READ THIS AGREEMENT CAREFULLY BEFORE USING ANY BEEPXTRA (BEEP CYBERSPACE, BEEPXTRA WEBSITE) SERVICE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN BEEPXTRA AND YOU, INCLUDING ANY BEEPXTRA CUSTOMER, USER, OR WEBSITE VISITOR, (collectively referred to herein as the "Customer").
Terms of Service
These Terms of Service form part of an agreement (this/the "Agreement") between Beepxtra, and the Customer. This Agreement governs provision of Beepxtra's services (the "Service") and is effective as of the moment the Customer indicates agreement on the Beepxtra.com website, or from the moment the two parties sign a paper version, or as of the moment the Customer uses any Beepxtra service or usage of the Beepxtra.com website (whichever comes first).
- 1) The Service
- a) Beepxtra offers two distinct plans which the Customer agrees on upon registration.
- i) Mandatory payment of 2.75% from shops, companies and organisations to Beepxtra.
- ii) Compensation plan which is on a voluntary basis and exists solely on the world wide web based in the British Virgin Islands only.
- b) It is mandatory that prior to any proposals sent for 30,000+ Beep Cards and/or 10+ outlets to receive written confirmation from Beepxtra. The review process will take into account:
- i) A detailed proposal consisting of a high ranking managers contact information for the store, company or organisation in question.
- ii) That there is no conflict with another party who has already been approved for the same proposal.
- c) Beepxtra will provide the Service pursuant to this Agreement. the Customer agrees that the Service is for business use as well as for consumers, and the Customer hereby affirms:
- i) That it is not an individual less than 18 years old.
- d) The Service will include such optional features ("Optional Features") as are reflected in any Beepxtra quote accepted by the Customer and any other ordering records maintained by Beepxtra (collectively, the Customer's "Signup"). Optional Features may include:
- i) Consulting or other professional services provided by Beepxtra's staff (including without limitation to independent contractors operating under the Beepxtra name); and
- ii) Software and other products and services the Customer acquires through Beepxtra's online application, provided such product or service is specifically designated "Provided Directly by Beepxtra." Optional Features are subject to the same terms and conditions as other elements of the Service, including without limitation to the disclaimers and limitations of liability in Section 8 below, except as specifically set forth in this Agreement. Optional Features are also subject to the terms and conditions of any statement of work executed by authorized representatives of Customer and Beepxtra.
- e) The Service does not include any software, consulting service, or other product or service not provided by Beepxtra (collectively, "Third Party Products and Services").
- i) Third Party Products and Services include, without limitation to: (A) any third party consulting services that assists the Customer in utilizing the Service or otherwise related to the Service, including such services provided by third parties which Beepxtra has referred to the Customer; and (B) any and all software and other products and services the Customer acquires through Beepxtra Exchange, unless such product or service is specifically designated "Provided Directly by Beepxtra."
- ii) THIRD PARTY PRODUCTS AND SERVICES ARE NOT PART OF THE SERVICE, AND THE CUSTOMER ACQUIRES THEM DIRECTLY FROM THE THIRD PARTY PROVIDER pursuant to such a contract as the Customer and the third party provider may execute. BEEPXTRA IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PRODUCTS AND SERVICES, EVEN IF BEEPXTRA RECOMMENDS THE THIRD PARTY PROVIDER, EVEN IF THE THIRD PARTY PRODUCTS AND SERVICES ARE RELATED TO THE SERVICE OR TO THE CUSTOMER'S ABILITY TO RECEIVE OR EXPLOIT THE SERVICE, AND EVEN IF BEEPXTRA ACTS AS THE THIRD PARTY PROVIDER'S AGENT IN DELIVERING THE THIRD PARTY PRODUCT OR SERVICE, IN COLLECTING PAYMENT, OR IN OTHER WAYS WITHOUT LIMITING THE GENERALITY OF THE FOREGOING.BEEPXTRA WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR MAINTENANCE, UPDATES, OR UPGRADES OF THIRD PARTY PRODUCTS AND SERVICES OR FOR INTELLECTUAL PROPERTY INFRINGEMENT BY THIRD PARTY PRODUCTS AND SERVICES, AND BEEPXTRA PROVIDES NO WARRANTY OR INDEMNITY RELATED TO THIRD PARTY PRODUCTS AND SERVICES.
In the event that Beepxtra is held responsible or liable for Third Party Products and Services, despite the provisions of this Subsection 1(e)(ii), such responsibility or liability will be subject to the disclaimers and limitations of liability in Section 8 below.
- f) So long as Customer remains in compliance with the terms of this Agreement, Beepxtra grants the Customer a license to reproduce and use, during the term of this Agreement, such application program interface ("API") methods as Beepxtra may provide through the Service. The license in the preceding sentence is contingent upon the following: Customer will not reproduce or use the API methods for any purpose other than to receive the Service, and Customer will observe all Beepxtra's written instructions for use of the API methods. Customer may not sublicense the rights granted in this Subsection 1(f). Beepxtra retains all titles and interest in and to the API methods, and the Customer receives no rights other than those specifically granted in this Subsection 1(f).
- 2) Payment Plans & Terms
- a) Beepxtras payment system is in US$
- b) Customers requesting to obtain their own set of Beepxtra cards will be required to purchase a minimum of 200 cards and will be charged for package and postage.
- c) Customers requesting branded cards will be required to purchase a minimum of 5000 cards and will be charged for package and postage. Design of card is free of charge.
Stores, companies or organisations are responsible to pay any sales and/or purchase tax at point of sale Beepxtra is not responsible for payment of any tax.
- 3) Terms and Termination
- a) This Agreement will continue until terminated by either party pursuant to the procedures set forth in this Section 3.
- b) Customer may terminate this Agreement for material breach, effective on 30 days' written notice specifying the nature of the breach, provided this Agreement will not terminate if Beepxtra cures the breach before the effective date of termination. Customer may also terminate this Agreement for convenience. Customer will provide notice of any termination through the online cancellation form in the Customer Portal.
- c) Beepxtra may terminate the Service, any portion thereof, or this Agreement for material breach, including without limitation any breach of the provisions of the AUP, without advanced notice. Beepxtra is not required to refund any fees paid or prepaid after such termination. Beepxtra may also terminate this Agreement for convenience at any time. Beepxtra will provide 30 days' advanced written notice of any termination for convenience.
- d) No customer is allowed to sell, switch, or exchange down line groups at any time.
- 4) Acceptable Use.
- a) Customer represents that it has read the AUP, and Customer will adhere to its requirements.
- i) Without limiting the generality of the foregoing, Customer will not allow the Service or Beepxtra equipment to be used for activities prohibited by the AUP. Third party violations of the AUP using Customer's Service, including, points of access to the Internet, systems, software, or equipment assigned to Customer, will be considered violations by Customer.
- ii) Notwithstanding any provision to the contrary in this Agreement, and without limiting any of Beepxtra's rights or remedies, Beepxtra may suspend Service in whole or in part in the event that Beepxtra reasonably suspects an AUP violation. Reasonable suspicion pursuant to the preceding sentence includes, without limitation, a third party notice or claim that Customer's use of the Service infringes on third party rights. Beepxtra will make reasonable efforts to notify Customer before any such suspension, unless the AUP violation calls for immediate action to prevent injury or liability, in Beepxtra's opinion and at its sole discretion. Suspension pursuant to this Subsection 4(a)(ii) may continue so long as Beepxtra reasonably suspects an AUP violation. Beepxtra is not liable for any Service suspension authorized by this Subsection 4(a)(ii), or for any related loss, even if the suspected AUP violation did not occur.
- iii) Beepxtra has no obligation to monitor the Service for AUP violations or for other illegal or improper conduct but may do so and may disclose information regarding use of the Service for any reason, including: to satisfy laws, regulations, or governmental, legal, or law-enforcement requests; to operate the Service properly; and to protect itself and its customers. Beepxtra may grant law enforcement agencies access to its equipment, including equipment used to provide the Service to Customer.
- iv) Use of unofficial material not provided by Beepxtra, must first be submited to Beepxtra and written consent must be obtained with a Beepxtra Compliance Watermark.
- v) Before inviting any shop, company or organisation an initial verbal communication must first be established.
- vi) Beepxtra does not condone the use of spamming.
- 5) Service Levels & Remedies.
- a) Beepxtra will not be liable for Service interruptions or any other Service failures. In the event of hardware failure:
- i) Beepxtra will make reasonable efforts to recover lost data, but data-recovery is not guaranteed; and
- b) All Service features, are provided pursuant to the provisions of Section 8 below and the other terms and conditions of this Agreement.
- 6) Maintenance & Security.
- a) Beepxtra may interrupt Service to perform maintenance on Beepxtra equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. Beepxtra will exercise reasonable efforts to inform the Customer before interrupting Service and to repair the Service promptly.
- b) The Customer will promptly report any Service failure to Beepxtra via the online ticketing system in the customer Portal. Beepxtra is not responsible for providing physical access to or copies of software, data, or content stored on Beepxtra's equipment under any circumstances and is not required to provide access
- i) after any termination or suspension of the Customer's Service or
- ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by the Customer, or other interruption of network access.
- 7) Private and Confidential Information.
- b) The Customer will not use Confidential Information (as defined below) for any purpose other than to facilitate the Service. Except as specifically authorized in writing in advance by Beepxtra, the Customer will not disclose Confidential Information to any third party, and will prevent any such disclosure of Confidential Information in the Customer's possession or control. Without limiting the generality of the foregoing, the Customer will take reasonable precautions to protect Confidential Information and will not disclose Confidential Information to any of its employees or contractors who do not need to know. Notwithstanding the foregoing, the Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; provided the Customer gives Beepxtra advanced notice reasonably sufficient to allow Beepxtra to seek a protective order or otherwise to contest such required disclosure, and reasonably cooperates in such effort. The Customer will promptly notify Beepxtra in writing of any misuse or misappropriation of Confidential Information that comes to the Customer's attention and will cooperate with Beepxtra in investigating any such misappropriation and in mitigating any damages caused. Upon termination of this Agreement or upon Beepxtra's written request, the Customer will return all Confidential Information to Beepxtra and certify, in writing, the destruction of any copies thereof.
- i) "Confidential Information" refers to any information Beepxtra provides to the Customer in any form and marks "Confidential," and any information Beepxtra discloses orally and identifies as "Confidential" on or before disclosure. However, Confidential Information does not include information that: (A) is in the Customer's possession at the time of original disclosure by Beepxtra; or (B) becomes known publicly, before or after disclosure, other than as a result of the Customer's improper action or inaction.
- ii) The Customer agrees that breach of the provisions of this Subsection 7(c) might cause Beepxtra irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, Beepxtra will be entitled to preliminary, temporary, and/or permanent injunctive relief against such breach or threatened breach, without the necessity of proving actual damages.
- 8) Warranties, Disclaimers, & Limitations of Liability.
- a) BEEPXTRA MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Beepxtra does not warrant that the Service will be uninterrupted, or error-free,. The Service is provided with no warranties regarding protection from attacks, data integrity, or data availability. No communication between the Customer and Beepxtra will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 8 or elsewhere in this Agreement. As used in the previous sentence, "communications" include, without limitation, marketing materials and representations of salespeople, advice provided by Beepxtra or any of its representatives, quotes, the Customer's Signup, and any work order or other ordering document.
- b) BEEPXTRA WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
- c) Except to the extent specifically provided in Section 5 above, and except to the extent that applicable law specifically forbids such limitation of liability, BEEPXTRA WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY BEEPXTRA EFFORTS TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING:
- i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO THE CUSTOMER DATA OR TO ASSIGNED TERMINALS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO BEEPXTRA,
- ii) RELEASE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO THE CUSTOMER'S OWN CUSTOMERS AND OTHER USERS;
- iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION BY OTHER BEEPXTRA CUSTOMERS;
- iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA;
- v) ACTIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OTHER BEEPXTRA CUSTOMERS AND THIRD PARTY PRODUCTS AND SERVICES PROVIDERS;
- vi) ACTIONS OF BEEPXTRA EMPLOYEES, AGENTS, OR CONTRACTORS ACTING OUTSIDE THE SCOPE OF THEIR DUTIES;
- vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF DATA, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ACCIDENTAL DISCONNECTION AND TERMINATION OF SERVICE; AND
- viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE.
- d) THE LIABILITIES LIMITED BY THIS SECTION 8 APPLY:
- i) TO LIABILITY FOR NEGLIGENCE;
- ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE;
- iii) EVEN IF BEEPXTRA IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND
- iv) EVEN IF THE CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Beepxtra's limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 8 and elsewhere in this Agreement apply equally to Beepxtra's officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies. The Customer acknowledges and agrees that Beepxtra has set its prices and entered into this Agreement in reliance upon such limitations of liability, and that such limitations of liability form an essential basis of the bargain between Beepxtra and the Customer.
- 9) Indemnity.
The Customer will defend, indemnify, and hold harmless Beepxtra (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from a claim by any of the Customer's customers or users, or any other third party, arising out of or related to the Customer's use of, misuse of, or failure to use the Service, including without limitation:
- a) alleged Customer conduct that would breach this Agreement, including alleged infringement of intellectual property or privacy rights and other AUP violations;
- b) security breaches or other alleged faults in the Service, faults leading to the release or exposure of personally identifiable information or other private data
- c) any action taken by Beepxtra as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, judgments, settlements, and costs, including without limitation attorneys' fees.
- 10) Sales Members Stores support
The following sections outline the expectancy of Beep regarding the relationship between the stores and sales members. Commission-only sales members can be transient however the relationship between Beep and the stores is contractual and has to be protected.
Beep Sales members who support their stores in a professional and positive manner will always receive mutual support from Beep.
Poor sales performance, support, and sales members who are not capable of providing the expected turnover in Beep stores will not be allowed to damage the reputation of Beep.
- 11) General Expectancy of Turnover
All stores have a different numbers of transactions required in order to trade successfully. Stores transactions are referred to internally as ‘Beeps’. Beep has a general expectancy for stores to achieve a set target of Beeps after integration. The general targets from integration are: 10 Beeps after 7 days; 50 Beeps after 14 days; & 100 Beeps after 28 days.
- 12) Category Accepted Profile
Beep divides different stores into categories whereby the number of normal trading transactions are recorded. Some businesses can successfully trade on a small number of transactions and therefore the Category Accepted profile for that type of business is set lower than another business that relies on higher volume of transactions to trade successfully.
- 13) Beep Qualified Sales Member
Irrespective of rank no Beep member is regarded as ‘Qualified’ unless the following is achieved:
- A minimum of 10 personally introduced stores that have achieved 100 unique Beeps.
- After the first 10 stores have achieved 100 Beeps the member maintains at least 10 personally introduced stores that perpetually meet the minimum Category Accepted Profile.
- The title ‘Qualified Sales Member’ will be added to each relevant sales member’s dashboard.
- A minimum of 10 personally introduced stores that have achieved 100 unique Beeps.
- 14) Non-Performance Notice
Should any store fall below the general expectancy at any time in the first 28 days or fall below the Category Accepted profile then Beep will post a notice on the dashboard of the member who introduced the store and the next two team members upline, requesting the introducer to email to Beep an explanation as to why the store is falling below expected turnover.
Satisfactory replies will result in no further action, however Beep retains the right to re-issue the Non-Performance notice at any time.
If there is no satisfactory reply from any of the email recipients within 7 days then the store will be transferred to the Beep orphan account and all commissions will be retained by company.
- 15) Transfer of Stores
All Orphan stores will be supported wherever possible by Beep however the intention is to re-distribute them to a Beep Qualified Sales Member.
- Any available orphan stores will be offered to local Qualified Sales Members who can reasonably commute to and support that store.
- Reasonably commute is defined as being able to travel to the store within 2 hours.
- 16) Sovereignty of the Store
Each store has the right to decide who represents them. The reasonable wishes of the store outweigh the wishes of the Beep member.
If a store wishes to maintain the Beep service but serves notice (in writing) that the sales member is not suitable to represent the store the member will be considered to be removed.
- All attempts will be made to maintain the integrity of the original introduction but if the store makes a reasonable account of why the sales member is not meeting the required standards of the store, the stores wishes will hold sovereignty.
- To be transferred a store has to sign a transfer request stating that they wish their business to be transferred to Beep Orphan account with intention of transfer to Beep Qualified sales member.
- 17) Removal of Stores from the Beep Map
If Beep management decide for any reason that a store is not a good representation of the service it will be removed from the Beep Map with a view to cancel the agreement between Beep and the store.
- 18) Transfer of Membership
If a Beep sales member wishes to transfer from one line of referral to another they have to adhere to the following criteria:
- They have to resign their Beep membership sending an email to [email protected]
- They have to remain completely inactive in all Beep activities for 4 months from the date of the email.
- They cannot transfer any existing team with them
- They cannot transfer any existing stores with them
- They have to resign their Beep membership sending an email to [email protected]
- 19) Assignment of Store Referrals
There are many incidences where a store can be introduced and successfully established by a Beep sales member who although is linked by line of referral to the store is not the actual introducer. The commission from the 2.75% Beep fee cannot be assigned to anyone but the introducer, however the introducer’s commissions (internally known as ‘Now Money’), can be assigned to the sales member who worked with the store to successfully establish that business.
Should any store or member wish to assign the introducers commission they enter the Beep card number into the Assign Referral tab in their dashboard.
Assigned introducers commissions can be cancelled in the same Assign Referral tab at any time.
- 20) Miscellaneous.
- a) Title and intellectual property rights to the Service and all components thereof are owned by Beepxtra and its licensors and suppliers. All hardware and addresses provided by Beepxtra are licensed to the Customer temporarily and remain Beepxtra's sole and exclusive property. This Agreement does not grant the Customer a license to any software used to provide the Service or associated with the Service (collectively, "Software"), or to any other software, by implication, by estoppel, or otherwise. Without limiting the generality of the foregoing, the Customer will not reproduce, reverse engineer, decompile, or disassemble the Software. The logos, service marks, and trademarks (collectively, "Trademarks") displayed on Beepxtra's website and through the Service, whether or not registered, belong to Beepxtra and its licensors and suppliers. Neither this Agreement nor any Beepxtra website grants a license to any Trademark, by implication, by estoppel, or otherwise. Beepxtra may include the Customer's name in any list of the customers used for marketing or other purposes.
- b) The Customer is responsible for maintaining the confidentiality of its usernames and passwords, and the Customer will not transfer or sell to any third party such usernames or passwords, or Customer's access to the Service.
- c) Beepxtra is not obligated to sell the Customer any Service feature not listed in the Customer's Signup, or to provide more Service than required by such Signup.
- d) During the term of this Agreement and for 180 days thereafter, the Customer will not encourage or solicit any Beepxtra employee or independent contractor to leave Beepxtra's employ, or otherwise interfere with Beepxtra's employment relationships.
- e) The parties agree that the fees listed as liquidated damages in Subsection 2(c) and elsewhere in this Agreement do not constitute penalties and are reasonable in light of the harm that will be caused by breach, the difficulties of proof of loss, and the inconvenience and infeasibility of otherwise obtaining an adequate remedy. No remedy of Beepxtra provided in this Agreement for late payment, declined credit card charges, or other breaches will limit any other right or remedy of Beepxtra at law or in equity.
- f) All written communications to the Customer will be deemed delivered if sent to the contact points provided to Beepxtra at the time of order, or to such other contact points as the Customer provides in writing. Customer will include a valid e-mail address with such contact points. All written communications to Beepxtra will be mailed to the Customer, unless Beepxtra notifies the Customer in writing of alternate contact information, except to the extent that this Agreement provides that such communication will be made through the Customer Portal.
- g) Beepxtra may revise this Agreement from time to time by posting an amended version at the Beepxtra website and sending the Customer written notice thereof.
- h) This Agreement is to be construed in accordance with and governed by the internal laws of the British Virgin Island without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction other than the internal laws of the the British Virgin Island to the rights and duties of the parties. The parties hereby consent to personal and exclusive jurisdiction and venue of the courts of the British Virgin Island .
- i) to resolve any complaint regarding the Service or receive any further information regarding the Service, the Customer should contact Beepxtra at the contact points provided on Beepxtra's website under "Contact Us"; and
- j) The Customer will not use the Service in any way that violates applicable laws or regulations.
- k) No delay, failure, or waiver of either party's exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
- l) In the event of any conflict between these Terms of Service and any other element of this Agreement, or any ordering document or statement of work, these Terms of Service will govern.
- m) The Customer may not assign this Agreement or any of its rights or obligations hereunder without Beepxtra's express written consent. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
- n) If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired.
- o) This Agreement, including those documents incorporated by reference, embodies the final, full, and exclusive statement of the agreement between the parties, and supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to its subject-matter.
- p) In the case of loss of card it is the responsibility of the Customer to inform Beepxtra via the website or at a Beepxtra store.