Last updated: November 30, 2017
These Bugfender Terms of Service between you and Beenario GmbH, a German limited corporation (“Beenario”), 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 Service. By accessing or using the Service in any manner, you are agreeing to the Agreement.
In this Agreement, “Beenario,” “we,” “us,” and “our” refers to Beenario GmbH, a German limited corporation, and “Customer”, “you” and “your” refers to the entity on whose behalf you are entering into this Agreement or, if there is no such entity, you as an individual. Section 19 contains definitions of other terms that are capitalized in this Agreement.
You acknowledge agreement to the terms of an electronic copy of this Agreement by creating an account with us or otherwise using the Site or any of the Services, or by downloading, installing, accessing, or otherwise copying or using all or any portion of the Software, (i) you accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by this Agreement or, if there is no such entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) and yourself. 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.
IF YOU DO NOT AGREE TO THE TERMS CONTAINED IN THIS AGREEMENT, OR IF YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH ENTITY OR YOURSELF AS AN INDIVIDUAL (IF THERE IS NO SUCH ENTITY), DO NOT SELECT THE “I ACCEPT” BUTTON OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT, DO NOT USE ANY OF THE BUGFENDER MATERIALS, AND DO NOT DOWNLOAD, INSTALL, ACCESS OR OTHERWISE COPY OR USE ALL OR ANY PORTION OF THE SOFTWARE. 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) ONLY IN ACCORDANCE WITH THIS AGREEMENT.
Customer may be required to register and establish an account in order to access and use Bugfender Materials. If so, Customer must: (i) provide true, accurate, current and complete information on the applicable registration form (collectively, the “Registration Data”) and (ii) 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. Customer 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. Customer must provide any other information requested by Beenario in order to complete the registration process. Customer will maintain (and are responsible for maintaining) the confidentiality of the user name, password and other Registration Data associated with its account. Customer may not share Customer passwords or access codes with a third party. 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. Beenario will not be liable for any loss or damage arising from Customer’s failure to comply with this Section, including any loss or damage arising from the failure to (a) maintain the confidentiality of a user name, password or other Registration Data, (b) immediately notify Beenario of any unauthorized access to or use of Customer’s password or account or any other breach of security, and (c) ensure that Customer exits from its account at the end of each session. 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.
2.1. Provision of Service. Beenario will make the Service available to you during the Subscription Term identified on the Order Document. 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 would apply: 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 non-exclusive, limited, non-transferable, revocable, royalty-free license (without the right to sublicense except as expressly permitted by this Section) 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 require the applicable End User to enter into a legally binding license agreement with Customer 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. Open Source Components. The Software includes open source components, which are licensed for use and distribution by Beenario under applicable open source licenses. Use of these open source components is governed by and subject to the terms and conditions of the applicable open source licenses.
4. License Restrictions
Except as expressly permitted in this Agreement, Customer may not, and will not permit any third party to: (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). Beenario has the right (but not the obligation) to monitor Customer’s usage of the Service to verify compliance with this Agreement.
5. 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; copyright rights (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 as expressly stated in this Agreement, Beenario does not grant Customer any license or other rights under or with respect to any intellectual property rights in the Bugfender Materials; all right, title, and interest in and to the Bugfender Materials not expressly granted in this Agreement remain with Beenario and/or its suppliers, licensors and service providers; and no license or other rights with respect to the Bugfender Materials or related intellectual property rights shall be implied. “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.
6. Customer Content; Responsibilities
6.1. 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.
6.2. 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.
6.3. 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
6.4. 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 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. In particular, Customer agrees not to cause, or otherwise request that, Beenario create, receive, maintain or transmit protected health information for or on behalf of Customer in connection with the Service or in any manner that would make Beenario a Business Associate (as defined at 45 C.F.R. § 160.103 of HIPAA) to Customer, and Beenario specifically disclaims any responsibility or obligation to act as such a Business Associate. 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.
6.5. Security and Protection of Customer Data. Beenario will maintain administrative, physical and technical safeguards to protect the security of Customer Data as described in the Documentation or the Site.
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.
7. 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.
8. Collection of Information; Privacy.
8.2. Notices to Customer and Consent to Electronic Communications. Customer consents to receiving electronic communications and notifications from Beenario in connection with this Agreement and Customer’s use of the Service. Customer agrees that any such communication will satisfy any legal communication requirements, including that such communications be in writing. Beenario may provide Customer with notices regarding the Service, including changes to this Agreement, by email to the email address of Customer’s administrator (and/or other alternate email address associated with Customer account if provided), 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.
9. Fees; 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 the 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.
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.
11. 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 is not responsible for such websites, apps and content or any links contained in any third-party website, app or content. Beenario provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to the third-party websites, apps 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. Any opinions and views expressed are those of the individuals expressing them and do not reflect our opinions and views. Information submitted by others may not be verified or reviewed in any way before it appears on the Site or through the Services. Therefore, we do not warrant the validity or accuracy of any such information. Please use caution and common sense when using the Site or the Services. In no way do we endorse the content or legality of any offers, statements, or promises made by any other parties on or off the Site or as part of or separate from the Services.
12.1. Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have confidentiality obligations to the Receiving Party containing protections no less stringent than those herein.
12.2. Compelled Disclosure of Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
13. Warranty Disclaimer
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 MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT ANY QUIET ENJOYMENT 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.
14. Limitation of Liability
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, EVEN IF BEENARIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE BEENARIO ENTITIES SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY OR DAMAGES ARISING IN CONNECTION WITH OR RESULTING FROM: (I) CUSTOMER USE OR INABILITY TO USE THE SERVICE, INCLUDING AS A RESULT OF ANY: (A) TERMINATION OR SUSPENSION OF CUSTOMER ACCOUNT, OR (B) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS, OR (C) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR GOODS, OR (D) ANY INVESTMENT, EXPENDITURE, OR COMMITMENT BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICE; (II) ANY CHANGES MADE TO THE SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (III) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DELETION OF CUSTOMER CONTENT; (IV) THE DELETION OF, DESTRUCTION, DAMAGE, LOSS, CORRUPTION OF, OR FAILURE TO STORE, SEND OR RECEIVE ANY CUSTOMER CONTENT, TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICE. IN ANY CASE, THE AGGREGATE LIABILITY OF THE BEENARIO ENTITIES UNDER THIS AGREEMENT OR ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT THAT CUSTOMER ACTUALLY PAID BEENARIO UNDER THIS AGREEMENT FOR THE BEENARIO MATERIALS THAT GAVE RISE TO THE CLAIM DURING THE THIRTY (30) DAYS PRECEDING THE EVENT THAT GAVE RISE 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.
15. Support; Modification of Site or Services
Beenario has no obligation to provide maintenance or support of the Bugfender Materials. 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.
16. 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 17-20.
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.
18. General Terms
18.1. Choice of Law and Disputes. This Agreement shall be governed by and construed in accordance with the laws of the Courts of Barcelona (Spain), as if performed wholly within the state and 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. “Confidential Information” means all nonpublic information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as “confidential” or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. Customer Confidential Information shall include Customer Content. Beenario Confidential Information shall include: (i) nonpublic information relating to Beenario or its Affiliates’ or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that Beenario is obligated to keep confidential; and (iii) the nature, content and existence of any discussions or negotiations between Customer and Beenario or our Affiliates. Notwithstanding the foregoing, “Confidential Information” does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
19.3. “Content” means materials, information, software (including machine images), data, text, audio, music, sound, video, images, photographs, graphics, messages, files, attachments, or other content.
19.4. “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.
19.5. “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.
19.6. “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.
19.8. “End User” means Customer’s end user customer who receives a Customer App for use on his or her mobile device.
19.9. “End User Requirements” has the meaning set forth in Section 3.2.
19.10. “Effective Date” has the meaning set forth in Section 16.1.
19.11. “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.
19.12. “MAU” means the number of total monthly active users of the Customer App(s) associated to a Customer account. A monthly active user is defined as a user who has interacted with a given Customer App on a specific device in the last thirty (30) days.
19.13. “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 MAU that Customer is purchasing, and (c) pricing.
19.14. “Bugfender Materials” means the Site, Service and Software.
19.15. “Bugfender SDK” means the Bugfender Software Developer Kit that Beenario makes available to you, including without limitation through the Site.
19.16. “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.
19.17. “Site” means app.bugfender.com and any successor or related site designated by Beenario from which the Services are provided.
19.18. “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.
19.19. “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.
19.20. “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.