Last update: March 19, 2020
The owner of this Site is Beenario GmbH with VAT number DE299463958, located in Tonbachstrasse 102, 72270 Baiersbronn, Germany and registered in the German commercial Registry of Amtsgericht Stuttgart with registration number HRB 752438. To contact us, please email: [email protected].
These Bugfender Terms of Service between the user (“Customer”, “you” and “your”) and Beenario GmbH (“Beenario,” “we,” “us,” and “our”), a German limited corporation, as updated from time to time, and together with the documents and policies referred to herein (collectively, the “Agreement”), govern your access to and use of the Bugfender Materials. Section 19 contains definitions of other terms that are capitalized in this Agreement.
By accessing or using the Bugfender Materials in any manner, you are agreeing to the Agreement (i) on behalf of the entity for which you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity, or (ii) on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement.
Also, to enter into this Agreement and thereby use the Site, Services and Software, you as an individual must be at least 18 years old. Accordingly, you represent and warrant that you are at least 18 years old.
By accessing or using the Site, you may get information about Bugfender Materials, including our products and services, activities and contact information. The access and use of the Site are free for the Users and previous registration is not needed. However,
- Access and Use of the Site
1.1. Use of the Site. By accessing or using the Site, you may get information about Bugfender Materials, including our products and services, activities and contact information. The access and use of the Site are free for the Users and previous registration is not needed. However, Customers may be required to register and establish an account in order to access and use Bugfender Materials. Customers may also access Bugfender through their GitHub account or by registering on GitHub platform.
1.2. For creating an account. Customers must provide true, accurate, current and complete information on the applicable registration form (collectively, the “Registration Data”):
- Customers must provide a valid email address for each person authorized to use Customer’s account.
- Each person who uses the Service must have a separate username and password.
- Customers must provide any other information requested by Beenario in order to complete the registration process.
- Customers will maintain (and are responsible for maintaining) the confidentiality of the user name, password and other Registration Data associated with its account.
- Customers may not share Customer passwords or access codes with a third party.
1.2 Unauthorised access. Customer is responsible for any access and use of the Bugfender Materials via Customer’s or its User’s accounts and for all activities that occur in connection with Customer’s or its User’s accounts, regardless of whether the activities were undertaken by Customer, its User or a third party. Customer agrees to notify Beenario immediately if it believes that an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen. Customer is solely responsible for its Users’ compliance with the Agreement.
1.3 Data update. Customer also must maintain and promptly update the Registration Data to ensure that it remains true, accurate, current and complete. If we have reasonable grounds to suspect that your information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and/or disable and prohibit any and all current or future access to and use of all or any portion of the Bugfender Materials by you.
1.4 Data modification. Customer can modify its Registration Data, change the password, enable two-factor authentication, customize the notification system and delete its account from the user account.
Beenario will not be liable for any loss or damage arising from Customer’s failure to comply with this Section.
2.1. Provision of Service. Beenario will make the Bugfender Online Service available to you during the Subscription Term identified on the Order Document. The Service’s features consist of remote logging, crash reporting, and user feedback tool. Trial offering of the Service will be for the term specified by Beenario and use will be only for the purposes of evaluation and demonstration of the capabilities of the Service and not for any commercial or for-profit purposes. Customer is responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use the Service and for paying all charges related thereto, including, without limitation, Internet service provider fees, telecommunications fees, and the costs of any equipment and third-party software (including, without limitation, encryption and other security technology).
2.2. Access to and Use of the Service. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Customer may (i) access and use the Site and the Services in accordance with the Documentation and this Agreement, and (ii) access and use the results, reports and other information generated with respect to the performance of the Customer App that is made available to Customer through the Services (including copies of such results, reports and other information), in each case to monitor, maintain and improve the Customer App.
2.3. Purchased Capacity. The Service is provided to Customer according to the usage capacity that Customer purchases, as listed on the Order Document. If Customer exceeds such limitation, then promptly upon Beenario’s request, Customer agrees to execute an Order Document for such additional usage, as may be applicable, payable pursuant to Section 9. Any other access to and use of the Site or Service is strictly prohibited.
3.1. License to Software. Access to the Service may require or allow for use of one or more Software. Use of all Software is subject to the end user license agreement provided or referenced by Beenario in connection with such Software. In the case of the Bugfender SDK, the following applies: Subject to and conditioned on compliance with the terms and conditions of this Agreement, including without limitation compliance with the obligations regarding the End User Requirements, Beenario hereby grants Customer a worldwide non-exclusive, non-transferable, revocable, royalty-free license (without the right to sublicense except as expressly permitted by this Section) limited to: (i) install, use, and copy the Bugfender SDK for the purpose of debugging, monitoring, developing and operating the Customer App, and (ii) include the Bugfender SDK in the Customer App and distribute to End Users (directly or indirectly in accordance with Customer’s regular distribution channels for the Customer App) the Bugfender SDK as contained within the Customer App. This license to the Bugfender SDK is perpetual but you may not be able to view data or results generated by the Bugfender SDK if the Service is terminated or expired.
3.2. End User Requirements. For each distribution and copy of the Customer App that contains the Bugfender SDK, Customer will assume full responsibility and take all necessary measures to ensure that, at a minimum, complies with the following (such criteria, the “End User Requirements”): (a) limits the license grant to use of the Customer App by the End User on the applicable mobile device(s) on a specified mobile platform; (b) disclaims all warranties by and on behalf of and limits all liabilities of Beenario; (c) prohibits decompilation and other reverse engineering of the Bugfender Materials; (d) provides that Customer will protect the privacy and legal rights of End Users under all applicable laws and regulations, which includes communicating a legally adequate privacy notice; (e) notifies End Users that certain information will be made available to Customer, Beenario and other entities and that additional charges (e.g., data usage charges) may be incurred by End Users (e.g., in the transmission of such information) by their mobile service providers; (f) obtains sufficient authorization from End Users to transfer such information to Customer, Beenario and other entities and to permit the storage and processing of such information; and (g) otherwise obtains and maintains any required consents from End Users to allow Beenario (including its service providers) to provide or have provided the Services, including without limitation consent for Customer, Beenario and other entities to access, monitor, use and disclose End User data. In the license agreement with End Users, Customer will not refer to Beenario by name or with other identifying information; instead, Customer will address the End User Requirements by referring to its “suppliers,” “licensors” and “service providers” (or using similar words that refer to Beenario).
3.3. On-Premise Service. Upon request of the Customer, the Software can be installed to run on the computer on the premises under the control of the Customer, in which case the License for On-Premise Use will apply.
THE BUGFENDER MATERIALS ARE BEING LICENSED AND NOT SOLD TO YOU. BEENARIO PERMITS YOU TO DOWNLOAD, INSTALL, ACCESS, OR OTHERWISE COPY OR USE THE BUGFENDER MATERIALS (INCLUDING THE FUNCTIONALITY OR FEATURES THEREOF), AS APPROPRIATE, ONLY IN ACCORDANCE WITH THIS AGREEMENT.
- License Restrictions
Except as expressly permitted in this Agreement, Customer may not, and will not permit any third party to use (or plan, encourage or help others to use) the Services for any purpose or in any manner that is prohibited by these Terms or by applicable law or in breach of any third party rights. Especially, Customer will not: (a) copy or modify, translate, or create any derivative works of all or any portion of the Bugfender Materials (except that it may modify portions of the Software provided in source code form in accordance with, and to the extent instructions to modify such portions are set forth in, the Documentation); (b) reverse engineer (except and only to the extent specifically allowed by law), decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, algorithms, methods, or techniques used or embodied in the Bugfender Materials; (c) distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Bugfender Materials or any rights granted in this Agreement, to any other person or legal entity; (d) use the Bugfender Materials for timesharing, or service bureau purposes or for any purpose other than its own internal business purposes; (e) access or use the Bugfender Materials in order to monitor its availability, performance, or functionality for the purpose of developing a competing or similar product or services; (f) remove, circumvent, disable, damage or otherwise interfere with any security features of the Bugfender Materials; (g) gain or attempt to gain unauthorized access to the Site or the Service (in whole or in part), other accounts, or computer systems or networks related to the Site or the Service (whether through hacking, password mining or any other means); (h) remove, alter, or obscure any copyright, trademark, confidentiality or proprietary or other notices, labels, or marks from or on the Bugfender Materials; (i) interfere with or disrupt the Service, or servers or networks connected to any website through which the Service is provided; or (j) use the Service other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any applicable privacy laws and intellectual property laws). This license and Customer’s account are personal and may only be used by the person/s for whom it has been authorized. Beenario has the right (but not the obligation) to monitor Customer’s usage of the Service to verify compliance with this Agreement.
- Beenario Ownership
Beenario and/or its suppliers, licensors and service providers own all worldwide right, title and interest in and to the Bugfender Materials, including all worldwide patent rights; software copyright (including those with respect to computer software, software design, software code, software architecture, programming tools, graphical user interfaces, applications programming interfaces, reports, dashboards, templates, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual property and proprietary rights, whether or not subject to registration; and all rights under any license or other arrangement with respect to the foregoing. Except for the limited rights expressly granted herein, neither party transfers to the other party any rights or interest in any Service or Software nor any relative data, and all right, title and interest in and to the same including any intellectual property rights therein, remains the sole property of the respective owner.
“Beenario”,“Bugfender” and related trademarks and service marks (including related graphics and logos) and trade names used on or in the Bugfender Materials are the trademarks or service marks of Beenario, and Customer may not use, or authorize the use of, such trademarks, service marks or trade names without Beenario’s express written permission (whether in connection with any products or services or otherwise). Other trademarks, service marks, and trade names that may appear on or in the Bugfender Materials are the property of their respective owners.
- Customer Content; Responsibilities
6.1. Responsibilities. Customer is responsible for all and any activity carried out in Customer’s account and all information uploaded and otherwise processed in the Service, and must comply with the provision of these Terms, all third-party rights, and all applicable local, state-wide, national or international laws, treaties and regulations related to the use of the Service, including without limitation uses related with data privacy, international communications and transmission of technical or personal data.
6.2. Representations. By submitting or transmitting Customer Content on or through the Site or the Service, Customer acknowledges and represents that: (a) Customer is the owner of Customer Content and/or has the requisite rights to submit and distribute Customer Content in connection with the Service and to grant the licenses set forth in this Agreement; (b) Customer Content does not infringe or misappropriate any intellectual property or proprietary right of any third party or violate any applicable laws, rules or regulations; and (c) any Customer Content provided to Beenario in connection with Customer’s registration for, or use of, the Service is and shall remain true, accurate, and complete.
6.3. License to Customer Content. By submitting or posting Customer Content on areas of the Site or the Service, Customer grants Beenario a worldwide, royalty free, non-exclusive license to access and use such Content on the Site or the Service for the purpose of providing the Service to Customer, responding to Customer’s or Users’ request for technical assistance with respect to the Service or in connection with customer support matters.
6.4. Responsibility for Customer Content. Customer is the owner and/or controller of all of Customer Content that Customer transmits to or uses in connection with the Service. Customer is solely responsible for all Customer Content, including without limitation, for: (a) the accuracy, quality and legal use of Customer Content and the means by which Customer acquired Customer Content (including, without limitation, Customer Data), and (b) taking steps to maintain appropriate security, protection, and backup of Customer Content (which may include the use of encryption technology to protect Customer Content from unauthorized access), and routine archiving of Customer Content. By submitting, transmitting or otherwise making Customer Content available to Beenario and/or others, Customer acknowledges and agrees that: (i) Customer will evaluate and bear all risks associated with Customer Content; (ii) under no circumstances will Beenario be liable in any way for Customer Content, including, but not limited to, any loss or damage, any errors or omissions, or any unauthorized access or use; and (iii) Customer (and not Beenario) is responsible for securing and protecting the confidentiality of Customer Content
6.5. No Personal or Sensitive Data. Customer agrees not to transmit any personal information to the Site or the Service, as personal information may be defined by applicable law due to the data type, use or location, except in connection with registering and establishing an account with Beenario. Customer acknowledges that Beenario may use third-party service providers in connection with the Service, including without limitation the use of cloud computing service providers, which may transmit, maintain and store Customer Data using third-party computers and equipment in locations around the globe. Customer acknowledges that any data storage functionality associated with the Service is not intended for the storage of sensitive personal data. Customer agrees in particular not to upload or otherwise submit any sensitive personal data in connection with the Service. In particular, Customer agrees not to transmit or store within the Service any (i) protected health information, (ii) financial information, (iii) children’s protected information, or (iv) export-controlled information as provided in Section 19. Customer further agrees that Beenario will have no responsibility or liability with respect to any such sensitive data that is processed, transmitted, disclosed, or stored in connection with the Service. Beenario is not responsible for encryption of Customer Data when stored on the Service. If Customer chooses to make any of its or its End Users’ personally identifiable or other information publicly available on the Site or through the Services, Customer does so at its own risk.
6.6. Beenario’s Right to Remove, Suspend or Terminate. Beenario may remove any Customer Content that is submitted to the Service without notice if it believes that such Customer Content is excessive in size or exceeds storage limits. Further, if Beenario is made aware or believes in good faith that Customer Content or conduct may (a) violate the Agreement, (b) violate any law, regulation, or rights of a third party, (c) pose a security risk to the Service or any users of the Service, or otherwise adversely impact the Service or the systems, or (d) subject Beenario or any third party to liability, Beenario has the right, but not the obligation, to immediately remove or disable access to such Customer Content and/or suspend or terminate Customer’s access to the Service.
- Additional Customer Obligations
Customer will at all times access and use the Bugfender Materials (or any content or other materials obtained from or through the Site or the Services) only in accordance with this Agreement and all applicable laws and regulations. In all circumstances, as a condition to Customer’s access to and use of the Bugfender Materials, Customer agrees that it will not access or use the Bugfender Materials (or any content or other materials accessed through the Bugfender Materials) for any purpose that is unlawful or in any manner which could damage, disable, overburden or impair the operation of the Bugfender Materials (or the networks connected to or used for the Site or the Services) or interfere with any other party’s use of the Bugfender Materials. Beenario may take whatever steps we believe are appropriate, at our sole discretion, to detect and prevent any such activities.
Further, Beenario may take whatever steps we believe are appropriate, at our sole discretion, to enforce or verify compliance with any part of this Agreement (including, without limitation, our right to pursue or cooperate with any legal process relating to Customer’s use of the Bugfender Materials or any third party claim that Customer’s use of the Bugfender Materials is unlawful or infringes such third party’s rights). If Customer fails to comply with any of the terms and conditions of this Agreement, Customer’s right to use the Bugfender Materials automatically terminates. Beenario reserves the right to deny Customer’s access to and use of the Bugfender Materials if Customer fails to comply with such terms and conditions or if Customer is the subject of complaints by others.
- Collection of Information; Privacy.
8.2. Notices to Customer. Beenario provides Customer with notices regarding the Service, including changes to this Agreement, by email or by postings on Beenario’s website and/or the Site. Notices that are provided by posting on the Site will be effective three (3) days after posting. Notices that are provided by email will be effective when Beenario sends the email, unless otherwise noted in that email. Customer will be deemed to have received any email sent to the email address then associated with Customer’s account when Beenario sends the email, whether or not Customer actually receives the email.
- Fees; Payment
9.1. Payment. Customer agrees to pay all fees and charges specified in the Order Document. Subscription licenses to the Service and related fees incurred are non-cancelable and non-refundable. Overdue charges will accrue interest monthly at the rate of 40€ fee plus interest for late payments of commercial transactions in accordance with European directive 2011/7/EU. Charges must be paid in advance, monthly, annually or in accordance with any different billing periods stated and agreed in the Order Document. If any payment is not made when due, we may in our sole discretion suspend or terminate your access to and use of the Bugfender Materials. All fees and charges quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. Customer is responsible for paying any taxes assessed based on Customer’s purchases under the Agreement. Beenario will notify you in advance (at least 30 days in advance), if we change the price of your license or subscription. If there is a specific term and price for your license or subscription already in effect, that price will remain in force for that term. After the term expires and is renewed, your use of the product or service will be charged at the then-current updated price. If you don’t agree to these changes, you must cancel and stop using the product or service by contacting Beenario’s customer support no later than ten (10) business days prior to the conclusion of your current payment term. If you cancel, your license or subscription terminates at the end of your current term.
9.2. Payment means.
- For specials plans or annual invoicing, the following means of payment are available:
- Bank transfer
- Direct debit charge
- For general payments:
- Credit or debit card (via Stripe payment gateway)
Payment data submitted through these channels is processed by the payment service providers, and not by Bugfender.
In the event that Customer provides any Feedback to Beenario (including through the Site or the Services), Customer hereby grants to Beenario a perpetual, irrevocable, world-wide, royalty free, fully paid-up, unrestricted right and license to use, make, have made, offer for sale, sell, copy, distribute (through multiple tiers of distribution), publicly perform or display, import, export, transmit, create derivative works of, and otherwise exploit such Feedback as part of or in connection with any Beenario product, service, technology, content, material, specification or documentation, in any manner Beenario deems fit. Beenario, in its sole discretion, may or may not respond to Customer’s Feedback or promise to address all of Customer’s Feedback in the development of future features or functionalities of the Bugfender Materials or any related or subsequent versions of the Bugfender Materials.
- Third Party Content
The Site and the Services may contain links to other websites, apps or content operated or provided by third parties. Such web sites, apps and content are not under the control of Beenario. Beenario does not review, approve, monitor, endorse, warrant, or make any representations with respect to the third-party websites, apps or content and is not responsible for such websites, apps and content or any links contained in any third-party website, app or content. Further, Beenario is not responsible for any content or materials posted on the Site or through the Service by you or our other customers or users of the Site. This shall be without prejudice to the obligations to remove or prevent access to the third-parties’ information, links or illegal content once Beenario becomes aware of it under general legislation.
Confidential Information of a party includes prices, business plans, customer data, financial data and any other information, in any form or medium, that the party designates as confidential or which a reasonable party would understand to be confidential under the circumstances. Confidential Information does not include information that: (i) is known to the receiving party prior to its receipt from the disclosing party by means that are not in violation hereof; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes known and generally available to the public or otherwise ceases to be confidential, except through a breach of this agreement by the receiving party; (iv) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party, or (v) is required to be disclosed by subpoena, law, regulation, or court order. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this agreement, nor disclose to any third party (except as required by law or to such party’s attorneys, accountants and other advisers as reasonably necessary), any Confidential Information of the other party. Each party will take reasonable precautions to protect the confidentiality of the Confidential Information of the other party that are at least as stringent as it takes to protect its own Confidential Information.
- Warranty Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEENARIO AND ITS AFFILIATES, AND THEIR SUPPLIERS, LICENSORS AND SERVICE PROVIDERS, PROVIDE THE SITE, SERVICES AND SOFTWARE AS-IS AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. BEENARIO DOES NOT WARRANT THAT THE SITE, SERVICES OR SOFTWARE WILL BE ERROR-FREE, NOR DOES BEENARIO PROVIDE ANY WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF THE SITE, SERVICES OR SOFTWARE, OR THE INFORMATION PROVIDED ON THE SITE OR BY THE SERVICES. YOU AGREE THAT, AS BETWEEN YOU AND BEENARIO, YOU ARE RESPONSIBLE FOR THE ACCURACY AND QUALITY OF THE DATA PROVIDED BY YOU OR YOUR END USERS TO BEENARIO AND ITS AFFILIATES AND THEIR SUPPLIERS, LICENSORS AND SERVICE PROVIDERS. Because this disclaimer of warranty may not be valid in some states or jurisdictions, the above disclaimer may not apply to you.
The Bugfender Materials, or any feature or part thereof, may not be available for use in all jurisdictions, and Beenario makes no representation that the Bugfender Materials, or any feature or part thereof is appropriate or available for use in any particular jurisdiction. To the extent Customer chooses to access and use the Bugfender Materials, Customer does so at Customer’s own initiative and at Customer’s own risk, and Customer is responsible for complying with any applicable laws, rules, and regulations.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEENARIO AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE “BEENARIO ENTITIES”) SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT, DATA, SECURITY OF DATA, OR LOSS OF OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
Beenario is not liable for any Customer Data, Customer use of the Service, third party services contracted by Customer, or any other services downtime or any act made through the Services that breach third party rights or applicable law. Nothing herein constitutes a waiver of any unpaid or past due amounts owed by Customer for purchase commitments and/or Services rendered. Without limiting the foregoing, unless otherwise stated, Beenario’s liability under this agreement shall be limited to the direct damages and shall not exceed an amount equal to payments made by Customer to Beenario during thirty (30) days prior to the claim.
Some jurisdictions do not allow the exclusion or limitation of certain damages. To the extent such a law applies to Customer, some or all of the exclusions or limitations set forth above may not apply to Customer, and Customer may have additional rights. Beenario is acting on behalf of its Affiliates and their licensors, suppliers and service providers for the purpose of disclaiming, excluding and limiting obligations, warranties and liabilities, but in no other respects and for no other purposes.
- Support; Modification of Site or Services
Subject to the terms of this Agreement, Beenario shall use commercially reasonable efforts to provide business hours support of the Bugfender Materials, on an 8/5 basis (from Monday to Friday, 8am to 6pm (UTC)) via mail and chat for Bugfender users and for system administration. We try to reply to all messages within 24 hours on business days, but we do not offer a guarantee. We have priority support available for purchase.
Beenario reserves the right at any time and from time to time to modify the Bugfender Materials or discontinue, temporarily or permanently, the Site or any of the Services (or any part thereof). Beenario will not be liable to Customer or any other user or other third party for any such modification or discontinuance. If you do not agree to the modification or discontinuance and the modification or discontinuance is material, you may terminate this Agreement by providing us with notice of termination within thirty (30) days after the earlier of (i) the modification or discontinuance or (ii) our notice to you of the modification or discontinuance. On providing notice of termination, you will cease all access to and use of the Bugfender Materials and we will have no obligation to provide any further Bugfender Materials to you. If Beenario permanently discontinues the Services, and there remains a period for which you have paid fees in advance for access to and use of the Services, we will provide you with a refund or credit (for use with other products or services of Beenario or its affiliates) of a pro rata portion of the fees you paid in advance but unused.
- Term and Termination; Suspension
16.1. Term . The Agreement will be effective from the earlier of (a) the date this Agreement is accepted by Customer, or (b) the date Customer first accesses or uses the Service (“Effective Date”) and will expire automatically upon the end of the Subscription Term, unless earlier terminated pursuant to this Section 16. If Customer has elected for auto-renewal plan, the Subscription Term and the Agreement will automatically renew for the subscription term upon expiration of the initial or then-current term, unless one party notifies the other of its intent not to renew at least thirty (30) days in advance of the expiration of the Subscription Term or then-current renewal period.
16.2. Termination or Suspension for Cause. Either party may terminate this Agreement for cause, upon thirty (30) days’ advance notice to the other party if there is any breach of this Agreement by the other party, unless the defaulting party has cured the breach within the thirty (30) day notice period. Further, Beenario may terminate Customer’s account and/or suspend or terminate Customer’s access to and use of the Bugfender Materials and/or cease providing all or any part of the Site or Services at any time if Beenario determines that such action is appropriate—for example, to (i) prevent errors or any other harm with respect to the Bugfender Materials; (ii) mitigate or otherwise limit our damages or our liability; or (iii) respond to applicable law or regulation or any court or governing agency order.
16.3. Termination for Convenience. Customer may terminate Customer’s account and/or stop using the Bugfender Materials at any time and for any or no reason by written notice to Beenario or by any other means, which Beenario may make available (e.g., through the Site). Upon such termination, Customer will not be entitled to receive (and Beenario has no obligation to provide) any refund of or credit for any fees paid prior to such termination.
16.4. Effect of Termination . Upon any termination of this Agreement: (i) Beenario may deactivate, delete and/or bar access to Customer’s account and any files associated with Customer’s account; (ii) Customer will immediately cease access to and use of the Bugfender Materials; (iii) all license and other rights granted to Customer under this Agreement will immediately terminate; (iv) Customer will promptly return or, if instructed by Beenario, destroy all copies of Bugfender Materials in its possession or control; and (v) except as expressly set forth in Sections 15 and 17.1 of this Agreement, Customer will not be entitled to receive (and Beenario has no obligation to provide) any refund of or credit for any fees paid prior to such termination. Upon expiration or termination, Beenario will have the right to immediately delete, without notice, Customer Content and all backups thereof, and Beenario will not be liable for any loss or damage, which may be incurred by Customer or any third parties as a result of such deletion.
16.5. Survival. The following sections shall survive the termination or expiration of the Agreement: 4, 5, 10, 12, 13, 14, 16.4 and 17-19.
17.1. Indemnification by Beenario. Beenario will defend Customer, and pay all damages (including attorneys’ fees and costs) finally awarded against Customer, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against Customer by a third party (including those brought by the government) alleging that the Software infringes or misappropriates such third party’s United States patent, copyright, trademark or trade secret (a “Customer Claim”), provided that Customer: (i) provides Beenario with prompt written notice of the Customer Claim, (ii) gives Beenario sole control of the defense and settlement of the Customer Claim (except that Beenario may not settle any Customer Claim that requires any action or forbearance on Customer’s part without Customer’s prior consent, which Customer will not unreasonably withhold or delay), and (iii) gives Beenario all reasonable assistance, at Beenario’s expense. Beenario will have no obligation under the foregoing provision to the extent a Customer Claim arises from Customer breach of the Agreement, Customer Content or the combination of the Software with: (a) Customer Content, (b) any software other than the Software, or (c) any hardware or equipment. Beenario may in its sole discretion and at no cost to Customer: (1) modify the Software so that it no longer infringes or misappropriates a third-party right, (2) obtain a license for Customer’s continued use of the Software, in accordance with the Agreement, or (3) terminate this Agreement and refund Customer any prepaid fees covering the unexpired Subscription Term.
17.2. Indemnification by Customer. Customer shall defend, and pay all damages (including attorneys’ fees and costs) finally awarded against Beenario, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against a Beenario Entity by a third party (including those brought by the government) that: (i) alleges that Customer Data, Customer Content, Customer Apps or Customer’s use of the Service infringes or misappropriates such third party’s patent, copyright, trademark or trade secret, or violates another right of a third party, (ii) arises out of the activities of Users and End Users, (iii) Customer Data, Customer Content, Customer Apps or Customer use of the Service violates applicable law or regulation, or (iv) arises out of a dispute between Customer and another customer of Beenario (each, a “Beenario Claim”), provided that Beenario: (a) gives Customer prompt written notice of the Beenario Claim, (b) gives Customer sole control of the defense and settlement of the Beenario Claim except that Customer may not settle any Beenario Claim that requires any action or forbearance on Beenario’s part without Beenario’s prior consent (that Beenario will not unreasonably withhold or delay), and (c) Beenario gives Customer all reasonable assistance, at Customer expense.
- General Terms
18.1. Choice of Law and Disputes. This Agreement shall be governed by and construed in accordance with the Spanish law, without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the Courts of Barcelona (Spain), and the parties hereby consent to personal jurisdiction and venue therein. Beenario may seek injunctive or other relief in any court of competent jurisdiction for any actual or alleged infringement of Beenario’s its Affiliates,’ or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
18.2. No Waiver. Unless otherwise provided herein, all rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions.
18.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, invalid or unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives and intent of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the remainder of the Agreement will remain in full force and effect.
18.4. Independent Contractors; No Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The third party licensors of Bugfender Materials are express third-party beneficiaries of the Agreement. There are no other third-party beneficiaries of this Agreement.
18.5. Force Majeure. Beenario and its officers, directors, employees, agents, partners and licensors will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Beenario’s or its officers’, directors’, employees’, agents’, partners’, or licensors’ reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
18.6. Notices. All notices required or permitted under this Agreement will be by email. All notices to Beenario will be sent to [email protected] (or to such other email address as we may notice to you from time to time). All notices to you will be sent to the email address you provide to Beenario as part of the Registration Data (or to such other email address as you may notify to us from time to time).
18.7. Assignment. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise, without the prior written consent by Beenario.
18.8. Modification. Beenario reserves the right to update or otherwise make changes to this Agreement from time to time on at least thirty (30) days’ notice, which notice we will provide to you by any reasonable means, including without limitation by posting the revised version of this Agreement on the Site. If you object to the revised version of this Agreement, you will, within such thirty (30) day period, notify us of your objection and, if you so notify us, the revised version will not apply to you. Instead, effective at the end of such thirty (30) day period, your existing Agreement will terminate; you will cease all access to and use of the Bugfender Materials; and we will have no obligation to provide any further Bugfender Materials to you. If you do not notify us of your objection during the thirty (30) day period, your continued access to and use of the Bugfender Materials after the effective date of such revised version of this Agreement will be deemed your acceptance of such revised version; however, changes to this Agreement will not apply to any dispute between you and us based on a claim filed before the effective date of the changes. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” or similar legend at the top of this Agreement.
19.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
19.2. “Content” means materials, information, software (including machine images), data, text, audio, music, sound, video, images, photographs, graphics, messages, files, attachments, or other content.
19.3. “Customer App” means a software application created by Customer that is to be run on a mobile platform (i.e., a hardware/software environment for laptops, tablets, smartphones and other portable devices, including Android, iOS, Windows Phone (WP) and such further platforms as may be supported by Beenario from time to time) and that includes the Bugfender SDK.
19.4. “Customer Content” means Content that Customer transmitted, or that was transmitted on Customer behalf, to or from the Service, or that Customer stores, or displays or within the Service, or that is otherwise used or processed in connection with Customer’s account. Customer Content includes Customer Data.
19.5. “Customer Data” means electronic data and information submitted by or for Customer to the Service or that Customer collects and processes using the Service, which may include its End User data.
19.6. “End User” means Customer’s end user customer who receives a Customer App for use on his or her mobile device.
19.7. “End User Requirements” has the meaning set forth in Section 3.2.
19.8. “Effective Date” has the meaning set forth in Section 16.1.
19.9. “Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to Beenario in connection with Customer’s use of the Service. Feedback does not include any data, results or output created or generated by Customer using the Service, unless submitted or communicated by Customer to Beenario.
19.10. “Order Document” means Customer’s purchase order or any equivalent ordering document (whether displayed online or on paper) that Beenario has accepted and confirmed, specifying the following: (a) the Services to be provided hereunder, (b) the capacity that Customer is purchasing, and (c) pricing.
19.11. “Bugfender Materials” means the Site, Service and Software.
19.12. “Bugfender SDK” means the Bugfender Software Developer Kit that Beenario makes available to you, including without limitation through the Site.
19.13. “Service” means the cloud-based service called “Bugfender” provided and maintained by Beenario for monitoring and analyzing the usage and performance of a Customer App.
19.14. “Site” means app.bugfender.com and any successor or related site designated by Beenario from which the Services are provided.
19.15. “Software” means the Bugfender SDK and any other software, add-on, application or program created, owned or licensed by Beenario that Beenario makes available for download for use in connection with the Service or for the purposes of enabling use of the Service. Software also includes any related Documentation.
19.16. “Subscription Term” means the duration of Customer’s subscription to the Service under this Agreement that begins on the Effective Date and ends one (1) month or one (1) year thereafter (depending on Customer’s election) or any other period as specified on the Order Document.
19.17. “User” means “Customer” if an individual, or if an entity, Customer’s individual employee, consultant, contractor, agent or representative whom Customer authorizes to use the Service and whom Customer (or Beenario, at Customer’s request) have supplied a user identification and password.