Updated August 5, 2025
The following Terms of Service (“Terms”) are forWebsite Users who have not entered into formal written contracts with BeyondPricing. If you have a subscription contract with Beyond Pricing, please refer to our Contracted Terms of Service: https: /www.beyondpricing.com/terms-of-service-contracted.
This “Agreement", as defined below, is the full and governing agreement between Ten Twenty Four, Inc., a Delaware corporation, d/b/a Beyond Pricing, ("Beyond,") and User, as defined below. Beyond and User are each referred to herein individually as a “Party” or collectively as the “Parties.”
This Agreement govern User’s access to and use of theServices (as defined below). Please carefully read this Agreement before using the Services. By using the Services, User agrees to be bound by this Agreement.If using the Services on behalf of an organization, User agrees to thisAgreement on behalf of that organization and attests that User has the authority to bind that organization to this Agreement.
Beyond reserves the right, in its sole discretion, to modify, amend, or replace any part of these Terms by posting the revised Terms on Beyond’s website. Any such modifications will take effect thirty (30) days(or less, if reasonably necessary) following the date of notice. User’s continued use of Services after the effective date of any such addition, modification ,amendment, or replacement shall signify acceptance of, and agreement to, abide by the terms and conditions contained in any such additional, modified, amended, or replacement Terms.
"Additional Content" means any content or other materials which Users and their Sub-Users upload, post to, or make available through the Signal Service, through Third Party Applications, or otherwise, such asProperty Listings. Additional Content does not include User Data. For example, if User provides content about a property on a Signal website hosted by Beyond, such content constitutes Additional Content, which Beyond will display onUser's behalf, but for which User will remain fully responsible for its content, use, and effect.
“Additional Fees” means any bank, third party, or ancillary fees that are charged to Beyond for the completion of any Service.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with thesubject entity.
“AggregateData” means anonymized and aggregated User Data and/or Additional Content.
“Agreement”means these Terms, the Documentation, and any Supplemental Terms.
“Beta Services” means pre-production versions of theServices, or features that are identified as beta, pilot, limited release, pre-market, preview, non-production, evaluation, test, or the like.
“Booking Revenue” means, all money collected from each booking of a Property for all Properties priced using, or enabled or booked through, the applicable Service, including but not limited to the nightly rate, cleaning fees, insurance, resort fees, pet fees, channel markups, or any other fees collected. Booking Revenue does not include taxes collected or paid.
“Booking Revenue Fee” means the applicable percentage of Booking Revenue paid by User for a Service that involves Booking Revenue.
"Documentation" means the applicableService's onboarding, implementation and security documents, usage guidelines, and/or policies, each as updated from time to time.
“Effective Date” means the date of commencement of using Services.
“Force Majeure” means any event beyond the reasonable control of Beyond, including but not limited to acts of God, acts of government(including but not limited to emergency orders), public health emergencies, floods, fires, earthquakes, civil unrest, war, riots, acts of terror, strikes or other labor problems (other than those involving Beyond employees), integrated ThirdParty Applications, Internet service provider failures or delays, or cyberattacks / denial of service attacks.
“In-App Purchase” means any change to the Fees orServices, including one-time or limited-time recurring fees, which User agrees and consents to within a website portal or other application owned or operated by Beyond.
“Intellectual Property” means patent rights, trademarks, logos, names, copyrights, designs, and similar, whether registered or not, as well as databases, software, algorithm, codes, workflow, templates, trade secrets, know-how, processes, features, functionality, updates, customizations, and/or modifications thereto.
“Property” means a physical space (including, without limitation, a house, apartment, cooperative, condo, or room) made available to third parties for rental by User, either on User’s own behalf or on behalf of one of a client or customer of User.
“Property Listing” means a listing or post offering aProperty for rental.
“Services” means the websites and services made available by Beyond, including the online portal and any free trials, and signed up for by User or any Sub-User, as may be modified from time to time by an In-App Purchase.
“Sub-Users” means any person or entity using theServices on behalf of User or authorized to use the Services by User, and may include, for example, employees, consultants, contractors and agents of a User, and third parties with which a User transacts business or has contracted with.
“Supplemental Terms” means any terms and conditions that may apply to certain options or offers available through Beyond. Any suchSupplemental Terms will be disclosed to User in connection with the applicable option or offer.
“Third Party Applications” means any User or third party web-based, mobile, or other software application, service, system, or platform that is made available or integrated into a Service by a User or on behalf of a User, including, without limitation, banking systems, review management systems, property management software, channels, Online TravelAgencies (“OTAs”), and channel managers.
“Total Fees” means the total amount due to Beyond under this Agreement or as described on Beyond’s website, including but not limited to the Booking Revenue Fee for Services that involve Booking Revenue, ongoing fees, one-time fees, limited-time fees, yearly fees, Additional Fees, and any other ancillary collected fees.
"User" means, in the case of an individual accepting these Terms (and, by extension, this Agreement) on their own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company, group of individuals, or other legal entity, such group or entity.
"User Data" means all data and information submitted or uploaded by or for User to a Beyond platform or to use a BeyondService, including information necessary for the successful onboarding of newUsers or via integrations with other systems, excluding Additional Content andThird Party Applications.
2.1. Use. Subject to User’s compliance with the terms and conditions of this Agreement and payment of all Fees, Beyond will make the Services available to User and User’s Sub-Users, and grants User a limited, worldwide, non-exclusive, nontransferable, non-assignable (except as permitted in this Agreement) right to access and use the Services and to implement integrations with Third Party Applications, solely for User’s internal business purposes. Any and all Services may be stopped or limited at any time if User is not in compliance with this Agreement and/or has not made timely payment of applicable Fees.
2.2. Availability. Beyond will use commercially reasonable efforts to: (a) make the Services available to User pursuant to thisAgreement; (b) provide applicable standard support for the Services by email or chat; (c) make the Services available for regular use for at least 98% of the month except for (i) planned downtime (of which Beyond will endeavor to give advance notice); (ii) emergency downtime or maintenance; and (iii) any unavailability caused by Force Majeure; and (d) provide the Services in accordance with laws and government regulations applicable to Beyond’s provision of itsServices to its customers generally.
2.2.Free Trial, Beta Services. If User registers for access of a Service provided as a Free Trial or as a Beta Service, User may only access the FreeTrial and Beta Services subject to the terms of this Agreement; provided, however (i) Beyond shall have the right to terminate a Free Trial or BetaService at any time and for any reason; (ii) Beyond is providing Free Trial andBeta Services solely “as is” and makes no warranties (express or implied) of any kind with respect to such services; and (iii) Beyond shall have no obligation to indemnify User for any use of Free Trial or Beta Services. BetaServices are for evaluation purposes only and not for production use and may be subject to additional terms. Beyond is under no obligation to maintain, continue, support, update, or provide error corrections for Free Trials or BetaServices. Beyond reserves the right to never make Beta Services generally available.BEYOND WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF, OR IN CONNECTION WITH, THE USE OF A BETA SERVICE. BETA SERVICES ARE PROVIDED “AS IS”AND AS AVAILABLE, AND ARE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WITHOUT LIMITING THE FOREGOING, BEYOND EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT ORNON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
3.1. Responsibilities. User will: (a) comply with and be responsible for Sub-Users’ compliance with these Terms, (b) will not use theServices, and ensure that Sub-Users do not use the Services, to engage in illegal or prohibited activity (including but not limited to money-laundering or financing of terrorist activities); (c) be responsible for the accuracy, quality and legality of User Data and Additional Content, the means by whichUser acquired User Data and Additional Content, User’s use of User Data andAdditional Content with the Services, and the interoperation of any Third PartyApplications with which User uses Services; (d) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Beyond promptly of any such unauthorized access or use; (e) use Services only in accordance with this Agreement and applicable laws and government regulations; and (f) comply with terms of service of any Third Party Applications with whichUser uses Services. Any use of the Services in breach of the foregoing by User or Sub-Users that in Beyond’s judgment threatens the security, integrity or availability of Beyond’s Services, may result in Beyond’s immediate suspension of the Services.
User further acknowledges that if User wishes to protect User’s transmission of data to Beyond Pricing, it is User’s responsibility to use a secure encrypted connection to communicate with theServices.
3.2. Usage Restrictions. To register for a Beyond account, the individual signing on behalf of User (and all Sub-Users) must be at least 18 years of age, or the age of legal majority in User’s jurisdiction if different than18. User may not register or maintain a Beyond account if User or an affiliate has been previously banned from Beyond. User will not, and will not permit anyone else to: (a) make any Service available to any third party other thanSub-Users, through any means, including, without limitation, any hosting, application services provider, service bureau, or other type of service; (b)sell, resell, license, sublicense, distribute, make available, rent or lease any Services or Content; (c) use the Services or Third Party Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (d) use any automated tool (e.g., robots, spiders) to access or use theServices, or circumvent or disable any security or management features of theServices; (e) use the Services or Third Party Application to store or transmit malicious code; (f) interfere with or disrupt the integrity or performance of any Services or third party data contained therein; (g) attempt to gain unauthorized access to any Services or related systems or networks; (h) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of Beyond'sIntellectual Property except as permitted under this Agreement; (i) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof; (j) disassemble, reverse engineer, or decompile the Services or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Services, or (4) determine whether the Services are within the scope of any patent; (k) use the Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Services; or(l) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the Services. Beyond's competitors are prohibited from accessing or using the Services, except with Beyond's prior written consent.
3.3. Future Features and Functionality. User agrees that any payment made pursuant to this Agreement is not contingent on the delivery of any future feature or functionality or dependent on any oral or written public or private comments made by Beyond regarding future features or functionality. Beyond may release improvements and other features and functionality in its sole discretion. Some features and functionality may be available only with certain versions of the Services.
3.4. Termination of Services. User can terminate their use of the Services at any time by disabling or removing all of their listings from the Services. Beyond reserves the right to suspend or end theServices at any time, with or without cause, and with or without notice. Users are responsible for all fees accrued while using the Services. Beyond will send a Final Bill either upon termination or on User’s next standard billing cycle. The ”Final Bill” will include all incurred and/or accrued Fees. For “pay on stay” plan Users, the Final Bill will also include Fees for all stays that were booked prior to termination, including for stays that will not occur until after termination, and no refund will be provided if the stay is cancelled.
4.1. Services. Subject to the limited rights expressly granted in this Agreement, Beyond and its Affiliates reserve allrights, title, and interest in and to the Services (including all algorithms, features, functionality, updates, customizations, and/or modifications thereto), trademarks, trade names, logos, and service marks, and the AggregateData , including, in each case, all related Intellectual Property rights. No rights are granted to User or Sub-Users hereunder other than as expressly setforth in this Agreement.
4.2. User Data. As between User and Beyond, User owns all rights, title, and interest in and to User Data. User grants Beyond, its Affiliates, and its and their applicable contractors a limited, non-transferable (except as expressly stated herein), non-assignable (except as expressly stated herein),worldwide, non-exclusive license to host, copy, use, transmit, and display UserData, as appropriate for Beyond to provide and ensure proper operation of theServices in accordance with this Agreement, and by implementing integrations between any Third Party Applications. User agrees that Beyond shall also have the right to: (a) access and use User Data (i) to provide, maintain, optimize, update, and improve the Services; (ii) conduct research; and (iii) provide statistical insights and analysis related to User and its clients’ or customers' use of the Services; and (b) create “Aggregate Data. Beyond will own all Aggregate Data, which Beyond may use for any reason, including but not limited to prepare reports, studies, analyses, and other work product, and create, improve and develop products; and sell, license, or otherwise use such data. In the event that User uses or is introduced to the Services through a third party referral, partner, or PMS provider, User acknowledges that its revenue data will be shared with such third party.
4.3. Additional Content. As between User and Beyond,User owns all rights, title, and interest in and to Additional Content. To the extent User embeds or posts Additional Content on or to a website hosted or otherwise provided by Beyond in connection with the Services, User hereby grants Beyond and its Affiliates a limited, personal, non-transferable, non-assignable (except as permitted by this Agreement), worldwide, non-exclusive, royalty-free, license to host, copy, transmit and display suchAdditional Content, as appropriate for Beyond to provide the applicableServices.
4.4. Third Party Applications. The Services contain features designed to interoperate with Third Party Applications. To use such features, User or Sub-Users may be required to obtain access to such ThirdParty Applications from User’s providers, and grant Beyond access to User’s account(s) on such Third Party Applications. If User uses a Third PartyApplication with the Services, User grants Beyond permission to allow the ThirdParty Application and its provider to access User Data and Additional Content as required for the interoperation of that Third Party Application with theServices. Any acquisition by User of Third Party Applications, and any exchange of User Data or Additional Content between User and any Third Party Application provider, product or service, is solely between User and the applicable ThirdParty Application provider. Beyond does not warrant, support, or have any liability for Third Party Applications. Beyond is not responsible for any disclosure, modification or deletion of User Data or content resulting from access by any Third Party Application or its provider.
4.5. Feedback. User or Sub-Users may provide Beyond with feedback, suggestions, recommendations, corrections, and ideas, if User orSub-Users choose to do so, about the Services (“Feedback”). User agrees that Beyond may, in its sole discretion, use the Feedback in any way, including in marketing and in future enhancements and modifications to the Services. User and Sub-Users here by grant Beyond and its Affiliates a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, and assignable license to use and incorporate into the Services any Feedback provided by User or Sub-Users relating to the Services and agrees that any updates, developments, corrections, plans, new products or services, or any other creation by Beyond based on suchFeedback.
5.1. Fees. User will pay Beyond the Total Fees as they become due.
5.2. Booking Revenue Fee. For Services that utilize a Booking Revenue Fee the Booking Revenue Fee is listed and described on Beyond’s website. A description of the current Booking Revenue Fee is located here:
https: /www.beyondpricing.com/plans. Beyond reserves the right to change theBooking Revenue Fee upon providing thirty (30) days notice.
5.3. Fees; Payment Terms; Invoice Disputes.
(a) TheTotal Fees for each month will be invoiced monthly and are due upon receipt of invoice. User is responsible for providing complete and accurate billing information to Beyond. User hereby authorizes Beyond and its successor or assigns to charge the credit card (“Card”) or initiate ACH debits from a depository account at a U.S. financial institution (“ACH Account”) that User has designated for all fees and other amounts owed to Beyond or its affiliates.Users may also pay using PayPal. User’s designated Card, ACH Account, or PayPal account, are collectively referred to as the “Payment Method.” User represents and warrants that User is the cardholder/account holder named on the designatedPayment Method or have the authority to authorize any charges or debits to the designated Payment Method. User will provide accurate and complete information to verify User’s Payment Method as requested by Beyond including but not limited to User’s billing address. User must always maintain the Account with sufficient cleared funds or the Card with a sufficient balance to meet User’s obligations under this Agreement while using the Service and for as long as User has any outstanding financial obligations to Beyond after User ceases using theService. As a condition to receive the Service, User must authorize Beyond to store User’s Payment Method for future transactions in accordance with thisAgreement. Payment obligations are non-cancelable and fees paid are non-refundable unless otherwise provided herein. User may change User’s PaymentMethod from time to time, provided however, that such change will not become effective until the date on which Beyond makes the change on its system. In no event is Beyond liable for any amounts or fees charged with respect to its charge or debit of the Payment Method. User is responsible for any non-sufficient funds (NSF) fees for amounts charged to the Account. Beyond may rely on the payment information inputted by User or a Sub-User and as may be updated from time to time by User or a Sub-User. User authorizes Beyond to share any information User provides to Beyond with Beyond’s banking and payment processing partners. User’s authorization to charge or debit the Payment Method will remain in full force and effect for as long as User uses the Service and for as long as there are any outstanding financial obligations owed to Beyond after User ceases using the Service.
(b) Beyond reserves the right to suspend User’s account, in addition to all of its other available rights and remedies, in the event that User’s account becomes overdue. Suspension shall not relieve User’s obligation to pay amounts due. All unpaid Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including but not limited to attorneys’ fees and expenses, collection agency fees, and any applicable interest, and may result in immediate termination of Services.
(c) If User believes that Beyond has billed User incorrectly, or User believes that invoices
have included fees that should be excluded, User must contact Beyond at payments@beyondpricing.com no later than 15 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.4. Credits.
(a) In the event that a Property booking is canceled prior to the commencement of the stay, Beyond, in its sole discretion, may charge a processing fee (“ProcessingFee”) for that canceled stay. The amount and applicability of the Processing Fee may vary based on several factors, including but not limited to the timing of the cancellation and administrative expenses. The Processing Fee will not be higher than the Fees that would apply if the stay had not been canceled (“Standard Fee”). If the ProcessingFee is less than the Standard Fee, Beyond will apply to User’s account a credit in the amount of the difference (“Fee Credits”). If there is no Processing Fee, the Beyond will apply Fee Credits equal to the Standard Fee for that canceled stay. Fee Credits are non-refundable but will automatically apply to future Fees unless otherwise stated when issued.Any unused Fee Credits will expire one hundred eighty (180) days after issuance. Fee Credits are only applied to Services that have Booking RevenueFees.
(b) Any non-recurring credits provided to User for any reason on an ad hoc basis, including but not limited to “promo credits” (“Non-RecurringCredits”) will automatically apply to future Fees unless otherwise stated when issued. Any unused Non-Recurring Credits will expire one hundred eighty (180)days after issuance.
(c) Any other types of credits (“Other Credits”) set forth in any portion of theAgreement will be made as set forth therein, provided the Agreement remains in effect and has not been terminated. Any unused Other Credits will expire within one (1) month unless otherwise agreed in writing by Beyond.
5.5. Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to, VAT, sales, use, occupancy, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (“Taxes”). User is responsible for determining and fulfilling User’s tax obligations under applicable laws to report, collect, or remit taxes. In jurisdictions where Beyond facilitates the collection and/or remittance of Taxes on behalf of a User, User or Sub-User instructs and authorizes Beyond to collect taxes on User’s behalf, and/or to remit such Taxes to the relevant Tax authority. Any Taxes that are collected and/or remitted byBeyond are identified to User on User’s invoice records, as applicable. IfBeyond has the legal obligation to remit Taxes for which User is responsible,Beyond will invoice User and User will pay that amount unless User providesBeyond with a valid tax exemption certificate authorized by the appropriate tax authority. User agrees that User’s sole remedy for Taxes collected by Beyond isa refund from the applicable tax authority. Additionally, in certain jurisdictions, regulations may require that Beyond collect and/or report tax information about Users. For clarity, Beyond is solely responsible for taxes assessable against it based on its income, property, and employees.
5.6. Fee Changes. Beyond reserves the right to change the fees or applicable charges and to institute new charges and fees upon providing thirty (30) days notice (or less, if reasonably necessary).
5.7. Additional Fees. User is responsible for Additional Fees.
6.1. Definition of Confidential Information. "ConfidentialInformation" means any information disclosed electronically, orally, or in writing by a party (the "Disclosing Party") to the other party (the"Receiving Party") that is not generally known to the public and at the time of disclosure is either identified as, or should reasonably be understood by the Receiving Party to be, confidential. Confidential Information includes, but is not limited to, the Services, User Data (excluding AggregateData), business plans, product plans and roadmaps, business models, work processes, software, algorithm, practices, methods, operations, research, templates, services and products in development, strategies, forecasts, projects and analyses, financial information and fee structures, pricing, business processes, methods and models, and technical documentation. ConfidentialInformation does not include information that: (a) is or becomes publicly available without breach of this Agreement by the Receiving Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party;(c) is or was independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party; or (d) is or was lawfully received by the Receiving Party from a third party under no obligation of confidentiality.
6.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no eventless than reasonable care) to protect the Confidential Information of theDisclosing Party;
(b) not use any Confidential Information of theDisclosing Party for any purpose not authorized by this Agreement; and (c)except as otherwise authorized by the Disclosing Party in writing, limit access to, and disclosure of, the Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Notwithstanding the foregoing, Beyond may provide access to User’s Confidential Information toSub-Users, employees, contractors, and agents whom User permits to use and manage User’s access and use of the Services.
6.3. Compelled Disclosure. The Receiving Party may access and disclose ConfidentialInformation of the Disclosing Party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the Receiving Party will, if lawfully permitted to do so, notify the DisclosingParty within a reasonable time prior to such access or disclosure so as to allow the Disclosing Party an opportunity to seek appropriate protective measures. If the Receiving Party is compelled by law to access or disclose theDisclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse theReceiving Party for the reasonable costs of compiling and providing secure access to such Confidential Information.
6.4. Equitable Relief. The Receiving Party acknowledges that the remedy at law for breach of this "Confidentiality" section may be inadequate and that, in addition to any other remedy the Disclosing Party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this "Confidentiality" Section by the Receiving Party and to enforce the terms and provisions of this section in addition to any other remedy to which the Disclosing Party is entitled at law or in equity.
Beyond’s Data Protection Addendum (“DPA”) is incorporated by reference into these Terms and is part of the Agreement. A copy of the currentBeyond DPA is located at: https://www.beyondpricing.com/dpa.
Beyond’s Privacy Policy is incorporated by reference into these Terms and is part of the Agreement. A copy of the current Beyond Privacy Policy is located at: https://www.beyondpricing.com/privacy.
9.1. Mutual Representations. Each Party represents and warrants that: (a) it is duly organized under applicable law and has sufficient authority to enter into this Agreement; (b) the person entering into thisAgreement is authorized to enter into this Agreement on behalf of such Party; and (c) the execution and performance of this Agreement does not conflict with any contractual obligations such Party has to any third party.
9.2. Representations and Warranties by User. User represents and warrants that: (a) User has all necessary rights to provideAdditional Content and User Data to Beyond under this Agreement; (b) theAdditional Content and User Data will be accurate and complete, and will not contain any material which is unlawful, defamatory, fraudulent, or obscene, or which infringes or violates any third party rights (including any IntellectualProperty rights); and (c) User and Sub-Users will use the Services in compliance with all applicable law.
9.3. Disclaimer. Beyond is not responsible for the success of User’s listing(s) and cannot guarantee any results. However, it is in Beyond’s best interest for User to succeed. The prices posted to User’s listing by Beyond reflectBeyond’s best assessment of current market conditions, but User is always welcome to override any price or other recommendations made as part of theServices. Users are always able to change any Beyond pricing recommendations and can always terminate their use of the Services at any time.
EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THE SERVICES, AND THE DOCUMENTATION ARE PROVIDED “AS IS,” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, BEYOND EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,QUIET ENJOYMENT OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. BEYOND DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICES, AND THE DOCUMENTATION, NOR DOES BEYOND WARRANT THAT THE SERVICES WILL BE FREE FROM ERRORS, OR THAT THE OPERATIONS OF THE SERVICES WILL BE UNINTERRUPTED.USER RELIES ON THE SERVICES AND THE DOCUMENTATION AT USER’S OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, THE LIMITATIONS SET FORTH ABOVE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
BEYOND IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING WITHOUT LIMITATION,PERFORMANCE OF THIRD PARTY APPLICATIONS, PROBLEMS INHERENT IN THE USE OFTHE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS.
10.1. Indemnification by Beyond.
(a) Beyond will defend User and User’s Affiliates and User’s officers, agents, employees, representatives and assigns (the “User IndemnifiedParties”) against any claim, demand, suit, action or proceeding made or brought against User by a third party alleging that the Services infringe any copyright rights or misappropriate the trade secret rights of any third party (a “ClaimAgainst User”), and will indemnify User Indemnified Parties from any damages, attorney fees and costs finally awarded against User Indemnified Parties as a result of, or for amounts paid by User under a settlement approved by Beyond in writing of, a Claim Against User.
(b) The defense and indemnification obligations inSection 10.1(a) do not apply to the extent a Claim Against User arises, in whole or in part, from User’s breach of the Agreement or usage of the Services in violation of the Agreement. Upon the occurrence of a claim, suit or action for which indemnity is or may be due pursuant to Section 10.1(a) or in the event that Beyond believes that such a claim, suit or action is likely, Beyond may, at its option: (i) appropriately modify the Services so that they become non-infringing, or substitute functionally equivalent services; (ii) obtain a license to the applicable third party Intellectual Property rights; or (iii)terminate the Services. User agrees that Beyond’s performance of its obligations under this section constitute User’s exclusive remedy, and Beyond’s sole obligation, with respect to a third party infringement claim. Beyond’s obligations set forth within Section 10.1(a) do not apply if: (iv) a Claim Against User arises out of, and would not have otherwise occurred absent of, User’sAdditional Content, User Data, or User’s use of the Services in violation of this Agreement or the Documentation; (v) a Claim Against User arises from, and would not have otherwise occurred absent the, use or combination of theServices or any part thereof with hardware, software, data or processes not provided, or explicitly approved in writing, by Beyond, if the Services or use thereof would not infringe without such combination; (vi) the allegation does not state with specificity that the Services are the basis of the Claim AgainstUser; or (vii) a Claim Against User arises from Services for which there is no charge.
10.2. Indemnification by User. User will defend Beyond and its Affiliates and their officers, agents, employees, representatives and assigns (the “Beyond Indemnified Parties”)against any claim, demand, suit, action or proceeding made or brought againstBeyond by a third party (a) arising from User’s or any Sub-User’s use of theServices in an unlawful manner or in violation of the Agreement or theDocumentation; (b) resulting from a payment being returned for non-sufficient funds; or (b) alleging that any of User’s Additional Content and or the UserData infringes or misappropriates such third party’s Intellectual Property rights (each a “Claim Against Beyond”). User will indemnify Beyond IndemnifiedParties from any costs, damages, and expenses finally awarded against Beyond IndemnifiedParties as a result of, or for any amounts paid by Beyond Indemnified Parties under a settlement approved by User in writing of, a Claim Against Beyond.
10.3. IndemnificationProcedure. The “User Indemnified Parties” and the “Beyond Indemnified Parties”are referred to as the “Indemnified Party,” and the Party obligated to provide the indemnity, as described above, is referred to as the “Indemnifying Party”for purposes of this Section. The obligations of either Party to provide indemnification under this Agreement will be contingent upon: (a) the Indemnified Party promptly giving the Indemnifying Party written notice of any claim for which indemnification is sought (provided that the Indemnified Party’s failure to notify the Indemnifying Party will not diminish the Indemnifying Party’s obligations under this Section, except to the extent that the IndemnifyingParty is materially prejudiced as a result of such failure); (b) theIndemnifying Party having sole control of the defense and settlement of any and all claims for which indemnification is sought (provided that no settlement maybe entered into without either (i) the consent of the Indemnified Party if such settlement would require any action on the part of the Indemnified Party other than to cease using any allegedly infringing or illegal content or services or(ii) unconditionally releasing the Indemnified Party of all liability); and (3)the Indemnified Party giving the Indemnifying Party all reasonably requested assistance at the Indemnifying Party’s expense. Subject to the foregoing, an IndemnifiedParty will at all times have the option to participate in any matter or litigation through counsel of its own selection solely at its own expense.
10.4. Exclusive Remedy. This “Indemnification” section states the Indemnifying Party’s soleliability to, and the Indemnified Party’s exclusive remedy against, the otherParty for any third party claim described in this section.
11.1. Limitation of Liability. OTHER THAN AS REQUIRED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BEYOND OR ITS AFFILIATES,ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TOTHE LIABILITY IN THE 12 MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER AND ITS AFFILIATES’ PAYMENT OBLIGATIONS HEREUNDER.
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUES, OR LOSS OFUSE RESULTING FROM BUSINESS DISRUPTION, OR FOR ANY HOWEVER CAUSED,WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT APARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.=
12.1. Export Compliance. The Service may be subject to export laws and regulations of theUnited States and other jurisdictions. User and Beyond each represent that neither Party nor any of their Sub-Users are named on any U.S. government denied-party list. User will not permit any Sub-User to access or use anyService in a U.S. embargoed country or region or in violation of any U.S.export law or regulation.
12.2. Use Outside the United States of America. The Service is controlled and operated byBeyond from its offices in the United States of America. Except as explicitly set forth herein, Beyond makes no representations that the Services are appropriate for use in other jurisdictions. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local laws. Beyond may offer services in other jurisdictions that are subject to different terms and conditions. In such instances, the terms and conditions governing those non-U.S. services shall take precedence over any conflicting provisions in this Agreement.
12.3. Governing Law. This Agreement and any disputes arising under it will be governed by the laws of the State of Illinois without regard to its conflict of laws provisions, and each Party consents to the personal jurisdiction and venue of Illinois. The application of the United Nations Convention on Contracts for the InternationalSale of Goods is expressly excluded.
12.4. Arbitration. Any dispute, controversy, or claim arising out of or relating to this Agreement will be settled solely by confidential binding arbitration in Cook County, IL, which will constitute the sole and exclusive remedy. The arbitrator will be appointed in accordance with the American Arbitration Association’s Commercial Arbitration Rules. The Parties will split the costs of arbitration, except that the arbitrator may (and will, where there is one prevailing Party) award costs and attorneys’ fees in its decision. The Parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. User may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to Beyond. The notice must be sent within thirty (30)days of User’s first use of the Services.
If User opt out of arbitration, Beyond also will not be bound to arbitrate.
Notwithstanding the foregoing, either Party shall been titled to seek injunctive relief as set forth in the “Equitable Relief”section above and to stop unauthorized use of the Service or infringement ofIntellectual Property rights. Disputes, claims, or controversies concerning either Party’s Intellectual Property rights or claims of piracy or unauthorized use of the Service shall not be subject to arbitration.
12.5. Notices. Notices under this Agreement will be given in writing via email. All notices toUser must be sent to the email address provided by User, and all notices toBeyond must be sent to legal@beyondpricing.com. Billing-related notices to User will be addressed to the relevant billing contact designated by User. All other notices to User will be addressed to the relevant account contact designated byUser or posted on Beyond’s website.
12.6. Publicity. Beyond may include User’s name and logo in Beyond’s online customer list and in print and electronic marketing materials.
12.7. Relationship of the Parties. The Parties are and remain independent contractors with respect to all Services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third party beneficiaries to this Agreement. As a matter of clarity, User’s clients or customers are not third party beneficiaries to User’s rights under this Agreement.
12.8. Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and remain enforceable between the Parties. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and a Party’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.
12.9. Assignment.Neither this Agreement nor any of the rights and licenses granted under thisAgreement may be transferred or assigned by either Party without the other Party’s express written consent (not to be unreasonably withheld or delayed); provided, however, that Beyond may assign this Agreement upon written notice without the other Party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement is binding on and inures to the benefit of the Parties, their respective successors, and permitted assigns.
2.10. Entire Agreement. This Agreement, including all attachments, exhibits, and addendums, hereunder, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect
to its subject matter. The Parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement.
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