Beyond Limits Cloud Service Level Agreement

    1. Definitions
    “Agreement” means these Beyond Limits Terms and Conditions together with the Order     Form attached hereto and executed by Beyond Limits and Customer.

    "Beyond Limits” means Beyond Limits – Altec, Inc.

    “Customer” means the customer listed on the Order Form.

    “Order Form” means the DocLink Cloud Order Form.

    2. Services provided by Beyond Limits

    DocLink is be provided by Beyond Limits as follows:

    a)  DocLink Cloud. DocLink Cloud is a web-based application designed to effectively manage and track the Customer’s digital documents throughout the entire lifecycle of the Customer’s day-to- day business process (“Software”).

    b)  Services. Beyond Limits shall perform the services set forth in this Agreement and in the Order Form (“Services”).


    3. Term

    The service period will begin immediately upon Customer’s execution of the Order Form (“Effective Date”), and shall continue in full force and effect for the term as noted on the Order Form (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each a “Renewal Term”). After the Initial Term, to terminate this Agreement, either party must give at least ninety (90) days prior written notice of termination to the other party. The Initial Term, together with any Renewal Term, shall be collectively referred to in this Agreement as the "Term”.


    4. Price and Payments
    Payment: Payment and Taxes. Except as otherwise stated on the Order Form, payment must be made in U.S. Dollars within thirty (30) days of date of invoice. All fees shall be exclusive of any sales, use, value-added or similar taxes, duties, imposts, customs, levies or other withholding (“Tax”). Any such Tax shall be paid by the Customer in addition to fees. In the event of local tax withholding on Customer payments to Beyond Limits, such payments shall be grossed-up to provide Beyond Limits the same amount after such withholding as it would have received without the imposition of such withholding, together with tax receipts or similar evidence of any withholding made by Customer. Customer agrees that, notwithstanding any other provisions of this Agreement, the fees specified hereunder have been fully earned by Beyond Limits, and such fees are due and payable to Beyond Limits(without any further performance on the part of Beyond Limits) in accordance with the provisions of this Agreement. All such payments will be made without setoff, counterclaim, recourse or other defense. All payments not paid within thirty (30) days of the date of invoice are deemed late. Late payments shall accrue interest at the rate of one and one-half percent (1.5%) per month until paid in full. Beyond Limits reserves the right to refuse to provide service while any accrued late fees and/or payments remain unpaid.

    Increases: Beyond Limits may increase its annual fees, but the amount of each such increase shall not exceed five percent (5%) of the fee for the immediately preceding year. Failure to make timely payment of any fee shall not constitute a waiver by Beyond Limits of such fee, the obligation to make such payment, or a valid termination.

    Third Party Integration and API Charges: Notwithstanding anything provided in the foregoing, Customer acknowledges and agrees that the Software and Services may integrate and use additional third party service providers and API integrations for the benefit of Customer and that Customer may, through its purpose and use of the Services provided by Beyond Limits make requests to such third party service provider servers and API that are integrated into the Software and Services. Customer acknowledges and agrees that certain of such third party service providers charge on a per-request basis and that such charges shall be paid by Customer based on Customer’s specific request volume to such service provider integrations. For the avoidance of doubt, the charges shall be based on Customer’s specific volume of requests to third party API servers and such costs shall be in addition to the standard subscription fees set forth in the Order Form.

    Acceptable Use

    a) Without limitation, Customer agrees that it and its representatives and affiliates will use the Services only in accordance with this Agreement, and will not use them to: i) knowingly transmit, distribute, publish or disseminate any data, computing and information services and software and other content, materials and documentation (“Content”) or other information (A) that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, objectionable or libelous, or promotes such activity; (B) that (or the transmission, distribution, publication or dissemination of which) infringes any patent, trademark, trade secret, copyright, or other rights or proprietary rights of any party, violates any law or contractual or fiduciary relationships (such as misuse of inside, proprietary or confidential information); (C) that is harmful to minors; or (D) that contains software viruses, trojan horses, worms, time bombs, cancelbots or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or circumvent any "copy-protect" devices, any other harmful or disruptive program, or any warez, cracks, hacks, associated utilities or other piracy related information; ii) provide inaccurate, incomplete, outdated or misleading registration information or Email addresses, create a false identity or manipulate identifiers to mislead or to disguise the origin of any information transmitted through the Services, or impersonate or otherwise misrepresent any affiliation with any person or entity; iii) modify, use, download, publish, upload, post, transmit, transfer, sell, reproduce, create new or derivative works from, license, distribute, perform, display, broadcast, exploit or otherwise copy any portion of the Services, or any products or other services (including software) obtained there from, or permit access to the same by any unauthorized person or entity; iv) attempt to gain unauthorized access to the Services, Content, registration information, personal information, or other computer systems, servers or networks connected to the Services; or v) violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any self-regulatory organization such as the NASD, or any rules of any securities exchange of any jurisdiction, laws.

    b)  The transmission through the Services of technical data or software exported from the United States and/or the country(ies) in which Customer and/or its representatives and affiliates reside, shall be done only in accordance with applicable laws and regulations regarding online conduct and acceptable content of the Customer and its representatives and affiliates' transmissions.

    c)  Beyond Limits shall process Customer Personal Data in accordance with the Data Processing Addendum.

    d)  Beyond Limits reserves the right to revise, amend, or modify this Agreement and Beyond Limits’ other policies and agreements at any time and in any manner concerning acceptable use. Notice of any revision, amendment, or modification will be posted in accordance with this Agreement and Customer will be notified in writing 30 days before any such agreement or policy changes.


    5. Privacy Policy

    Customer Data shall be processed pursuant to the Data Processing Addendum. Customer Data does not include data generated or derived by Beyond Limits through the operation of the Software or Services (“Service Generated Data”) or Support Data.

    a)  “Support Data” is data that is provided or made available to Beyond Limits by or on behalf of Customer through an engagement with Beyond Limits, including: (i) contracting due diligence engagements; (ii) to obtain technical/customer support; and (iii) in connection with business and individual customer surveys. Support Data may include the name, address, telephone number, billing information (such as a credit card number), and the type of personal computer being used by Customers to access the Services. Support Data is used to manage the relationship with the Customer and is not shared with third parties.

    b)  Beyond Limits may use Service Generate Data and Support Data to improve the quality of Beyond Limits' services and to develop new services and products.

    c)  Aggregated, non-personally identifying information may be shared with third parties without limitation.


    6. Application Usage

    a) Beyond Limits grants to each Customer a limited, nonexclusive, nontransferable, and non-assignable license for the duration of the Term, throughout the United States of America to use the Software, the documentation associated therewith, and any updates thereto to access and utilize the Services.

    b)  The Services constitute confidential and proprietary information of Beyond Limits that embody trade secrets and intellectual property protected under United States copyright laws, other laws, and international treaty provisions. All right, title, and interest in and to the Services including associated intellectual property rights, is and shall remain with Beyond Limits. Neither Customer nor its representatives and affiliates shall translate, decompile, reverse engineer, distribute, remarket, or otherwise dispose of the Services or any part thereof.

    c)  You may not download, use, or otherwise export or re-export the Services or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. This license shall terminate on the conclusion or termination of this Agreement.

    d)  Customer agrees not to decompile, reverse compile, disassemble or otherwise reverse engineer the Software, or permit, help, or encourage others to do so.

    7. Termination

    This Agreement may be terminated by either party for cause upon thirty (30) days written notice written notice to the other party if: (i) the other party ceases to do business in the ordinary course or is insolvent (e.g. unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency
    proceeding which is not dismissed within ninety (90) days, or makes any assignment for the benefit of creditors, or (ii) the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof from the other party. In the event Customer chooses to cease usage during the term this does not relieve the obligation to pay for the remaining subscription term as scheduled.


    8. Down Time/Disaster Recovery

    Beyond Limits Services are supported by redundant systems that are monitored twenty-four (24) hours a day. Beyond Limits will use commercially reasonable efforts to maintain well-functioning host systems on a consistent basis.


    9. Service Level Agreement

    Beyond Limits will provide the following levels of response to Service inquiries based on the following problem impact levels:

    1. Impact 1, critical - the problem reporter cannot use Services and is unable to do productive work;

    2. Impact 2, major - the problem reporter cannot use important functions of Services and is not at the normal level of productivity;

    3. Impact 3, minor - the problem reporter's usage of Services is not seriously affected; or

    4. Impact 4, none - the problem reporter thinks the usability of Services is unsatisfactory or has a suggestion.

    Beyond Limits’ response to the problem Impact levels will be as follows:

    Impact Level

    Assigned to Help Desk Representative

    Initial Customer Contact

    1

    Within 2 hours

    Within 1 hour

    2

    Within 2 hours

    Within 4 hours

    3

    Within 4 hours

    Within 24 hours

    4

    Within 48 hours

     Within 48 hours

    NETWORK AND SERVERS AVAILABILITY

    If network or server availability for the full month is below the guaranteed level, the Beyond Limits will issue a refund to Customer according to the schedule below.

    Server Availability

    Amount of the refund as a % of monthly fee

    99.99%to server guarantee level

    5% of monthly fee credited

    98.0% to 99.98%

    10% of monthly fee credited

    95.0% to 97.9%

    15% of monthly fee credited

    90.0% to 94.9%

    25% of monthly fee credited

    89.9% or below

    2.5% credited for every 1% of lost availability up to the maximum total penalty limit. 

     



    To receive a refund for downtime, Customer must (a) be in good financial standing with Beyond Limits, and (b) send an email or written refund request to the Billing Department in the month immediately following the month for which Customer are seeking a refund. Refund requests must include Customer account username and the dates and times of server unavailability.

    The Billing Department will compare information provided by Customer to the server availability monitoring data that Beyond Limits maintains. A refund is issued if Beyond Limits can confirm from the monitoring data the server availability warranting the refund. The maximum total penalty limit is 50% of the applicable monthly fees.

    The Service Commitment does not apply to any unavailability, suspension or termination of DocLink Cloud, or any other DocLink Cloud performance issues that:

    a. Are caused by factors outside of Beyond Limits' reasonable control, including Internet access or related problems beyond the demAarcation point of DocLink Cloud and its providers

    b. Result from any voluntary actions or inactions from you or any third party

    c. Result from the Customer’s equipment, software or other technology and/or third-party equipment, software or other technology

    d. Result from any regularly scheduled maintenance

    e. Arise from Beyond Limits' suspension and termination of the Customer’s right to use DocLink Cloud

    f. If availability is impacted by factors other than those explicitly used in Beyond Limits' server availability calculation, Beyond Limits may issue a Service Credit considering such factors at Beyond Limits' discretion.

    10. Support

    Two (2) hours per month of telephone consultation time, in addition to all warranty related calls, is provided at no charge. The two (2) hours cannot be applied to any other services or products offered by Beyond Limits. The two (2) hours cannot be accrued month-to-month nor is it intended to indicate a total of twenty-four (24) hours in any 12-month period. Hours per month exceeding two (2) will be charged at prevailing support rates. 

    11. Confidentiality

    a)  Both parties shall maintain as confidential and shall not disclose, copy, nor use for purposes other than the performance of this Agreement, any information which relates to the other party's business affairs, trade secrets, technology, research and development, pricing, or the terms of this Agreement ("Confidential Information") and each agrees to protect that Confidential Information with the same degree of care it exercises to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent, use, disclosure, or publication thereof. Upon expiration or termination of this Agreement, both parties agree to return respective to each other all such Confidential Information. Breach of confidentiality may cause irreparable damage and therefore, the injured party shall have the right to seek equitable and injunctive relief, and to seek to recover the amount of damages (including reasonable attorneys' fees and expenses) incurred in connection with such unauthorized use. Both parties shall not be liable for the disclosure of any confidential information that: (i) is in the public domain at the time of disclosure; (ii) was in possession of or demonstrably known by the other party prior to its receipt; (iii) is independently developed by either party without use of confidential information; or (iv) becomes known from a source other than the parties without breach of obligations under this Agreement. Each party may disclose Confidential Information if such disclosure is required by law, rule or regulation, or judicial or governmental order or order of any self-regulatory organization provided that the party disclosing Confidential Information under these circumstances gives the other reasonable notice (an opportunity to protect its interests) prior to making such disclosure to the extent possible.

    b) The parties acknowledge that a material inducement to the Agreement of Beyond Limits and Customer to enter into this Agreement was the covenant that neither party will disclose the specific terms and conditions of this Agreement to any person or entity other than as may be absolutely necessary to carry out the provisions and intent of this Agreement; provided, however, that either party may disclose this Agreement to the SEC or FINRA

    12. Representations, Warranties, and Disclaimers

    a)  Beyond Limits represents and warrants that it has sufficient right, title, and/or interest in, and to all intellectual property required to perform all Services, as specified in this Agreement. In addition, Beyond Limits represents and warrants that to Beyond Limits knowledge, use of such intellectual property rights in connection with the Services will not violate or infringe the intellectual property rights of any person or party.

    b)  OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, TO ANY PERSON OR ENTITY WITH RESPECT TO THE SERVICES, OR ANY TECHNOLOGY, CONTENT OR TRADEMARKS WITH RESPECT TO THE DEVELOPED SITES, OR ANY TECHNOLOGY, CONTENT, OR TRADEMARKS, OR ANY OTHER INFORMATION, DATA, PRODUCTS, SERVICES, ACCURACY OR RESULTS OF USE, RIGHTS, CYBERSECURITY AND PROTECTION OF DATA PROVIDED BY CUSTOMER, OR OTHER SUBJECT MATTER OF THIS AGREEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BEYOND LIMITS DOES NOT MAKE AND DISCLAIMS, AND CUSTOMER WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. THE SERVICES PROVIDED HEREUNDER MAY INCLUDE USE OF PRODUCTS OWNED BY THIRD PARTIES, OVER WHICH BEYOND LIMITS MAY HAVE NO CONTROL, INCLUDING WITHOUT LIMITATION THE SMART CAPTURE PRODUCT, AND THE DISCLAIMERS SET FORTH HEREIN EXTEND TO ALL SUCH PRODUCTS. 

     c)  Beyond Limits does not warrant, represent, and/or guarantee that the Services will run uninterrupted or error-free.

    13. Limitation of Liability/Liquidated Damages

    IN NO EVENT WILL BEYOND LIMITS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. BEYOND LIMITS WILL HAVE NO LIABILITY WITH RESPECT TO OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF BEYOND LIMITS HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. BEYOND LIMITS AND CUSTOMER AGREE THAT BASED UPON THE CIRCUMSTANCES AND FACTS NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH CUSTOMER‘S DAMAGE BY REASON OF BEYOND LIMITS' DEFAULT OR BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT. ACCORDINGLY, CUSTOMER AND BEYOND LIMITS AGREE THAT IN THE EVENT OF DEFAULT OR BREACH BY BEYOND LIMITS OF ITS OBLIGATIONS UNDER THIS AGREEMENT, IT WOULD BE REASONABLE AT SUCH TIME TO AWARD CUSTOMER AND ITS REPRESENTATIVES AND AFFILIATES, AS THEIR SOLE AND EXCLUSIVE REMEDY AT LAW, “LIQUIDATED DAMAGES” EQUAL TO THE AMOUNT CUSTOMER ACTUALLY PAID TO BEYOND LIMITS UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY BEYOND LIMITS UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE BEYOND LIMITS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION.

    14. Indemnity

    Customer will indemnify, defend, and hold Beyond Limits and Beyond Limits directors, officers, employees, agents, contractors, vendors, suppliers, employees, managers, and assigns harmless against any claim, demand, suit, or proceeding made or brought against Beyond Limits by a third party (i) alleging that Customer’s data, Customer’s use of the Software and/or Services, or any other conduct pursuant to this Agreement (A) infringes or misappropriates such third party’s intellectual property rights or (B) violates applicable law or government regulation, (ii) arising out of a breach or release of Customer’s data. or (iii) arising out of a breach of this Agreement by Customer (collectively a “Claim”) from any damages, attorneys’ fees, costs, expenses, fees, awards, and liabilities resulting from any such Claim.

    15. Severability

    If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

    16. Force Majeure

    The performance of either party under this Agreement may be suspended to the extent and for the period of time that such party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including, without limitation, acts of nature, acts of civil or military authority including governmental priorities, strikes or other labor disturbances, fires, floods, epidemics, wars, or riots). After sixty (60) cumulative days of suspension on the part of one party, the other party may, at its sole discretion, terminate its obligations without further notice or liability.

    Beyond Limits' Services are subject to certain “potential risks,” including, but not limited to, natural disasters, electrical outages, telephone line and/or cable problems, and other problems not listed herein, which may in fact interrupt Beyond Limits Services, but are in no way the fault of Beyond Limits. Beyond Limits will use reasonable efforts to prevent such interruptions in the Services. Beyond Limits will also use best efforts to fix any such interruptions in the Services. Customer is aware of these risks and hereby agree to hold Beyond Limits harmless for any and all damages that may arise thereof.

    17. Notice

    Any notice to be given or other document to be delivered by any party to the other or others hereunder, may be delivered in person to a party or an officer of any party, or may be deposited in the United States mail, duly certified or registered, return receipt requested, with postage prepaid, or by Federal Express or other similar overnight delivery service marked for next Business Day delivery as follows:

    Beyond Limits – Altec, Inc.
    23422 Mill Creek Drive Ste. 225
    Laguna Hills, CA 92653
    Attn: Finance

    18. Entire Agreement

    This Agreement represents the entire agreement of the parties hereto related to the subject matter hereof and any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in this Agreement are of no force and effect. This Agreement may be modified only in writing, any such modification being signed by both parties.

    19. Authority

    Each party hereto represents and warrants that it has full power and authority to enter into this Agreement and to fulfill its obligations hereunder.

    20. Dispute Resolution

    Any disputes which arise between the parties to this Agreement, including disputes regarding the terms of this Agreement or the enforcement of this agreement, shall be resolved through arbitration, which will be submitted to the American Arbitration Association for resolution in Los Angeles County, California in accordance with the expedited procedures for resolution of commercial disputes then in effect. The Arbitrator’s decision will be final and non-appealable. The parties agree that the agreement is made under and shall be interpreted in accordance with the laws of the California and that the laws of the State of California will be applicable as the law to be applied if a dispute is submitted to arbitration.

    21. Assignment, Successors, and Assigns

    Customer may not assign its rights, duties, and/ or obligations arising under and to this Agreement without the prior written consent of Beyond Limits. Any transaction involving the purchase, sale, transfer, gift, or assignment of fifty percent (50%) or more of Customer’s ownership or all or substantially all of Customer’s assets constitutes an assignment of this Agreement, which must be consented to by Beyond Limits. Subject to limitations expressed elsewhere, each and all of the covenants and conditions of this Agreement shall inure to the benefit of and shall be binding upon the permitted successors-in-interest, assigns, and representatives of the parties hereto.

    22. Construction of Agreement

    The agreements contained herein shall not be construed in favor of or against either party, but shall be construed as if both parties prepared this Agreement.

    23. Publicity

    In consideration of the terms hereunder, Beyond Limits may publicly (a) identify Customer in published lists of licensees of Beyond Limits and (b) describe Customer's successful use of the Software. Customer may, upon request, review any written materials referencing it in advance of publication.

    24. Legal Representation

    The parties acknowledge that this is a legal document and that they have been advised to obtain the advice of legal counsel in connection with its review and execution of this Agreement. The parties covenant that they will not deny the enforceability of this Agreement on the basis that they elected not to obtain legal counsel to review and approve this Agreement.