Beetexting Terms of Service

Last Updated on June 17th, 2024

THESE BEETEXTING TERMS OF SERVICE SHOULD BE READ CAREFULLY, AS THEY, AMONG OTHER THINGS, LIMIT BEETEXTING’S LIABILITY AND OTHERWISE DEFINE BEETEXTING’S AND THE CUSTOMER’S LEGAL RIGHTS AND OBLIGATIONS IN RESPECT OF THEIR RELATIONSHIP AND DEALINGS AND THE BEETEXTING SERVICES

ALL RIGHTS NOT EXPRESSLY GRANTED TO CUSTOMER UNDER THESE BEETEXTING TERMS OF SERVICE ARE RESERVED BY BEETEXTING

1. AGREEMENT TO TERMS OF SERVICE

By accepting or agreeing to these Beetexting Terms of Service (these “TOS”) (including without limitation by executing or signing a document incorporating these TOS or completing any “click-through”, “click-to-accept”, or similar process with respect to these TOS) or by continuing to access or use the services, products, or offerings of or offered by Technocentra Group Inc., DBA Beetexting (“Beetexting”) via www.beetexting.com ( “Services”) after being made aware of these TOS:

(a) the individual accepting or agreeing to these TOS or engaging in such access or use represents and warrants that he or she has the authority to bind the party to which Beetexting provides the Ordered Services (such party, “Customer”) to these TOS and the Agreement and to enter into the Agreement on Customer’s behalf and

(b) Customer agrees to be – and shall be – legally bound to these TOS, and agrees that these TOS shall comprise a legally-binding and legally-enforceable contract between Customer and Beetexting (the “Agreement”).

Each of Beetexting and Customer shall herein be referred to as a “Party” and together shall herein be referred to as the “Parties”.

2. ORDERS OF SERVICES

Customer shall be deemed to have placed an order with Beetexting for Services under the Agreement (each such order and/or Beetexting-generated order document (including without limitation an electronic form) memorializing such an order, an “Order”; such Services so ordered, “Ordered Services”) whenever any of the following is done by Customer; its actual or apparent employee, representative, contractor, Partner, agent, End User, or user; or any party actually or apparently acting on behalf of or representing any of the foregoing:

(a) Sending text messages to contacts, adding users, adding phone numbers, adding or consuming other units of service (each a “Unit”) to or within a Services account, including without limitation by selecting any of quantity of or consuming Units as part of signing up or subscribing to Services and/or creating a Services account;

(b) adding or consuming any quantity of Units to an existing Services account; and/or

(c) executing or otherwise accepting or agreeing to an Order or other document (including without limitation an electronic form) providing for the addition of Units to a Services account.

For avoidance of doubt, Beetexting’s generation or acceptance of, agreement to, and/or entry into an Order shall in each case be within, and subject to, Beetexting’s sole discretion, and Beetexting shall have no obligation to do any of the foregoing. Each Order shall be a part of the Agreement and shall be subject to and governed by these TOS. Beetexting hereby objects to and rejects any and all terms, conditions, or the like included or set forth in any Customer-side purchase order or similar document or other content; in no event shall any such terms, conditions, or the like be part of or incorporated into the Agreement or effective binding on Beetexting.

3. ORDER TERM

Each Order shall become effective and binding upon the Parties upon such Order’s placement (in accordance with Section 2 (Orders of Services)) and shall continue in full effect until such Order terminates or expires according to the express terms of these TOS (the applicable Order’s “Order Effective Period”). The initial term of each Order shall start upon such Order’s placement (in accordance with Section 2 (Orders of Services)) and continue for:

(a) (where such Order does not specify any amount of time as its initial term) the period extending through the end of the trial period (if one applies to such Order) and for one full month thereafter (e.g., if a fourteen- (14-) day trial applies to an Order and such Order is placed on January 1st, such Order’s initial term shall start on January 1st and continue through February 15th (of the same year) (fourteen (14) days and one (1) month after January 1st), after which such initial term shall end) or

(b) (where such Order does specify an amount of time as its initial term) the period extending through the end of the trial period (if one applies to such Order) and thereafter for such amount of time set forth in such Order (e.g., if an Order provides for a twelve- (12-) month initial term, a fourteen- (14-) day trial applies to such Order, and such Order is placed on January 1st, such Order’s initial term shall start on January 1st and continue through February 15th of the next year (fourteen (14) days and twelve (12) months after January 1st), after which such initial term shall end).

At the end of each Order’s initial term and each of its renewal terms (if any), such Order shall (unless it has already terminated in accordance with the express terms of these TOS):

(i) (if neither Party has provided notice to the other Party of its election not to renew such Order prior to the end of such ending initial or renewal term) automatically renew for a renewal term of the same duration as such initial term of such Order or

(ii) (if either Party has provided such a notice to the other Party prior to the last date of such ending initial or renewal term) expire.

For avoidance of doubt, Orders may not be terminated by Customer. Auto Order renewals may be turned off by filling out this form: https://beetexting.com/cancel-my-account/.

4. CUSTOMER SUBSCRIPTION OBLIGATIONS

CUSTOMER ACKNOWLEDGES AND AGREES THAT:

(a) IN PLACING AN ORDER, IT IS COMMITTING AND AGREEING TO PAY TO BEETEXTING, AND TO BE LIABLE TO BEETEXTING FOR, ALL SERVICE FEES, TAXES, AND RELATED AMOUNTS FOR THE ENTIRETY OF THE INITIAL TERM AND ANY AND ALL RENEWAL TERMS OF SUCH ORDER (IN ADDITION TO ANY OVERAGE OR USAGE AMOUNTS), REGARDLESS OF WHETHER AND/OR TO WHAT EXTENT CUSTOMER ACTUALLY ACCESSES OR USES THE ORDERED SERVICES OR OTHER ITEMS UNDER THE ORDER AND/OR WHETHER THE AGREEMENT OR APPLICABLE ORDER IS TERMINATED BEFORE THE END OF SUCH INITIAL TERM AND/OR ANY SUCH RENEWAL TERM AND

(b) IN KEEPING WITH SUCH COMMITMENT, SUBJECT TO THE SOLE AND EXCLUSIVE EXCEPTIONS SET-FORTH IN THE IMMEDIATELY FOLLOWING SENTENCE, IN THE EVENT OF ANY TERMINATION OF AN ORDER, CUSTOMER WILL, UPON SUCH TERMINATION, INCUR, OWE, AND BE OBLIGATED TO PAY TO BEETEXTING A BUY-OUT FEE EQUALING ALL SERVICE FEES AND TAXES FOR ALL REMAINING POST-TERMINATION PERIODS WITHIN THE THEN-CURRENT INITIAL OR RENEWAL TERM (AS APPLICABLE) OF SUCH ORDER (A “BUY-OUT FEE”).

As sole and exclusive exceptions to Customer’s obligation to pay a Buy-Out Fee in the event of termination of any Order, Customer shall not owe any Buy-Out Fee (and shall be relieved of its obligation to pay Service Fees for any period subsequent to the effective date of the Order’s termination) in the following termination scenarios:

(i) Beetexting terminates the Order for Necessity, for Infringement Claim, or for Convenience.

(ii) The Order is automatically terminated (as provided in Section 21 (Effect of Termination or Expiration of Agreement; Survival)) as a result of termination or expiration of the Agreement (1) by Customer under and in accordance with its express rights under Section 20 (Customer Rights to Terminate the Agreement) to terminate the Agreement or (2) by Beetexting for Necessity, for Infringement Claim, or for Convenience.

For avoidance of doubt, (A) in no other event shall termination of an Order (and/or termination or expiration of the Agreement) relieve Customer of its obligation to pay Buy-Out Fees with respect to such Order or and (B) in no event shall any expiration or termination of any Order negate or relieve Customer of any obligation to pay any amount incurred or arising – or tied to or assessed based on any use or accessing of Services, usage, overage, or other event prior to – such expiration or termination.

5. BEETEXTING SERVICE OBLIGATION

Beetexting shall, during the applicable Order’s Order Effective Period, make the Ordered Services available to Customer in accordance with, and subject to the terms and conditions of, the Agreement, provided that Customer acknowledges and agrees that the foregoing is not, and does not amount to, a covenant, representation, warranty, or guarantee (and Beetexting expressly disclaims any covenant, representation, warranty, or guarantee) that the Ordered Services will be error-free or available one-hundred percent (100%) of the time, and/or will not be unavailable inaccessible, disrupted, or non-operational from time to time, or that communications will always be delivered (Beetexting’s obligations under this sentence shall herein be referred to as Beetexting’s “Service Obligation”). For avoidance of doubt, Beetexting’s Service Obligation with respect to an Order or Ordered Services shall immediately terminate and cease upon termination or expiration of the applicable Order and, upon such termination or expiration, Beetexting may do any or all of the following, in each case without liability or obligation to Customer: terminate, cancel, shut down, de-active, de-provision, delete, suspend, and/or remove Customer’s access and/or purge, delete, permanently remove , and/or irrevocably release all data and access to any Units associated with the Ordered Services, and/or ability to use the applicable Ordered Services and/or engage in other acts or omissions in connection with effectuating wind-down of service and/or related accounts. Customer acknowledges, agrees, and represents that none of its purchases of Ordered Services are or will be contingent upon the delivery of any future functionality or feature.

6. CUSTOMER COMPLIANCE

The Beetexting Acceptable Use Policy, which may be found at https://beetexting.com/acceptable-use-policy (the “Beetexting Acceptable Use Policy”), is incorporated in, and shall be a part of, these TOS and the Agreement. Customer covenants, represents, and warrants that it shall comply, and ensure compliance, with the then-current version of the Beetexting Acceptable Use Policy. In addition, in performing, or otherwise engaging in activities in connection with, the Agreement, Customer covenants, represents, and warrants that Customer will, during the Agreement’s Effective Period and any subsequent period during which Ordered Services are provided under the Agreement and/or available or accessible, (a) comply with all Laws and obtain and maintain without lapse or interruption all licenses, certifications, authorizations, permits, registrations, and the like that Customer is required by Law to maintain and (b) ensure that no Customer Party directly or indirectly makes or offers any payment of money or provision of anything of value to any governmental or public entity, official, candidate, political party, or instrumentality for the purpose of obtaining any improper advantage or influencing any act or omission of the foregoing or any violation by any of the foregoing of any applicable duty (any of the foregoing, an “Improper Payment”). Customer covenants, represents, and warrants that, as of the Agreement’s Effective Date, no Improper Payment has been made in connection with the Agreement, Services or Ordered Services, the Parties’ dealings or transactions, or Customer’s or its Affiliates’ other business activities.

7. SERVICE FEES

Customer shall be liable for, and shall pay to Beetexting, the base, usage, and other fees for the Ordered Services (the “Service Fees”) as set forth – and according to the rates, terms, and conditions set forth – at https://beetexting.com/pricing/ and https://beetexting.com/messaging-costs-and-industry-fees/ provided that where an Order specifies different rates, terms, or conditions with respect to Service Fees for certain Ordered Services, such different rates, terms, and/or conditions (as applicable) shall apply with respect to such Service Fees for such Ordered Services. Service Fees shall be billed in advance, at or around the start of the applicable payment period (based on the applicable payment term) for which they are billed. Service Fees shall be calculated and paid monthly, except where Customer has agreed to a longer payment term (such as an annual payment term), in which case the applicable Service Fees shall be calculated and paid according to such longer payment term.

8. TAXES

Customer shall pay sales, use, value-added taxes, goods and services taxes, withholding taxes, or any similar transaction taxes; access fees; universal service or other recovery fees; governmental assessments; public utility fees; emergency services surcharges; or similar charges (collectively, “Taxes”) which the law requires or permits Beetexting or its Affiliate to collect from Customer or otherwise recover or that are otherwise assessed or assessable by any governmental, fiscal, or other authority. In the event that Customer believes that it is legally required to withhold any Tax amount, Customer shall assert such exemption to Beetexting by providing Beetexting with a valid tax exemption certificate authorized by the appropriate taxing authority (but Customer shall be liable for any Taxes assessed prior to such provision). Any Taxes or similar amounts set forth in any Order or similar document shall only be non-binding estimates. Taxes may vary based on jurisdiction and the Services provided. Taxes will be adjusted on the date in which those increases become effective as mandated by competent authority. If any withholding tax is levied on the payments, then Customer must increase the sums paid to Beetexting so that the amount received by Beetexting after the withholding tax is deducted is the full amount Beetexting would have received if no withholding or deduction had been made. Customer shall incur and be liable for, and shall pay to Beetexting, Taxes whenever the same may be billed by Beetexting.

9. PAYMENT OBLIGATIONS

Customer shall pay to Beetexting all amounts invoiced or billed by Beetexting to Customer under or in respect of any Order, Ordered Services, or these TOS (without deduction, set-off, counterclaim, or withholding of any kind, except as expressly permitted in Section 9 (Taxes) or 11 (Disputed Amounts)) (a) in accordance with the Automatic Payment Terms set forth (as of the date of the applicable payment) at https://beetexting.com/automatic-payment-terms/, to which Automatic Payment Terms Customer agrees and which Automatic Payment Terms are incorporated in and made a part of these TOS), (b) within fifteen (15) days of the date of invoice or other billing, and (c) in United States dollars. All payments and Customer payment obligations shall be non-refundable, non-cancellable, and non-creditable except to the extent that these TOS or the applicable Order expressly provides otherwise. Any payment not made when due will be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month and (ii) the highest rate allowed by Law. Beetexting’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as “Paid in Full”, “Accord and Satisfaction”, or similarly)) will not waive, limit, or prejudice in any way Beetexting’s rights to collect any amount due. For avoidance of doubt, Customer’s failure or delinquency in the payment of any amount owed, due, or payable under any Order or these TOS shall constitute and be treated as a material breach of such Order and these TOS.

10. DISPUTED AMOUNTS

Customer may dispute any invoiced or billed amount under any Order or the Agreement that it believes was incorrectly invoiced or billed, provided that any such dispute must be in good faith and must be made via written notice to Beetexting within seven (7) days of the date of invoice or other billing identifying the reason and basis for the dispute and the particular amount being disputed (an invoiced or billed amount timely disputed by Customer in accordance with this sentence, a “Disputed Amount”). Customer’s dispute as to any particular amount will not excuse Customer’s obligation to timely pay any other amount (including any other amount within the same invoice or bill/billing). If Customer has not paid a Disputed Amount to Beetexting as of the date that Customer disputes it to Beetexting in accordance with the requirements of this Section 11 (Disputed Amounts), Customer may withhold payment of the Disputed Amount pending Beetexting’s determination as to the validity of the dispute. If the Disputed Amount is determined by Beetexting to have been correctly billed, Customer must pay such Disputed Amount to Beetexting in accordance with the payment terms of these TOS within seven (7) days of such determination, which shall be considered the new due date for such Disputed Amount. Any amounts that are determined by Beetexting to have been billed in error resulting in an overpayment by Customer will be applied as a billing credit against future charges. CUSTOMER HEREBY FOREVER WAIVES AND FORFEITS ITS RIGHT TO DISPUTE ANY AMOUNT INVOICED OR BILLED UNDER ANY ORDER OR THE AGREEMENT NOT TIMELY DISPUTED BY CUSTOMER UNDER AND IN ACCORDANCE WITH THE REQUIREMENTS OF THIS SECTION 11 (DISPUTED AMOUNTS).

11. BEETEXTING’S PROVISION OF SERVICES

Beetexting may do any or all of the following at any time, with or without notification to Customer, and none of the following shall constitute or result in a breach by Beetexting of – or failure by Beetexting to fulfill its obligations under – the Agreement:

(a) change, modify, update, improve, add to, upgrade, downgrade, or reduce the Services, Ordered Services, Software, Beetexting Infrastructure, and/ or any feature, functionality, or other element of any of the foregoing;

(b) provide the Services and/or Ordered Services and otherwise perform and fulfill its obligations under the Agreement via Beetexting’s Affiliates, Partners, agents, and/or subcontractors; and/or

(c) procure for Customer a license or other right to continue to use the applicable Ordered Services and/or substitute replacement services, products, or offerings for the Ordered Servies.

12. CHANGES/UPDATES TO TOS; AMENDMENT OF AGREEMENT

The Agreement may be amended solely via the Parties’ entry into a writing signed by both Parties, except that Beetexting may change, amend, update, and/or replace these TOS (including without limitation the Beetexting Acceptable Use Policy and Automatic Payment Terms) at any time, with or without notification to Customer, by modifying these TOS at the webpage on which they reside (or, in the case of the Beetexting Acceptable Use Policy and/or Automatic Payment Terms, by modifying the Beetexting Acceptable Use Policy and/or the Automatic Payment Terms at the webpage at which they reside), in which case the new, modified version of the TOS or Beetexting Acceptable Use Policy or Automatic Payment Terms (as applicable) shall be effective and apply as of such modification of such webpage.

13. NO TRANSFER OF INTELLECTUAL PROPERTY

Except to the extent expressly provided in Section 14 (Feedback) or otherwise expressly provided in the Agreement, neither Party will acquire any title, license, or right, express or implied, in or to any of the intellectual or other property or Intellectual Property Rights of or belonging to the other Party or its Affiliates or licensors. As between Beetexting and Customer, (a) Customer remains the owner of the data it generates and transmits via Ordered Services and (b) Beetexting retains and remains the exclusive owner of all right, title and interest in and to all Services, Ordered Services, Software, and Beetexting Infrastructure (including without limitation any software or code that is a part of or related to any of the foregoing and any component, feature, functionality, or other element of any of the foregoing) and the Documentation (and nothing in the Agreement shall transfer any such right, title, or interest to any Customer Party). Beetexting and its Affiliates shall have and enjoy full and exclusive ownership, right, and title in and to any and all deliverables and/or work product (including without limitations code) developed or created by Beetexting in connection with the Agreement. For the avoidance of doubt and without limiting the rest of this Section 14 (No Transfer of Intellectual Property), any references in the Agreement to the “sale”/“sell[ing]”, “purchase”/“purchas[ing]”, “resale”/“resell[ing]”, “order”/“ordering”, and so on of Services and/or Ordered Services shall refer solely to the sale, purchase, etc. of rights to access and/or use the applicable Services and/or Ordered Services (as applicable).

14. FEEDBACK

Customer hereby assigns to Beetexting any and all right, title, ownership, and/or interest that any Customer Party might have or acquire, if any, in and/or to any feedback, suggestion, improvement, idea, plan, information, modification, or enhancement that any Customer Party might provide, develop, communicate, relay, or create in respect of (a) Services; Ordered Services; any other services, product, or offering of or by Beetexting or its Affiliates; Software; Beetexting Infrastructure; and/or any element of any of the foregoing or (b) any activities, business, or operations of Beetexting, its Affiliates, or any Customer Party (collectively, “Feedback”). Customer agrees that Beetexting may use, exploit, incorporate, and/or license any Feedback or any know-how, techniques, or methods contained therein, without any restriction or compensation.

15. MUTUAL REPRESENTATIONS

Each Party represents and warrants to the other Party that (a) it is a bona fide business (duly incorporated and in good standing within the jurisdiction of its incorporation) with power and authority to execute and perform under the Agreement, (b) it is not subject to and will not assume any obligation that conflicts with its obligations under the Agreement or prohibit or impair its performance of the foregoing, (c) no consent or permission is required to permit such Party to enter into and become bound by the Agreement, and (d) as of the Agreement’s effective date, no outstanding Claim or dispute will, or if decided against such Party would, materially and adversely affect such Party’s ability to perform such obligations.

16. SUSPENSION

In addition to and without prejudice to Beetexting’s other rights and/or remedies under the Agreement or these TOS, Beetexting may (a) suspend or implement restrictions, limitations or other measures with respect to some or all of the Ordered Services in the event of Customer’s breach of the Agreement or a Beetexting Acceptable Use Policy Violation, or where Beetexting determines that such suspension is reasonably necessary to avoid or mitigate the risk of substantial ongoing loss, cost, liability, damage, or harm to any party. Beetexting shall endeavor to notify Customer of any such suspension in advance of such suspension if reasonably practicable. In no event shall any suspension of – or restriction, limitation, or other measure, with respect to – the Ordered Services relieve Customer of any payment or other obligation under the Agreement or these TOS or negate, suspend, condition, or toll Customer’s liability for – or the due date of – any amount with respect to the Ordered Services, whether during the period of suspension, restriction, limitation, or other measure or otherwise.

17. TERM OF AGREEMENT

The Agreement shall become effective on the date that Customer first accepts, agrees to, or continues to access or use Services after being made aware of these TOS, as set forth in Section 1 (Agreement to Terms of Service) and shall continue in full force and effect until the earlier of (a) termination of the Agreement under and in accordance with the Agreement’s express terms and conditions and (b) expiration or termination of all Orders (the “Agreement’s Effective Period”). In the event of expiration or termination of all Orders, the Agreement shall expire as of such expiration or termination of all Orders.

18. BEETEXTING TERMINATION RIGHTS

Beetexting may terminate the Agreement or any Order:

(a) by providing at least ten (10) days’ notification of such termination to Customer in the event that Customer materially breaches its obligations under the Agreement;

(b) immediately upon notification of such termination to Customer in the event of (i) any breach of the Agreement by Customer that Beetexting determines will subject Beetexting, its Affiliates or Partners, any customer of Beetexting or its Affiliates or Partners, or any other party to the risk of substantial ongoing loss, cost, liability, damage, or harm or (ii) any Beetexting Acceptable Use Policy Violation;

(c) immediately upon notification of such termination to Customer in the event that Beetexting determines that such termination is reasonably required (i) by law, statute, regulation, ordinance, decree, industry standard, or similar or court or other order or ruling (collectively, “Laws”), (ii) to allow Beetexting or any of its Affiliates to comply with, or avoid violating, any Law, or (iii) to avoid or mitigate substantial ongoing loss, cost, liability, damage, or harm to any party (termination under this clause (c) shall herein be referred to as termination “for Necessity”);

(d) immediately upon notification of such termination to Customer in the event (i) that a bankruptcy, reorganization, insolvency, or similar proceeding is brought, filed, or instituted by or against Customer or its corporate parent or (ii) of Customer’s dissolution, becoming insolvent or bankrupt, creditworthiness impairment, or making of an assignment for the benefit of creditors;

(e) by providing at least ten (10) days’ notification of such termination to Customer in the event that any of the Services or Ordered Services become subject to an actual or threatened patent, intellectual property, or other infringement Claim or Beetexting determines that substantial risk of such a Claim exists (termination under this clause (e) shall herein be referred to as termination “for Infringement Claim”);

(f) for convenience by providing at least thirty (30) days’ notification of such termination to Customer (termination under this clause (f) shall herein be referred to as termination “for Convenience”).

For avoidance of doubt, Beetexting’s rights to terminate the Agreement or an Order shall be cumulative of one another.

19. CUSTOMER RIGHTS TO TERMINATE THE AGREEMENT

As Customer’s sole and exclusive rights to terminate the Agreement, Customer may terminate the Agreement:

(a) by providing at least forty-five (45) days’ notice of such termination to Beetexting in the event that Beetexting materially breaches its obligations under the Agreement and Beetexting fails to reasonably cure such breach within such notice period and

(b) with at least five (5) days’ notice to Beetexting in the event that a bankruptcy, reorganization, insolvency, or similar proceeding is brought, filed, or instituted by or against Beetexting and is not dismissed within sixty (60) days.

FOR AVOIDANCE OF DOUBT, CUSTOMER MAY NOT TERMINATE THE AGREEMENT OTHER THAN IN ACCORDANCE WITH THE ABOVE EXPRESS TERMINATION RIGHTS IN THIS SECTION 20 (CUSTOMER RIGHTS TO TERMINATE THE AGREEMENT).

20. EFFECT OF TERMINATION OR EXPIRATION OF AGREEMENT; SURVIVAL

Termination of the Agreement shall cause and result in the immediate and automatic termination of all Orders that have not already expired or terminated as of the effective date of such termination of the Agreement, provided that for avoidance of doubt and notwithstanding anything to the contrary in these TOS, in no event shall any termination or expiration of the Agreement or any Order negate, or relieve Customer of, any obligation of Customer under the Agreement to pay any Buy-Out Fee or similar amount, which obligation shall survive any such termination or expiration or otherwise negate, or relieve Customer of, any of its financial or other obligations or liabilities – or negate or deprive Beetexting of any right or privilege – (a) that these TOS or the other terms of the Agreement provide or envisage shall survive such termination or expiration or otherwise continue or are otherwise intended to survive or continue or (b) incurred, accruing, resulting from, or otherwise arising as of, upon, or prior to such termination or expiration. Upon termination or expiration of an Order or the Agreement, all rights, privileges, and licenses granted or afforded to Customer under or in connection with such Order or the Agreement (as applicable) shall immediately terminate and be revoked. Those provisions of the Agreement that are intended by their very nature to survive expiration and/or termination of the Agreement shall so survive, as shall the provisions of Sections 4 (Customer Subscription Obligations), 8 (Overage), 9 (Taxes), 10 (Payment Obligations), 14 (Feedback), 22 (Indemnification), and 23 (Exclusions and Limitation of Liability).

21. SERVICE DISCLAIMERS

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE SERVICES AND ORDERED SERVICES ARE PROVIDED ON A STRICTLY “AS-IS” AND “AS-AVAILABLE” BASIS, AND BEETEXTING DOES NOT MAKE – AND EXPRESSLY DISCLAIMS – ANY AND ALL WARRANTIES (EXPRESS, IMPLIED, OR OTHERWISE) AS THE SERVICES AND/OR ORDERED SERVICES OR OTHERWISE IN RESPECT OF THE AGREEMENT OR THESE TOS, INCLUDING WITHOUT LIMITATION ANY IMPLIED OR OTHER WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND/OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT (a) THE SERVICES AND ORDERED SERVICES ARE PROVIDED AND INTENDED FOR THE PURPOSES OF TRANSMITTING COMMUNICATIONS, AND NOT FOR THE PURPOSES OF STORAGE, RETENTION, OR BACKING UP OF DATA, (b) BEETEXTING MAKES NO GUARANTEE, REPRESENTATION, ASSURANCE, OR WARRANTY REGARDING THE PRESERVATION, RETENTION, OR CONTINUED STORAGE OR AVAILABILITY OF ANY DATA (STORED VIA THE SERVICES OR ORDERED SERVICES OR OTHERWISE) AND BEETEXTING SHALL HAVE NO LIABILITY FOR THE LOSS, DESTRUCTION, INACCURACY, ALTERATION, OR DESTRUCTION OF ANY DATA, (c) BEETEXTING MAKES NO GUARANTEE, REPRESENTATION, ASSURANCE, OR WARRANTY THAT (OR AS TO WHETHER OR NOT) THE SERVICES OR ORDERED SERVICES WILL MEET CUSTOMER’S (OR ANY OTHER PARTY’S) REQUIREMENTS OR EXPECTATIONS OR THAT BEETEXTING WILL CORRECT ANY ERROR IN THE SERVICES OR ORDERED SERVICES, AND (d) BEETEXTING MAKES NO GUARANTEE, REPRESENTATION, WARRANTY, OR ASSURANCE – AND SHALL HAVE NO RESPONSIBILITY OR LIABILITY – WITH RESPECT TO ANY NON-BEETEXTING PRODUCT OR OFFERING OR PROVIDER OF THE SAME (INCLUDING WITHOUT LIMITATION AS TO CONTINUED OPERATION OR AVAILABILITY, OR ERROR-FREE FUNCTIONALITY OF ANY SUCH PRODUCT OR OFFERING OR THE SECURITY, PRIVACY, OR USE OF DATA SHARED WITH OR PROCESSED THROUGH ANY SUCH PRODUCT OR OFFERING), EVEN IF BEETEXTING ALLOWS OR SUPPORTS AN INTEGRATION BETWEEN, OR ENDORSES, CERTIFIES, OR RECOMMENDS, SUCH A PRODUCT OR OFFERING.

22. INDEMNIFICATION

Customer shall defend, indemnify, and hold harmless Beetexting, its Affiliates and Partners, and their officers, directors, employees, personnel, contractors, and agents (collectively, the “Beetexting Parties”) from and against any and all Taxes, as well as any and all of the following that arise from, relate to, or are otherwise in connection with Customer’s breach of the Agreement and/or any Beetexting Acceptable Use Policy Violation: (a) any loss, damages, judgment, and/or liability (whether joint, several, or otherwise) and/or any cost and/or expense (including without limitation attorneys’ fees and/or defense costs) incurred by any Beetexting Party, for which any Beetexting Party becomes liable, or to which any Beetexting Party otherwise becomes subject and/or (b) any Claim, cause of action, production or discovery request, interrogatory, deposition, order, subpoena or other legal process, or proceeding commenced, brought, filed, or threatened against, or served on or sent or directed to, any Beetexting Party.

23. EXCLUSIONS AND LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE BY LAW:

(a) NEITHER BEETEXTING NOR ANY OTHER BEETEXTING PARTY SHALL BE LIABLE UNDER OR BY REASON OF THE AGREEMENT OR THESE TOS OR OTHERWISE IN RESPECT OF ANY ORDER OR THE SERVICES OR ORDERED SERVICES FOR ANY OF THE FOLLOWING: (i) PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, REPUTATIONAL, OR OTHER INDIRECT OR SPECIAL DAMAGES, (ii) COST OF COVER OR REPLACEMENT/ SUBSTITUTE GOODS OR SERVICES, (iii) LOSS OF BUSINESS, PROFITS, GOODWILL, TRANSACTIONS, CUSTOMERS, DATA, CONTENT, AND/OR OPPORTUNITIES AND/OR DAMAGE TO REPUTATION AND

(b) THE TOTAL AGGREGATE AND CUMULATIVE LIABILITY OF BEETEXTING UNDER THE AGREEMENT, THESE TOS, AND/OR ANY AND ALL ORDERS (OR OTHERWISE IN RESPECT OF ANY ORDER OR THE SERVICES OR ORDERED SERVICES) SHALL NOT EXCEED THE LESSER OF (i) THE TOTAL AMOUNT OF SERVICE FEES ACTUALLY PAID BY CUSTOMER TO BEETEXTING DURING THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO THE LIABILITY(IES) AT ISSUE AND (ii) $5,000.00 (USD).

THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 23 (EXCLUSIONS AND LIMITATION OF LIABILITY) SHALL APPLY (1) REGARDLESS OF THE BASIS OF/FOR THE APPLICABLE DAMAGES, COSTS, LOSSES, OR LIABILITIES OR THE LEGAL THEORY(IES) (WHETHER TORT, NEGLIGENCE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, LAW OR STATUTE, OR OTHERWISE) UNDER WHICH ANY OF THE FOREGOING MIGHT ARISE OR BE SOUGHT OR CLAIMED, (2) ON AN AGGREGATE AND CUMULATIVE (AND NOT PER-INCIDENT) BASIS, (3) REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND (4) REGARDLESS OF WHETHER CUSTOMER OR ANY OTHER PARTY KNEW OF THE POSSIBILITY OF THE APPLICABLE DAMAGES, COSTS, LOSSES, OR LIABILITIES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 23 (EXCLUSIONS AND LIMITATION OF LIABILITY) COMPRISE AN ESSENTIAL ELEMENT AND MATERIAL TERM OF THE AGREEMENT AND THESE TOS AND THE PRICING FOR THE ORDERED SERVICES IS BASED ON THESE EXCLUSIONS AND LIMITATION AND WOULD HAVE BEEN HIGHER HAD THESE EXCLUSIONS AND LIMITATION NOT BEEN PART OF THE AGREEMENT.

24. RELATIONSHIP OF THE PARTIES

The relationship of the Parties under the Agreement shall be that of independent contractors, and not of employer/employee, parent/subsidiary, franchisor/franchisee, partners, or joint venturers. No fiduciary relationship exists between the Parties. Neither Party shall have the authority to bind or agree to, assume, or give rise to any legal or other obligation of the other Party, and neither Party shall represent to any party that it has such authority or perform any act or omission reasonably suggesting that it has such authority.

25. PUBLICITY: USE OF CUSTOMER MARKS

Beetexting shall have the right to use Customer’s name and logo in a factual manner for marketing or promotional purposes on Beetexting’s website, social media, and in other communication with existing or potential Beetexting customers. The Parties shall work together in good faith to issue at least one mutually agreed upon press release upon Customer’s launch of the Services, and Customer otherwise agrees to reasonably cooperate with Beetexting to serve as a reference upon request.

26. ENTIRE AGREEMENT

The Agreement constitutes the Parties’ entire understanding and agreement relating to Customer’s purchase, accessing, and use – and Beetexting’s sale and provision – of the Services and the other subject matter hereof and expressly supersedes and replaces any and all prior or contemporaneous agreements, understandings, assurances, representations, and/or warranties (whether written, oral, or otherwise) relating thereto.

27. EXECUTION AND INTERPRETATION OF THE AGREEMENT

DocuSign and other widely-used electronic signature tools shall be valid and effective methods of execution of any Order, amendment to the Agreement, or other document under or related to the Agreement. The Parties acknowledge and agree that the Agreement shall be deemed and treated as being jointly and equally drafted by them and shall not be interpreted or construed for or against any Party on the grounds that it was drafted by one Party or the other.

28. WAIVER

Except to the extent that the Agreement expressly provides otherwise, no partial exercise or failure to exercise a right or remedy under the Agreement shall waive that, or any other, right or remedy. A waiver of any right shall only be enforceable if in a writing signed by the waiving Party.

29. GOVERNING LAW; JURISDICTION

The Agreement shall be governed by and construed under the laws of Delaware without regard for choice or conflicts of law rules. The Parties agree to the exclusive venue and jurisdiction of the state and federal courts in Wilmington, Delaware, and waive all convenience and other objections thereto.

30. FORCE MAJEURE

Except for Customer’s payment obligations under the Agreement, a Party shall not be liable for (and shall not be deemed to have breached the Agreement as a result of) any failure or delay in performance caused by events beyond its reasonable control, including without limitation act of God; natural disaster; disturbance or riot; labor dispute; war or other conflict; act of terrorism; government action or intervention; emergency; pandemic or epidemic; or failure of third-party telecommunications, power, or network infrastructure or providers.

31. NOTICES

Any notice under the Agreement shall be provided in writing and delivered by personal service (which notices shall be deemed provided and effective as of the first day that 5:00 pm local time occurs following such delivery), overnight courier or mail (which notices shall be deemed provided and effective as of the day after delivery thereof to the courier or mail provider), or United States certified or registered mail (which notices shall be deemed provided and effective as of the fifth (5th) day after mailing) to (a) (for notices to Beetexting) Technocentra Group Inc., DBA Beetexting, 14170 Carole Dr, Bloomington, IL 61705 or in the explicit case of turning off auto Order renewals in accordance with Section 3 (Order Term) or (b) (for notices to Customer) any postal address that Beetexting has on file for Customer. Beetexting may also provide notices to Customer via email to any email address that Beetexting has on file for Customer.

32. NO THIRD-PARTY BENEFICIARIES

The Agreement is solely for the benefit of and enforceable by the Parties and their permitted assigns. The Parties acknowledge and agree that there are and shall be no third-party beneficiaries to the Agreement. Without limiting the foregoing, Beetexting shall have no obligation or liability to any user of Ordered Services, none of which shall be parties or third-party beneficiaries to the Agreement.

33. ASSIGNMENT

Neither Party may assign the Agreement or any portion hereof to a third party without the other Party’s prior written consent, which consent shall not be unreasonably withheld or delayed; except that Beetexting may assign the Agreement and some or all of its rights and/or obligations hereunder to any of its Affiliates or a successor or surviving entity in connection with a merger, acquisition, consolidation, or sale of all or substantially all of its assets. The Agreement shall bind and inure to the benefit of the Parties’ heirs, successors, and permitted assigns.

34. SEVERABILITY

If any term, condition, provision, or other part of the Agreement is held or found to be illegal, unlawful, invalid, or unenforceable, the Agreement shall be deemed amended to the extent necessary to enforce it in accordance with the Parties’ intent.

35. DEFINITIONS

As used in these TOS, the following capitalized terms shall have the following meanings:

(a) “Affiliate” of a party means a person or entity that is controlled by, controls, or is under common control with such party.

(b) “Beetexting Acceptable Use Policy Violation” means any act, omission, or accessing and/or use of Services, Ordered Services, or elements of Beetexting Infrastructure in violation or contravention of the Beetexting Acceptable Use Policy for which Customer is responsible or liable under the Beetexting Acceptable Use Policy or that otherwise relates to any Order, Ordered Services, or Customer account.

(c) “Beetexting Infrastructure” means Beetexting’s and its Affiliates’ network(s), systems, environments, infrastructure, and/or platform(s), including without limitation any component, feature, functionality, or other element of the foregoing.

(d) “Claim” means a claim, demand, suit, investigation, inquiry, litigation, or proceeding.

(e) “Customer Parties” means Customer; any of its Affiliates; any of Customer’s or its Affiliates’ Partners; the End Users, users, contractors, agents, employees, consultants, invitees, clients, or personnel of any of the foregoing; or any other party acting on behalf of or gaining access to Services, Ordered Services, Software, or Beetexting Infrastructure through any Customer account within Ordered Services or otherwise through or from any of the foregoing parties or their environments, infrastructure, equipment, networks, or systems.

(f) “Documentation” means the technical documentation created by or on behalf of Beetexting or its Affiliates and provided by or on behalf of Beetexting or its Affiliates to their customers.

(g) “End User” means a user of the Ordered Services, and may be a natural person.

(h) “Intellectual Property Right” means an intellectual, proprietary, or similar right (including without limitation any Mark, trade secret, know-how, patent, copyright, moral, or droit moral right; domain name or other registration; and application) that may exist now or in the future in any jurisdiction.

(i) “Mark” means trademark, trade dress, service mark, word mark, trade name, logo, uniform design, colors or color combinations, or other visual representation.

(j) “Partner” means a party’s supply chain partner, including without limitation a party’s wholesaler, distributor, reseller, and/or profit-sharing or referral partner.

(k) “Software” means any software that is part thereof or related to Services, Ordered Services, or Beetexting Infrastructure.