms as specified in Section 6.5 of the Terms.

‍DISCLAIMER
‍BEYOND CLICKS DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF ANY DELIVERABLES. BEYOND CLICKS DOES NOT WARRANT THAT ANY DELIVERABLES ARE ERROR-FREE OR THAT OPERATION OF ANY DELIVERABLES WILL BE SECURE OR UNINTERRUPTED. BEYOND CLICKS EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE DELIVERABLES.