Beanbag Software License and Support Agreement

IMPORTANT - READ CAREFULLY

This Software License and Support Agreement (this "Agreement") is a binding legal agreement between you, either an individual or an entity ("Customer"), and Beanbag, Inc. ("Beanbag"), a Delaware corporation with a place of business at 2625 Middlefield Rd. #442, Palo Alto, CA 94306. In the event that you are entering into this Agreement on behalf of a third party entity, you represent and warrant that you have sufficient right to bind such third party to this Agreement, in which case, all references to "Customer" in this Agreement shall refer to such third party.

By purchasing, downloading, installing, or using the Software or Software Maintenance Services (each, as defined below), Customer agrees to be bound by the terms and conditions of this Agreement, including, among others, the provisions relating to automatic renewal in Section 7.5 (including the automatic charges related thereto), mandatory arbitration in Section 11.9.3, waiver of class actions rights in Section 11.9.4, and limitation of claims in Section 11.20. If Customer does not agree to these terms, Customer must not download, install, or use the Software or Software Maintenance Services, and may request a refund of applicable fees pre-paid in accordance with Beanbag's refund policy. Unless superseded by a separate signed agreement between Customer and Beanbag that explicitly states that such agreement will supersede this Agreement and control Customer's use of the Software and any provided Software Maintenance Services, this Agreement governs Customer's use of the Software and any associated Software Maintenance Services purchased from or provided by Beanbag.

This Agreement applies to the Software and to Software Maintenance Services provided by Beanbag. The provisions relating to Software Maintenance Services apply only if Customer has separately purchased such services as set forth in the applicable Ordering Documents.

Article 1 - Definitions

"Authorization Code(s)": means any key, authorization number, enablement code, login credential, activation code, token, account username and password, or other mechanism required for use of the Software.
"Documentation": means the non-promotional documentation or end user materials including, without limitation, reference, user, installation, systems administrator, and technical guides relating to the use of the Software provided by Beanbag.
"E-mail Support": means standard email support services through which Beanbag provides support via communication through an electronic mail address in response to a Customer-submitted request.
"Error(s)": means a repeatable error in the Software which materially degrades the Software as compared to Beanbag's published performance specifications.
"Fix": means the repair or replacement of object or executable code versions of Software to remedy an Error.
"Improvements": means all corrections, updates, upgrades, enhancements, releases, Fixes, new versions, or other improvements of or modifications to the Software which Beanbag makes available or otherwise provides to its customers generally.
"Normal Business Hours": means 9:00 a.m. to 5:00 p.m. Pacific Time, Monday through Friday, excluding U.S. federal holidays.
"Ordering Document(s)": means a sales quotation, purchase order, invoice, online order confirmation, or other document identifying the Software and/or Software Maintenance Services that Customer orders.
"Priority 1 Error": means an Error, for which there is no workaround, which (i) renders the Software inoperative or intermittently operative; (ii) substantially degrades performance of the Software; (iii) causes any material feature(s) of the Software to be unavailable or substantially impaired; (iv) causes the Software to materially fail to conform to the Documentation; or (v) causes a complete failure of the Software.
"Priority 2 Error": means an Error (i) which materially degrades the performance of the Software or materially restricts Customer's use of the Software, or (ii) which would normally be a Priority 1 Error, but there is a workaround available.
"Priority 3 Error": means an Error which causes only a minor impact or minor degradation on Customer's use of Software.
"Response Time": means the time elapsed between the report of an Error by Customer and the time of response, whether by phone, electronic mail or otherwise, by Beanbag's support personnel.
"Software": means all or any portion of Beanbag's proprietary software technology expressly set forth in a Ordering Document, which is licensed pursuant to the terms of this Agreement and accessed or downloaded from a Beanbag-authorized website or delivered by Beanbag on any media in any format, including, but not limited to, any Improvements provided.
"Software Maintenance Services": means the support and maintenance services described in Article 5 of this Agreement.
"Telephone Support": means technical support telephone assistance provided by Beanbag during Normal Business Hours from which Customer may obtain Software Maintenance Services, and the means of leaving voice messages during periods other than Normal Business Hours.
"Term License": means a license or access provided for use of Software for a limited time period (the "Term") or on a subscription or transaction basis.

Article 2 - Intellectual Property Rights and Reservation of Ownership

Software is licensed, not sold. Beanbag owns the Software and all copies, which are protected by United States and applicable international laws, treaties, and conventions regarding intellectual property and proprietary rights, including trade secrets. Customer agrees to use reasonable means to protect Software from unauthorized use, reproduction, distribution, or publication. Beanbag reserves all rights not specifically granted in this Agreement, including the right to change and improve Software. Beanbag and Customer acknowledge and agree that each party owns its Confidential Information.

Article 3 - Grant of License

Subject to the terms of this Agreement, Beanbag grants to Customer a personal, nonexclusive, nontransferable license solely to use the Software as set forth in the applicable Ordering Documents (i) for its own business purposes; (ii) in accordance with this Agreement; and (iii) for the applicable Term or, if no Term is applicable or identified, until terminated in accordance with Article 7.

Article 4 - Scope of Use

4.1 Permitted Uses

For Software delivered to Customer, Customer may:

Install and store Software on its own electronic storage device(s);
Make archival copies and routine computer backups solely as required by Customer's bona fide IT policies;
Install and use a newer version of Software concurrently with the version to be replaced during a reasonable transition period not to exceed six (6) months, provided that the deployment of either version does not exceed Customer's licensed quantity set forth in the applicable Ordering Document;
Move the Software in the licensed configuration to a replacement Customer-owned computer as necessary and in accordance with the licensed quantity. Upon successful download and implementation on the replacement computer, the Software shall be deleted from the previous computer or another computer to maintain the appropriate licensed quantity.

Consultant or Contractor Access. Subject to this Section 4.1, Beanbag grants Customer the right to permit Customer's employees, consultants or contractors to use the Software exclusively for Customer's internal business purposes. Customer shall be solely responsible and liable for actions taken by and omissions of employees, consultants and contractors and for such employees', consultants', or contractors' compliance with this Agreement. Customer shall ensure that such employees, consultants, or contractors immediately discontinue use of the Software upon completion of work for Customer or the expiration or termination of this Agreement. Access to or use of Software by employees, consultants, or contractors not exclusively for Customer's internal business purposes is strictly prohibited. If Customer discovers any such prohibited access or use by any such employee, consultant, or contractor, Customer shall immediately revoke access to such employee, consultant, or contractor and shall notify Beanbag of such prohibited use or access.

4.2 Uses Not Permitted

Except to the extent that applicable law prohibits or overrides these restrictions, or as otherwise provided herein, Customer shall not, and shall not permit any third party to:

Sell, rent, lease, sublicense, lend, time-share, or assign the Software;
Provide third parties with direct access to the Software;
Distribute Software to third parties, in whole or in part, including, but not limited to, extensions or components;
Distribute or otherwise make available Authorization Codes to third parties;
Reverse engineer, decompile, or disassemble the Software;
Make any attempt to circumvent the technological measure(s) that controls access to or use of Software or to access the source code thereof;
Store, download, modify, create derivative works of, cache, use, upload, distribute, sublicense, or otherwise use the Software in violation of Beanbag's or a third party's rights, including intellectual property rights, privacy rights, nondiscrimination laws, or any other applicable law or government regulation;
Remove or obscure any Beanbag (or its licensors') patent, copyright, trademark, proprietary rights notices, and/or legends contained in or affixed to any Software or metadata file delivered hereunder;
Use the Software to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses;
Unbundle or independently use individual or component parts of Software; or
Incorporate any portion of the Software into a product or service that competes with Beanbag or any Software provided or otherwise made available by Beanbag.

4.3 Verification

On at least thirty (30) days' prior written notice to Customer and during Customer's normal business hours, Beanbag may audit Customer's use of the Software to verify compliance with this Agreement. Audits shall be conducted in a manner intended to minimize disruption to Customer's business and information learned by Beanbag during such audit shall be subject to the confidentiality provision of Section 11.15. If an audit reveals that Customer has used the Software in excess of its licensed quantity, Customer shall pay (i) the additional license fees owed at Beanbag's then-current rates and (ii) Beanbag's audit costs if the overuse exceeds five percent (5%) of Customer's licensed quantity.

Article 5 - Software Maintenance Services

The provisions of this Article 5 apply only if Customer has purchased Software Maintenance Services as set forth in the applicable Ordering Documents.

5.1 Service Tiers

Beanbag offers two tiers of Software Maintenance Services: "Basic Support" and "Premium Support." The applicable tier shall be specified in the applicable Ordering Documents.

5.2 Basic Support

Basic Support includes, without limitation, E-mail Support and Improvements as necessary for Customer to use, install, and maintain the Software effectively and in material accordance with the Documentation. Basic Support includes a Response Time of twenty-four (24) hours.

5.3 Premium Support

Premium Support includes, without limitation, Telephone Support, E-mail Support, and Improvements as necessary for Customer to use, install, and maintain the Software effectively and in material accordance with the Documentation. Premium Support includes a Response Time of six (6) hours.

5.4 Maintenance for Prior Versions

Beanbag will provide Software Maintenance Services for the most recent version of the Software as set forth in the Ordering Documents and will provide Software Maintenance Services for the previous versions of the Software for at least twenty-four (24) months after their release, as long as there is still an applicable Ordering Document governing the use of such previous version of the Software.

5.5 Error Priority Levels

Beanbag shall correct any Error reported by Customer in the Software in accordance with the priority level reasonably assigned to such Error by Customer; provided, however, that if Beanbag in good faith believes the priority level assigned by Customer is materially inconsistent with the criteria for that priority level set forth in Sections 1(i) through 1(k), Beanbag may provide Customer with written notice of the proposed reclassification, including a brief explanation of the inconsistency in Beanbag's view. The parties shall confer in good faith for a period not to exceed two (2) business days regarding the appropriate priority level. If the parties do not reach agreement during the conferral period, Beanbag's reasonable assignment shall control.

5.5.1 In the event of any (i) crash of the Software, or of the host application in which the Software operates, that Customer reasonably believes is due to an Error in the Software and that causes a critical impact to Customer's business operations and where no workaround is available, or (ii) Priority 1 Errors, Beanbag shall begin work on the issue promptly upon receipt of a validly submitted Error report and use commercially reasonable efforts to resolve it as quickly as practicable.

5.5.2 In the event of any Priority 2 Errors, Beanbag shall exercise all commercially practicable efforts to include the Fix for the Error in the next regular Software maintenance release.

5.5.3 In the event of any Priority 3 Errors, Beanbag may include the Fix for the Error in the next major release of the Software.

5.6 Exclusions

Beanbag shall have no obligation to support:

Software which has been altered, damaged, or modified without Beanbag's written consent;
Errors related to hardware or third-party products not provided, specified, or authorized by Beanbag;
Errors arising from Force Majeure Events under Section 11.17;
Errors related to Preview Features as defined in Section 11.21 below;
Errors arising from Customer's failure to adhere to any required configurations or applicable Documentation, use supported platforms, follow any policies for acceptable use, or use of the Software in a manner inconsistent with the features and functionality of the Software or inconsistent with published guidance by Beanbag or related to Customer's own internal systems or technology stack;
Errors caused by Customer's (or Customer's employees, contractors or consultants, as applicable) gross negligence, abuse, or misapplication of the Software; or
Errors which can be remedied by implementation of a newer version of the Software that has been made available to Customer.

5.7 Service Level Commitments and Service Credits

(a) Response Time Commitments. Beanbag's Response Time commitments under Sections 5.2 and 5.3 are measured during Beanbag's normal business hours and apply to the time elapsed between Beanbag's receipt of an Error report validly submitted by Customer through Beanbag's designated support channels (and assigned by Customer to a priority level), including detailed description of the Error, information regarding the time, effects, and duration of the Error, the number and location(s) of affected users (if any), and any attempts made by Customer to resolve the Error. Beanbag's first response by trained support personnel. Acknowledgment of receipt by an automated system does not constitute a response stopping the measure of the Response Time.

(b) Premium Support Service Credits. The following service credits apply only to Customers with Premium Support and only with respect to Errors validly submitted in accordance with Section 5.7(a). For purposes of this Section 5.7(b), "Premium Support fees attributable to a calendar month" means the total Premium Support fees paid by Customer for the then-current Software Maintenance Services term, divided by the number of calendar months in that term.

i. If, in any calendar month, Beanbag fails to meet the applicable Response Time commitment for a particular Error report, Customer may, by notice given in accordance with Section 5.7(c), elect to receive a service credit equal to five percent (5%) of the Premium Support fees paid by Customer for that calendar month, per missed period of Response Time;

ii. The parties acknowledge and agree that the total service credits payable in any calendar month under Section 5.7(b)(i) shall not exceed twenty-five percent (25%) of the Premium Support fees paid by Customer for that calendar month; and

iii. Service credits shall be applied to Customer's next invoice for Software Maintenance Services or, if no further Software Maintenance Services are owed, refunded to Customer within thirty (30) days following the end of the calendar month in which Customer submitted a claim in accordance with Section 5.7(c) below.

(c) Claim Procedure. To request a service credit, Customer must submit a written claim to Beanbag within thirty (30) days following the end of the calendar month in which the alleged failure occurred. The claim shall identify each Error report for which a credit is claimed, the priority level assigned, the time of submission, and the time of Beanbag's first response (excluding automated system responses). Beanbag shall determine in good faith whether the conditions for a service credit have been met. Customer's failure to submit a timely claim waives Customer's right to a service credit for that period.

(d) Exclusions. Service credits do not apply to Response Time failures arising out of: (i) Force Majeure Events under Section 11.17; (ii) Customer's failure to comply with this Agreement or the Documentation; (iii) issues or Errors resulting from Customer's own infrastructure, networks, or third-party software not provided by Beanbag; (iv) Errors caused by Software which has been altered, damaged, or modified without Beanbag's written consent; (v) Customer's failure to provide reasonably requested information or cooperation in diagnosing the Error; (vi) Errors arising from any widespread internet failures or outages; (vii) planned maintenance or scheduled downtime of which Customer is notified at least twenty-four (24) hours in advance via Section 11.16 below; or (viii) Errors otherwise excluded under Section 5.6.

(e) Sole and Exclusive Remedy. The service credits described in this Section 5.7 are Customer's sole and exclusive remedy (and Beanbag's sole and exclusive liability) for any failure by Beanbag to meet a Response Time commitment under Sections 5.2 or 5.3. The service credits in this Section 5.7 are subject to, and do not increase, the limitations of liability set forth in Article 9.

(f) Basic Support. Customers with Basic Support are not entitled to service credits. Beanbag's commitments under Section 5.2 are made in good faith, but failure to meet the Basic Support Response Time does not give rise to any remedy under this Agreement.

Article 6 - Fees and Payment

License fees and Software Maintenance Services fees are as set forth in the applicable Ordering Documents. For purchases made through Beanbag's website, fees are due at the time of purchase and shall be paid via the Payment Processor terms set forth below. For other purchases via invoice, Customer shall pay all fees within thirty (30) days after Customer's receipt of Beanbag's invoice. All fees quoted to Customer are exclusive of any and all taxes or fees, including, but not limited to, sales tax, use tax, value-added tax (VAT), customs, duties, or tariffs, and shipping and handling charges. For any Term License or Software Maintenance Services that automatically renew under Section 7.5, Customer authorizes Beanbag to charge Customer's payment method on file for each renewal term in accordance with Section 7.5. If Customer does not make any payments when due under this Agreement, Customer shall: (a) pay Beanbag interest on such overdue amount at a rate equal to the lesser of 1.5% per month and the maximum rate permitted by applicable law, from the due date until paid to Beanbag; and (b) reimburse Beanbag for reasonable costs Beanbag incurs (including legal fees) in collecting any late payments. All payments received by Beanbag are non-refundable, except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars.

If Customer makes payments via credit card, Customer acknowledges that Beanbag currently uses Stripe, Inc. as its payment processors (a "Payment Processor") for payment services. As a condition to using such payment services, (a) Customer agrees to be bound by and comply with the applicable Payment Processor's terms of service ("Processor Agreement") and (b) Customer agrees to provide accurate and complete payment information. Customer authorizes Beanbag to share this information with the applicable Payment Processor and authorizes Beanbag and the Payment Processor to share any information and payment instructions Customer provides to the extent required to complete the payment services. All payment information is sent directly to and stored with the Payment Processor using their security protocols. Beanbag does not store payment information on its systems and shall not have any responsibility for the safety or security of that information. If the Processor Agreement or Customer's use of the applicable Payment Processor's services is terminated by the Payment Processor, Customer may not be able to use certain portions of the Service. Beanbag may change, add, or remove Payment Processors at any time with or without notice to Customer, and Customer's use of payment services via such Payment Processors may be subject to additional terms or conditions.

Article 7 - Term and Termination

7.1 Term

This Agreement is effective upon Customer's acceptance as set forth in the preamble hereto and shall continue until terminated as set forth in this Article 7. The term of any license or Software Maintenance Services purchased hereunder shall be specified in the applicable Ordering Documents.

7.2 Termination by Customer

Customer may terminate this Agreement, any Software license, or any Software Maintenance Services at any time upon thirty (30) days' written notice to Beanbag. Upon termination by Customer under this Section 7.2:

(a) license fees paid by Customer for any Software (including for any Term License) are non-refundable, except as expressly provided elsewhere in this Agreement or as required by applicable law; and

(b) Beanbag shall refund to Customer a prorated portion of any Software Maintenance Services fees already paid that correspond only to the unused portion of the then-current Software Maintenance Services term for the period of time prepaid, if any, when the termination of this Agreement or the Ordering Document becomes effective.

7.3 Termination for Breach

Either party may terminate this Agreement, any license, or any Software Maintenance Services for a material breach that is not cured within thirty (30) days of written Notice to the breaching party; provided that a party may terminate immediately upon written Notice being provided to the other party for a material breach that Beanbag reasonably believes is impossible to cure; provided, further, that for payment obligations pursuant to Article 6 above, the cure period will be ten (10) days of written Notice to Customer. Without limiting the generality of the foregoing, material breach of this Agreement shall include, but is not limited to: (i) Customer's breach of the use restrictions in Section 4.2; (ii) Customer's failure to pay any undisputed fees within ten (10) days after written notice from Beanbag; (iii) Customer's breach of the export control obligations in Section 11.2 or the anti-corruption and sanctions compliance obligations in Section 11.22; (iv) either party's breach of the confidentiality obligations in Section 11.15; and (v) Customer's failure to maintain at least the minimum number of licenses required by an applicable Ordering Document.

Notwithstanding anything to the contrary in this Agreement, Beanbag may suspend Customer's access and use of the Software if Beanbag determines that: (a) there is an attack on the Software; (b) Customer's or any of its authorized users' use of the Software poses a reasonable risk of harm or liability to Beanbag or the Software and, if capable of being cured, Customer is not promptly taking appropriate action to cure such risk; (c) Customer has breached Sections 4.2 and 11.15; (d) Customer's or its authorized users' use of the Software violates applicable law; or (e) Customer has failed to pay any undisputed amounts owed under this Agreement or the applicable Ordering Document when due and has failed to cure such late payment within ten (10) days after Beanbag has provided Customer with written Notice of such overdue payment. Beanbag shall use commercially reasonable efforts to provide Customer with Notice of such suspension. Beanbag may suspend Customer's access to the Software until the situation giving rise to the suspension has been remedied to Beanbag's reasonable satisfaction. Except for suspension under Subsection (a), Beanbag's suspension of Customer's access to the Software will not relieve Customer of its payment obligations under this Agreement.

7.4 Effect of Termination

Upon termination of this Agreement, all licenses, Ordering Documents subject to this Agreement, and Software Maintenance Services granted hereunder terminate as well. Upon termination of a license, an applicable Ordering Document, or this Agreement, Customer will (and will cause all employees, contractors, and consultants to) (i) stop accessing and using the Software; and (ii) uninstall, remove, and destroy (upon request of Beanbag to destroy) all copies of the affected Software in Customer's possession or control, including any modified or merged portions thereof, in any form, and execute and deliver evidence of such actions to Beanbag.

7.5 Automatic Renewal

(a) Auto-Renewal Terms. Unless the applicable Ordering Document expressly provides otherwise, any Term License or Software Maintenance Services purchased on a subscription basis will automatically renew at the end of the then-current term for successive renewal terms of the same length as the initial term, at Beanbag's then-current renewal rate for the applicable Software or service. The specific auto-renewal terms, including the term length, renewal price, and cancellation mechanism, will be communicated to Customer at the time of purchase or contained within the Ordering Document as applicable.

(b) Cancellation of Auto-Renewal. Customer may cancel auto-renewal at any time by (i) using the cancellation mechanism available in Customer's account on Beanbag's website, (ii) sending written notice to support@beanbaginc.com (or such other address as Beanbag may designate), or (iii) any other mechanism Beanbag makes available for that purpose, if any. Cancellation of auto-renewal takes effect at the end of the then-current term, as long as Customer has provided notice of its intent to not automatically renew in accordance with the preceding methods at least thirty (30) days prior to the end of the then-current term, unless provided otherwise herein. Customer remains responsible for fees through the end of such term, and Customer's license or Software Maintenance Services continue through the end of such term unless terminated earlier under Article 7.

(c) Renewal Notice. For any auto-renewing license or Software Maintenance Services with a term of one (1) year or longer, Beanbag shall provide Customer with at least thirty (30) days' prior written notice before each renewal date, sent to the email address on file for Customer's account. The notice shall identify the upcoming renewal date, the length of the renewal term, and the renewal price.

(d) Price Changes at Renewal. Beanbag may change the rate applicable to a renewal term from the rate paid for the prior term, provided that, for any change in rates of greater than three percent (3%), Beanbag shall provide Customer at least thirty (30) days' prior written notice of the new rate before the renewal date. If Customer does not wish to accept such new rate containing an increase of 3% from the previous year, Customer may cancel auto-renewal as set forth in Section 7.5(b) within thirty (30) days of receipt of such notice.

(e) Acknowledgment and Consent. By accepting this Agreement and completing the purchase of any auto-renewing Term License or Software Maintenance Services, Customer acknowledges and consents to (i) the automatic renewal of the license or services on the terms described in this Section 7.5 and in the applicable Ordering Document, (ii) the charging of Customer's payment method on file on each renewal date for the applicable renewal fees, and (iii) the cancellation procedures set forth in Section 7.5(b).

Article 8 - Limited Warranties and Disclaimers

8.1 Limited Warranties

Except as otherwise provided in this Article 8, Beanbag warrants:

a. for a period of ninety (90) days from the date Beanbag issues the Authorization Code enabling use of Software, that the unmodified Software will substantially conform, in all material respects, to the then-current published Documentation applicable to the version of Software provided to Customer; and

b. for a period of ninety (90) days from the date of delivery, that any Fixes to the Software provided as part of Software Maintenance Services will substantially conform, in all material respects, to the then-current published Documentation applicable to such Fixes.

8.2 Special Disclaimer

Hot fixes, patches, and updates provided on a no-fee basis are delivered "as is" without warranty of any kind in addition to the disclaimer made below in Sections 8.3, 8.4, and 9.1 below.

8.3 Internet Disclaimer

The parties expressly acknowledge and agree that the internet is a network of private and public networks and that (i) the internet is not a secure infrastructure, (ii) the parties have no control over the internet, and (iii) none of the parties shall be liable for damages under any theory of law related to the performance or discontinuance of operation of any portion of the internet or possible regulation of the internet that might prohibit the operation of the Software.

8.4 General Disclaimer

Except for the above express limited warranties, Beanbag disclaims all other warranties or conditions of any kind, whether express or implied, including, but not limited to, warranties or conditions of merchantability and fitness for a particular purpose, system integration, and non-infringement of intellectual property rights and any warranties arising from course of dealing or course of performance. Beanbag does not warrant that the Software will meet Customer's needs; that Customer's operation of the same will be uninterrupted, error-free, fault-tolerant, or fail-safe; or that all nonconformities can or will be corrected. With respect to Software Maintenance Services, Beanbag will make all commercially reasonable efforts to solve support issues; however, Beanbag does not warrant that every support issue can be solved.

8.5 Exclusive Remedy

Customer's exclusive remedy and Beanbag's entire liability for breach of the limited warranties set forth in this Article 8 shall be limited, at Beanbag's sole discretion, to (i) replacement of any defective media; (ii) repair, correction, or a workaround for Software or Fixes; or (iii) return of the portion of Software Maintenance Services fees, as applicable, paid by Customer for the affected services if a Fix cannot be provided; provided that Customer uninstalls, removes, and destroys all copies of Software and executes and delivers evidence of such actions to Beanbag.

Article 9 - Limitation of Liability

9.1 Disclaimer of Certain Types of Liability

BEANBAG SHALL NOT BE LIABLE TO CUSTOMER FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS, LOST SALES, OR BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF SOFTWARE OR SOFTWARE MAINTENANCE SERVICES, HOWEVER CAUSED ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER OR NOT BEANBAG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9.2 General Limitation of Liability

EXCEPT AS PROVIDED IN SECTIONS 10.1 THROUGH 10.4, THE TOTAL CUMULATIVE LIABILITY OF BEANBAG HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR THE SOFTWARE OR SOFTWARE MAINTENANCE SERVICES THAT GIVE RISE TO THE CAUSE OF ACTION.

9.3 Applicability of Disclaimers and Limitations

Customer agrees that the limitations of liability and disclaimers set forth in this Agreement will apply regardless of whether Customer has accepted the Software, Software Maintenance Services, or any other product or service delivered by Beanbag. The parties agree that Beanbag has set its fees and entered into this Agreement in reliance on the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

THE FOREGOING WARRANTIES, LIMITATIONS, AND EXCLUSIONS MAY NOT BE VALID IN SOME JURISDICTIONS AND APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER'S JURISDICTION. CUSTOMER MAY HAVE ADDITIONAL RIGHTS UNDER LAW THAT MAY NOT BE WAIVED OR DISCLAIMED. BEANBAG DOES NOT SEEK TO LIMIT CUSTOMER'S WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.

Article 10 - Indemnification

Beanbag's Indemnification of Customer

10.1 Beanbag shall defend, indemnify, and hold Customer harmless from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, that Customer incurs as a result of any claims, actions, or demands brought against Customer by an unaffiliated third party alleging that the Software infringes a US patent, copyright, or trademark, provided:

Customer promptly notifies Beanbag in writing of the claim;
Customer provides documents describing the allegations of infringement and circumstances surrounding such allegations or claims;
Beanbag has sole control of the defense of any action and negotiation related to the defense or settlement of any claim; and
Customer reasonably cooperates in the defense of the claim at Beanbag's request and expense.

10.2 If Software is found to infringe a U.S. patent, copyright, or trademark, Beanbag, at its own expense, may either (i) obtain rights for Customer to continue using the Software; (ii) modify the allegedly infringing elements of the Software, provided that the modified Software continues to provide, in all material respects, the core functionality described in the then-current published Documentation applicable to the version of the Software utilized by the Customer; or (iii) if such claims are related to a previous version of the Software, Beanbag may provide the then-current version of the Software for Customer to immediately install and utilize instead of the previous, allegedly infringing version of the Software. If neither alternative is commercially reasonable, the license shall terminate, and Customer shall uninstall and return to Beanbag any infringing item(s). Beanbag's entire liability shall then be to indemnify Customer pursuant to Section 10.1 and refund the unused portion of the fees paid.

10.3 Beanbag shall have no obligation to defend Customer or to pay any resultant costs, damages, or attorneys' fees for any claims or demands alleging direct or contributory infringement to the extent arising out of (i) the combination or integration of Software with a product, process, or system not supplied by Beanbag; (ii) alteration of Software by anyone other than Beanbag or its subcontractors; or (iii) use of Software after modifications have been provided by Beanbag for avoiding infringement or use after a return is ordered by Beanbag.

10.4 The foregoing states the entire obligation of Beanbag with respect to infringement or allegation of infringement of intellectual property rights of any third party.

Customer's Indemnification of Beanbag

10.5 Customer Indemnification. Customer shall defend, indemnify, and hold harmless Beanbag and its officers, directors, employees, and agents (collectively, the "Beanbag Indemnitees") from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, that any Beanbag Indemnitee incurs as a result of any third-party claim, action, or demand arising out of or related to:

Customer's breach of this Agreement, including without limitation the use restrictions in Section 4.2 and the export control obligations in Section 11.2;
Customer's misuse of the Software or Software Maintenance Services;
Customer's violation of any applicable law or regulation;
The combination or integration of the Software with any third-party product, service, system, or data not supplied by Beanbag, except to the extent the claim arises solely from the unmodified Software as delivered by Beanbag;
Any modification of the Software by Customer or by anyone other than Beanbag or its subcontractors; or
Any data, content, or materials provided or transmitted by Customer to Beanbag, including without limitation in connection with Software Maintenance Services.

The indemnification obligations in this Section 10.5 are subject to: (a) Beanbag promptly notifying Customer in writing of the claim; (b) Customer having sole control of the defense and any settlement of the claim, provided that Customer shall not enter into any settlement that imposes any liability or obligation on any Beanbag Indemnitee (other than payment of money for which Customer is fully responsible) or that includes any admission of fault on the part of any Beanbag Indemnitee without Beanbag's prior written consent (such consent not to be unreasonably withheld); and (c) Beanbag reasonably cooperating in the defense of the claim at Customer's request and expense. Beanbag may, at its own expense, participate in the defense with counsel of its own choosing.

Article 11 - General Provisions

11.1 Future Updates

Use of the Software and Software Maintenance Services under this Agreement is covered by the terms and conditions contained herein. New or updated versions of the Software may require additional or revised terms of use under the then-current Beanbag Software License and Support Agreement. Beanbag will provide Notice of new or revised terms to Customer. Continued use or access to such Software or Software Maintenance Services after such notice is provided shall be deemed Customer's acceptance of such then-current terms.

11.2 Export Control Regulations

Customer expressly acknowledges and agrees that Customer shall not export, reexport, import, transfer, or release the Software, in whole or in part, to (i) any US embargoed country; (ii) any person on the US Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the US Commerce Department's Denied Persons List, Entity List, or Unverified List (as such terms are used by the United States government); or (iv) any person or entity or into any country where such export, reexport, or import violates any US, local, or other applicable import/export control laws or regulations including, but not limited to, the terms of any import/export license or license exemption and any amendments and supplemental additions to those import/export laws as they may occur from time to time.

11.3 No Implied Waivers

The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.

11.4 Severability

The parties agree that if any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable.

11.5 Successors and Assigns

Customer shall not assign, sublicense, or transfer Customer's rights or delegate Customer's obligations under this Agreement without Beanbag's prior written consent, and any attempt to do so without consent shall be void. Notwithstanding the foregoing, Customer may assign this Agreement, upon written notice to Beanbag and without Beanbag's consent, to a successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Customer's assets or equity, provided that the assignee assumes in writing all of Customer's obligations under this Agreement and is not a competitor of Beanbag. This Agreement shall be binding on the respective successors and assigns of the parties to this Agreement. Notwithstanding the foregoing, a government contractor under contract to the government to deliver the Software may assign this Agreement and the Software acquired for delivery to its government customer upon written notice to Beanbag, provided the government customer assents to the terms of this Agreement.

11.6 Survival of Terms

The use restrictions in Section 4.2, the service-credit claim procedure in Section 5.7(c), and the provisions of Articles 1, 2, 6, 7.4, 8, 9, 10, and 11 of this Agreement shall survive the expiration or termination of this Agreement.

11.7 Equitable Relief

Each party agrees that any breach of this Agreement by the other party may cause irreparable damage and that, in the event of such breach, in addition to any and all remedies at law, the non-breaching party shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or proving injury as a condition for relief.

11.8 US Government Customer

The Software is a commercial item, developed at private expense, provided to Customer under this Agreement. If Customer is a US government entity or US government contractor, Beanbag licenses the Software to Customer in accordance with this Agreement under FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202. The commercial license rights in this Agreement strictly govern Customer's use, reproduction, or disclosure of the Software. Customer may transfer the Software to any licensed government procuring agency facility to which computer(s) on which the Software is installed are transferred. If any court, arbitrator, or board holds that Customer has greater rights to any portion of the Software under applicable public procurement law, such rights shall extend only to the portions affected.

11.9 Governing Law, Dispute Resolution; Arbitration

11.9.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to conflict of laws principles, except that US federal law shall govern in matters of intellectual property. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

11.9.2 Informal Dispute Resolution. Before either party initiates arbitration or any other formal proceeding under this Agreement (other than a request for equitable relief under Section 11.7 or a claim within an applicable carve-out under Section 11.9.6), the party initiating the dispute shall provide written Notice to the other party describing the nature and basis of the claim and the relief sought. The parties shall then engage in good-faith negotiation for a period of at least thirty (30) days from receipt of such Notice (or such other period as the parties may mutually agree to in writing) before initiating arbitration.

11.9.3 Mandatory Arbitration. Except as provided in Section 11.9.6, any dispute, controversy, or claim arising out of or relating to this Agreement or the breach thereof that is not resolved through the informal process in Section 11.9.2 shall be finally settled, after the informal dispute resolution process set forth in Section 11.9.2, by binding arbitration as follows:

Arbitration shall be administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules, (or, if customer is not located within the United States or its territories, then the Rules of Arbitration of the International Chamber of Commerce) then in effect. The language of arbitration shall be English. Judgment on the award rendered by the arbitrator may be entered in a court of competent jurisdiction. The arbitration shall be conducted in Santa Clara County, California, or, at Beanbag's option, by remote videoconference or telephonic hearing. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including specific performance and injunctive relief, but shall have no authority to award any damages excluded or limited by this Agreement. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, including the state and federal courts located in Santa Clara County, California. Nothing in this Section 11.9.3 will restrict either party's freedom to (a) commence legal proceedings to preserve any legal right or remedy (including, for clarity, seeking temporary, interim, or preliminary injunctive or other equitable relief) or to protect any intellectual property rights or Confidential Information, whether by way of injunctive relief or otherwise, or (b) seek emergency relief in accordance with the Commercial Arbitration Rules or Rules of Arbitration, as applicable.

11.9.4 Class Action and Collective Action Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY AGREES THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. Customer and Beanbag each waive any right to participate as a class representative or class member in, or to consolidate or join, any class, collective, representative, or private attorney general action against the other party pertaining to this Agreement or an Ordering Document. Any arbitrator shall not have authority to consolidate or join the claims of multiple parties or to preside over any form of class, collective, or representative proceeding.

11.9.5 Jury Trial Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ORDERING DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY. This waiver applies in the event any portion of this Section 11.9 is held unenforceable, and a dispute is heard by a court rather than an arbitrator.

11.9.6 Exceptions. Notwithstanding Sections 11.9.3 through 11.9.6, either party may bring an action in a court of competent jurisdiction for: (a) the equitable relief described in Section 11.7 (including injunctive relief to protect intellectual property or confidential information); (b) claims that may be heard by a small claims court, provided the claim is brought in that court and is not removed or appealed to a court of general jurisdiction; and (c) claims that, under applicable law, cannot be subject to mandatory pre-dispute arbitration.

11.9.7 Severability of Arbitration Provisions. If the class action waiver in Section 11.9.4 is found unenforceable in any particular dispute and that finding is upheld on appeal (or appellate review is exhausted or unavailable), then Section 11.9.3 (Mandatory Arbitration) shall be null and void as to that dispute only, and the dispute shall be litigated in a court of competent jurisdiction located in Santa Clara County, California, but the remainder of this Section 11.9 (including the jury trial waiver in Section 11.9.5) shall remain in full force and effect. If any other portion of this Section 11.9 is held unenforceable, that portion shall be reformed only to the extent necessary to make it enforceable, with the remainder of this Section 11.9 unaffected.

11.10 Feedback

Beanbag may freely use any feedback, ideas, comments, suggestions, or requests for Software, Software Maintenance Services, Preview Features, or service improvements that Customer provides to Beanbag ("Feedback") for any legal purpose. Customer agrees that Feedback shall be owned by Beanbag, and accordingly, Beanbag will be free to use, disclose, and exercise any rights in the same in connection with the Software, Software Maintenance Services, Preview Features, or service improvement with no financial, credit, confidentiality, or other obligation to Customer. Customer shall not include its Confidential Information in any Feedback. Customer shall, and hereby does, assign to Beanbag Customer's entire right, title, and interest in and to any Feedback. In the event that any of Customer's rights with respect to any Feedback are not fully assignable or otherwise transferable to Beanbag for any reason whatsoever, Customer shall, and hereby does, grant to Beanbag an exclusive, irrevocable, perpetual, royalty-free, fully paid-up, worldwide license in and to all of Customer's rights with respect to such Feedback and all intellectual property rights therein.

11.11 Patents

Customer may not seek, and may not permit any other user to seek, a patent or similar right worldwide that is based on, references, contains, or otherwise incorporates any Beanbag technology, services, or intellectual property rights. This express prohibition on patenting shall not apply to Customer's software and technology except to the extent that Beanbag technology or services, or any portion or component thereof, are a part of, referenced in, or otherwise are incorporated into any claim or preferred embodiment in a patent application or a similar application.

11.12 Entire Agreement

This Agreement, including its incorporated documents and any applicable Ordering Documents, constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements, understandings, and arrangements between the parties relating to such subject matter, including any prior Beanbag License Agreement or Software Support and Maintenance Agreement covering the same subject matter. Additional or conflicting terms set forth in any purchase orders, invoices, or other standard form documents exchanged during the ordering process are void and of no effect.

11.13 Modification of this Agreement

11.13.1 Modifications by Mutual Agreement. Except as provided in Sections 11.13.2 through 11.13.4, any modification or amendment to this Agreement must be in writing and signed (including by electronic signature) by an authorized representative of each party.

11.13.2 Modifications Applicable to New Purchases and Renewals. Beanbag may modify the terms of this Agreement applicable to new purchases of the Software or Software Maintenance Services, or to renewals of existing licenses or Software Maintenance Services, by posting an updated version of this Agreement on Beanbag's website. Modifications under this Section 11.13.2 take effect for purchases or renewals made on or after the date the updated Agreement is posted. The version of this Agreement in effect at the time of Customer's most recent purchase or renewal shall continue to govern that purchase or renewal for the duration of its term, except as provided in Sections 11.13.3 and 11.13.4.

11.13.3 Modifications During an Existing Term. If Beanbag wishes to materially modify the terms of this Agreement applicable to Customer's then-current license term or Software Maintenance Services term (other than as permitted by Section 11.13.4), Beanbag shall provide Customer with at least thirty (30) days' prior written notice of such modification, sent to the email address on file for Customer's account. If the modification has a material adverse effect on Customer, Customer may terminate the affected license or Software Maintenance Services by providing written Notice to Beanbag delivered no later than thirty (30) days after Customer's receipt of Notice of the materially adverse modification, and Beanbag shall promptly refund to Customer the prorated portion of any prepaid fees corresponding to the unused portion of the Software Maintenance Services for the affected term. Customer's continued use of the Software or Software Maintenance Services after the effective date of such modification, without timely notice of termination under this Section 11.13.3, constitutes Customer's acceptance of the modified terms.

11.13.4 Modifications Required by Law. Notwithstanding Sections 11.13.1 through 11.13.3, Beanbag may modify this Agreement at any time as required by applicable law, regulation, or court order, with such prior notice to Customer as is reasonably practicable under the circumstances. Modifications under this Section 11.13.4 do not give Customer a right to terminate or a right to refund except to the extent required by the applicable law, regulation, or order.

11.14 Electronic Signatures and Acceptance

Customer acknowledges and agrees that clicking "I Accept," completing a purchase that requires acceptance of this Agreement, or any similar electronic mechanism by which Customer indicates acceptance of this Agreement, constitutes Customer's electronic signature and binds Customer to the terms of this Agreement to the same extent as a handwritten signature, in accordance with the United States Electronic Signatures in Global and National Commerce Act (E-SIGN), the Uniform Electronic Transactions Act (UETA), and any analogous laws in Customer's jurisdiction. Each party further consents to conduct the transactions contemplated by this Agreement by electronic means.

11.15 Confidentiality

(a) Definition. "Confidential Information" means any non-public information disclosed by one party (the "Disclosing Party") to the other (the "Receiving Party") in connection with this Agreement, whether disclosed orally, in writing, or by inspection of tangible objects, that is identified as confidential at the time of disclosure or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation: (i) the Software (including its source code and underlying architecture), Documentation, and Improvements; (ii) Beanbag's pricing, discounts, and non-public commercial terms; (iii) the existence and terms of any non-public Ordering Documents; (iv) information exchanged in connection with Software Maintenance Services, including support tickets, Error reports, and reproduction cases; (v) Customer's non-public business information disclosed to Beanbag in the course of Customer's use of the Software or receipt of Software Maintenance Services; and (vi) any other information that the Receiving Party knew or reasonably should have known to be confidential.

(b) Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no breach of this Agreement by the Receiving Party; (ii) was known to the Receiving Party without obligation of confidentiality before its disclosure by the Disclosing Party, as evidenced by the Receiving Party's contemporaneous written records; (iii) is rightfully received by the Receiving Party from a third party without restriction on disclosure and without breach of any duty of confidentiality; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information, as evidenced by the Receiving Party's reasonable written records.

(c) Obligations. The Receiving Party shall: (i) use the Confidential Information solely for the purposes of performing its obligations and exercising its rights under this Agreement; (ii) not disclose Confidential Information to any third party except to its employees, contractors, consultants, advisors, and affiliates who have a legitimate need to know for purposes of this Agreement and who are bound by written confidentiality obligations at least as protective as those in this Section 11.15; and (iii) protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar importance, but in no event less than reasonable care. The Receiving Party shall be responsible for any breach of this Section 11.15 by its employees, contractors, consultants, advisors, or affiliates.

(d) Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required by law, regulation, court order, or governmental authority, provided that the Receiving Party (where legally permitted) gives the Disclosing Party prompt written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy, and the Receiving Party reasonably cooperates (to the extent legally permitted) with the Disclosing Party in any such efforts at the Disclosing Party's expense.

(e) Return or Destruction. Upon termination of this Agreement, or earlier upon the Disclosing Party's written request, the Receiving Party shall, at the Disclosing Party's option, return or destroy all Confidential Information of the Disclosing Party in its possession or control, and upon request certify such return or destruction in writing. The Receiving Party may retain Confidential Information to the extent (i) required by law or regulation, (ii) maintained as part of routine backup procedures and not readily accessible to operational personnel, or (iii) reasonably necessary to enforce this Agreement; in each case the retained Confidential Information remains subject to the obligations of this Section 11.15.

(f) Equitable Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in breach of this Section 11.15 may cause irreparable harm to the Disclosing Party for which monetary damages would be inadequate. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party shall be entitled to seek injunctive or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or proving actual damages.

(g) No License. Nothing in this Section 11.15 grants the Receiving Party any rights in or to the Confidential Information of the Disclosing Party other than as expressly set forth in this Agreement.

11.16 Notices

(a) Form and Delivery. Except as expressly provided otherwise in this Agreement, all formal notices, requests, consents, and other communications under this Agreement (collectively, "Notices") shall be in writing and may be delivered as follows:

To Beanbag, by any of the following methods: (i) email to legal@beanbaginc.com (or such other address as Beanbag may designate by Notice given in accordance with this Section 11.16); or (ii) personal delivery, certified or registered mail with postage prepaid and return receipt requested, or nationally recognized overnight courier with tracking, in each case to Beanbag, Inc., 2625 Middlefield Rd. #442, Palo Alto, CA 94306, Attention: Legal Department.

To Customer, by email to the email address Customer has on file in Customer's account on Beanbag's website. If Customer has provided Beanbag (or Beanbag's payment processor in connection with billing) with a postal mailing address, Beanbag may, at its option, additionally deliver any Notice by personal delivery, certified or registered mail with postage prepaid and return receipt requested, or nationally recognized overnight courier with tracking to that mailing address. Customer is not required to provide a postal mailing address, and Notices delivered to Customer's account email address alone are sufficient and effective under this Agreement.

(b) Effective Date. A Notice shall be deemed received: (i) on the date of transmission, if sent by email, except that if the sender receives an automated bounce-back or non-delivery message within twenty-four (24) hours of transmission, the Notice shall not be deemed received until the sender successfully delivers the Notice by another method permitted under Section 11.16(a); (ii) upon delivery, if delivered personally; (iii) three (3) business days after deposit in the mail, if sent by certified or registered mail; or (iv) one (1) business day after deposit, if sent by overnight courier. For purposes of this Section, "business day" means any day other than a Saturday, Sunday, or federal holiday in the recipient's location.

(c) Change of Notice Address. Beanbag may change its notice address by providing Customer with Notice of the change in accordance with this Section 11.16. Customer is responsible for keeping Customer's email address and any other contact information on file in Customer's account current. Notices sent to the email address on file for Customer's account shall be effective even if Customer has not opened or accessed the email, except as provided in Section 11.16(b)(i).

(d) Operational Communications. Notwithstanding the foregoing, routine operational communications (including service announcements, scheduled maintenance notifications, support communications, billing receipts, and renewal notices under Section 7.5(c)) may be delivered to Customer by email to Customer's account email address only, and shall be deemed received on the date of transmission by Beanbag.

11.17 Force Majeure

(a) Excused Performance. Neither party shall be liable for, nor be in breach of this Agreement as a result of, any failure or delay in performance of its obligations under this Agreement (other than payment obligations) to the extent such failure or delay is caused by an event beyond the affected party's reasonable control (a "Force Majeure Event"), including without limitation: acts of God; natural disasters (including earthquakes, floods, hurricanes, and wildfires); fire; war, armed conflict, terrorism, or civil unrest; epidemics, pandemics, or quarantines; labor disputes, strikes, or lockouts not isolated to the affected party's own workforce; cyber-attacks, denial-of-service attacks, or widespread internet or telecommunications outages; failure of utilities or third-party services or infrastructure not under the affected party's reasonable control; and acts, orders, or restrictions of any governmental authority.

(b) Notice and Mitigation. The affected party shall promptly notify the other party of the Force Majeure Event and shall use commercially reasonable efforts to mitigate the impact of the Force Majeure Event and to resume performance as soon as reasonably practicable.

(c) Termination for Extended Force Majeure. If a Force Majeure Event continues to materially impair the affected party's performance for more than ninety (90) consecutive days, either party may terminate the affected license or Software Maintenance Services upon written notice to the other party, and Beanbag shall promptly refund to Customer the prorated portion of any prepaid fees corresponding to the unused portion of the affected term.

(d) No Excuse for Payment Obligations. For the avoidance of doubt, this Section 11.17 does not excuse Customer's obligation to pay any fees due under this Agreement for the Software or Software Maintenance Services already delivered or for any term during which Customer continues to use the Software or Software Maintenance Services.

11.18 Consumer Rights Acknowledgment

Intended for Business Customers. The Software and Software Maintenance Services are intended for, and offered to, customers acting in a business or professional capacity. By accepting this Agreement, Customer represents that Customer is acting for purposes related to Customer's trade, business, craft, or profession. Customer may qualify as a "consumer" under certain jurisdictions with mandatory protections under such jurisdictions. In the event that such mandatory protections conflict with the terms of this Agreement, such mandatory protection shall control solely to the extent absolutely necessary to resolve such conflict. All other terms and conditions shall remain unchanged.

11.19 Use of Artificial Intelligence and Machine Learning

(a) Restriction on Training with Customer Confidential Information. Beanbag shall not use Customer's Confidential Information (including without limitation any data, content, code, or materials Customer provides to Beanbag in connection with Software Maintenance Services or otherwise) to train, fine-tune, or otherwise develop the underlying weights or parameters of any artificial intelligence or machine learning model, except (i) with Customer's prior written consent or (ii) where such information has been irreversibly de-identified and aggregated such that it cannot reasonably be associated with Customer or any individual. Customer acknowledges and agrees that such de-identified and aggregated data shall be the Confidential Information of Beanbag.

(b) AI Tools Used in Service Delivery. Notwithstanding Section 11.19(a), Beanbag may use artificial intelligence and machine learning tools, including third-party tools, to process Customer's Confidential Information in the course of providing the Software or Software Maintenance Services to Customer (for example, to assist in triaging support tickets, summarizing communications, drafting responses, or analyzing error reports), provided that any such third-party tools are subject to contractual obligations materially similar to the confidentiality obligations in Section 11.15 and do not retain or use Customer's Confidential Information to train, fine-tune, or otherwise develop the third party's own artificial intelligence or machine learning models, unless consented to by Customer.

(c) Customer's Use of Beanbag Products and Materials. Customer shall not use the Software, Documentation, or any other portion of Beanbag's Confidential Information to train, fine-tune, or otherwise develop the underlying weights or parameters of any artificial intelligence or machine learning model, including without limitation any model intended to replicate, compete with, or substitute for the functionality of the Software.

(d) Aggregated and De-identified Data. Beanbag may collect, generate, and use aggregated and de-identified data derived from Customer's use of the Software and Software Maintenance Services for any lawful purpose, including without limitation analytics, product improvement, benchmarking, security research, and machine learning model development, provided that such data does not identify Customer or any authorized user and cannot reasonably be re-associated with Customer or any authorized user. Such aggregated and de-identified usage data is the Confidential Information of Beanbag.

11.20 Limitation Period for Claims

(a) Time Limit. To the fullest extent permitted by applicable law, any claim, action, or proceeding by either party against the other arising out of or related to this Agreement, the Software, or the Software Maintenance Services must be commenced within one (1) year after the cause of action first accrues, or such claim, action, or proceeding shall be permanently barred. A cause of action shall be deemed to accrue on the date the claimant first knew, or in the exercise of reasonable diligence should have known, of the facts giving rise to the claim. Each party knowingly waives any longer statute of limitations that would otherwise apply, to the extent permitted by applicable law.

(b) Exceptions. The limitation period in Section 11.20(a) does not apply to:

Claims for non-payment of fees due under this Agreement;
Claims for breach of confidentiality obligations under Section 11.15 or for misappropriation of trade secrets, which shall be subject to the statute of limitations applicable to such claims under applicable law;
Claims for infringement of intellectual property rights, which shall be subject to the applicable statute of limitations under law;
Indemnification claims under Article 10, which accrue upon the assertion of the third-party claim giving rise to the indemnification obligation; or
Any claim that, under applicable law, cannot be subject to a contractually-shortened limitation period.

11.21 Preview, Beta, and Experimental Features

(a) Definition. From time to time, Beanbag may make available to Customer features, functionality, or services that Beanbag designates as "preview," "beta," "alpha," "early access," "experimental," "developer preview," or by similar terminology (collectively, "Preview Features"). Preview Features are made available solely for the purpose of evaluation and feedback and are not considered part of the Software or Software Maintenance Services for purposes of this Agreement, except as expressly provided in this Section 11.21.

(b) "As Is" Basis. Preview Features are provided "as is" and "as available," without any warranty of any kind, express or implied. The limited warranties in Article 8, the Software Maintenance Services obligations in Article 5, and Beanbag's indemnification obligations in Sections 10.1 through 10.4 do not apply to Preview Features. Beanbag makes no representation or warranty that Preview Features will be made generally available, will function as intended, will be free from defects, or will be supported.

(c) Withdrawal and Modification. Beanbag may modify, suspend, or discontinue any Preview Feature at any time, with or without notice to Customer, and without liability. Beanbag is under no obligation to release any Preview Feature as a generally available feature of the Software or Software Maintenance Services and provision of Preview Feature shall not be interpreted as Beanbag committing to provide such Preview Feature for eventual production use.

(d) Liability for Preview Features. Beanbag's total cumulative liability arising out of or related to Preview Features, from all causes of action of any kind, shall be subject to the limitations of liability set forth in Article 9 and shall in no event exceed the amounts (if any) actually paid by Customer to Beanbag for the Preview Feature giving rise to the claim. Where a Preview Feature is provided to Customer at no charge, Beanbag's total cumulative liability arising out of or related to that Preview Feature shall not exceed one hundred US dollars (USD $100), to the fullest extent permitted by applicable law. The disclaimers and limitations in this Section 11.21 are in addition to, and do not limit, the disclaimers and limitations elsewhere in this Agreement. Notwithstanding the foregoing, if a modification posted under this Section 11.13.2 would have a material adverse effect on Customer at renewal (including but not limited to material changes to fees, term length, license scope, dispute resolution, or limitations of liability), Beanbag shall provide Customer with reasonable notice of the modification at least thirty (30) days before the renewal date.

(e) No Production Use. Customer acknowledges that Preview Features are intended for evaluation purposes only and may not be suitable for production use. Customer assumes all risk associated with Customer's use of Preview Features in any production environment and releases Beanbag of any and all liability related to such production use of Preview Features.

11.22 Anti-Corruption and Sanctions Compliance

(a) Anti-Corruption. Each party shall comply with all applicable anti-corruption and anti-bribery laws and regulations, including without limitation the United States Foreign Corrupt Practices Act of 1977, as amended (15 USC §§ 78dd-1 et seq.), the United Kingdom Bribery Act 2010, and any analogous laws in any jurisdiction in which the parties do business (collectively, "Anti-Corruption Laws"). Without limiting the foregoing, each party represents and warrants that, in connection with this Agreement, neither it nor any of its officers, directors, employees, agents, or affiliates has offered, paid, promised to pay, or authorized the payment of any money, gift, or anything of value, directly or indirectly, to any government official, political party, candidate for public office, or any other person, for the purpose of (i) influencing any act or decision of such person in their official capacity; (ii) inducing such person to do or omit to do any act in violation of their lawful duty; (iii) securing any improper advantage; or (iv) inducing such person to use their influence to affect or influence any act or decision of any government, political party, government instrumentality, or international public organization.

(b) Sanctions Compliance. Each party shall comply with all applicable economic sanctions laws and regulations, including without limitation those administered by the United States Department of the Treasury's Office of Foreign Assets Control (OFAC), the United States Department of State, the United Nations Security Council, the European Union, the United Kingdom (including HM Treasury's Office of Financial Sanctions Implementation), and any other relevant sanctions authority (collectively, "Sanctions"). Without limiting the foregoing or Section 11.2, each party represents and warrants that, as of the effective date of this Agreement, neither it nor any of its officers, directors, or controlling persons (i) is the target of Sanctions, including by being identified on any sanctions-related restricted-party list maintained by any of the foregoing authorities, (ii) is owned or controlled by, or acting on behalf of, any person or entity that is the target of Sanctions, or (iii) is located, organized, or resident in any country or territory that is itself the target of comprehensive Sanctions.

(c) Notification. Each party shall promptly notify the other in writing if it becomes aware of any actual or suspected violation of Anti-Corruption Laws or Sanctions in connection with this Agreement.

(d) Termination for Violation. A material breach of this Section 11.22 by either party shall be deemed a material breach of this Agreement that is not capable of cure, and the non-breaching party may terminate this Agreement immediately upon written notice without further obligation. Termination under this Section 11.22(d) is in addition to any other remedies available to the non-breaching party at law or in equity.

11.23 Data Protection

(a) Data Processing Addendum. To the extent Beanbag processes any personal data on behalf of Customer in the course of providing the Software or Software Maintenance Services, including in connection with support tickets, error reports, telemetry, or other communications under Article 5, such processing shall be governed by Beanbag's Privacy Policy available at https://beanbaginc.com/privacy/. In the event of a conflict between this Agreement and the Privacy Policy with respect to processing of personal data, the Privacy Policy shall control.

(b) Customer Responsibilities. Customer represents and warrants that it has provided all notices and obtained all consents, authorizations, and lawful bases required under applicable data protection laws (including the EU and UK General Data Protection Regulation, the California Consumer Privacy Act, and analogous laws) for Beanbag to process personal data submitted by Customer in connection with this Agreement.

(c) Sub-processors. Beanbag may engage sub-processors to assist in providing the Software and Software Maintenance Services. A current list of sub-processors is maintained at https://beanbaginc.com/privacy/. Beanbag shall remain responsible for the acts and omissions of its sub-processors with respect to personal data as if they were Beanbag's own acts and omissions.

(d) Aggregated and De-identified Data. The provision on aggregated and de-identified data in Section 11.19(a) shall apply to aggregated and de-identified data only to the extent such use is permitted under applicable data protection laws. For personal data of EU, UK, or Swiss data subjects, "de-identified" shall mean "anonymized" within the meaning of Article 4(5) of the GDPR (Recital 26).

By clicking "I Accept" or otherwise using, downloading, or installing the Software, Customer acknowledges that Customer has read this Agreement, understands it, and agrees to be bound by its terms and conditions.