Terms of Service – BUGSEE, INC.
Effective Date: April 1st, 2016
This Terms of Service (the “Agreement”, “Terms”) is a contract between you (the “Customer”) and Bugsee, Inc. (“Company”, “us”, “our”, “we” and bugsee.com). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. By signing up for Bugsee, Inc. services, accessing or using our services, you are agreeing to these terms.
Subject to the terms and conditions of this Agreement, the Service is solely for Customer’s use in connection with its customer communication activities. Bugsee, Inc. may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or content. Bugsee, Inc. may also impose limits on certain features and services or restrict Customer’s access to parts or all of the Services without notice or liability. Customer shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Service. Customer shall be responsible for ensuring that such equipment or ancillary services are compatible with the Service.
- Registration & Security
As a condition to using certain products and services of the Service, Customer is required to register with Bugsee, Inc. and select a password and Customer ID. Customer shall provide Bugsee, Inc. with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Customer’s account. Bugsee, Inc. reserves the right to refuse registration of, or cancel an Bugsee, Inc. Customer account at its discretion. Customer shall be responsible for maintaining the confidentiality of Customer’s Bugsee, Inc. password and other account information.
- Payment Term & Fees
Customer shall pay Fees to Bugsee, Inc. as follows.
If User signed up for a paid plan, User will pay Bugsee, Inc. the Subscription Fee for the Service as set forth in the Pricing Guide (“Fees”). Unless otherwise agreed to by the parties in writing, all Fees are payable upon demand by Bugsee, Inc.-accepted credit card. Fees for each subscription period will be billed in advance. There is a seven (7) business day grace period (“Grace Period”). Thereafter, Customer may be restricted at any time from the Service, with or without notice, at Bugsee, Inc.’s sole discretion. Subscription fees are billed on a recurring basis and Subscriber hereby authorizes Bugsee, Inc. to charge Subscriber’s credit card for such purposes. Bugsee, Inc. reserves the right to change the Fees at any time (and such changes will apply on a going forward basis). Unpaid Fees are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Subscriber shall be responsible for all taxes associated with Service other than taxes based on Bugsee, Inc.’s net income.
If Subscriber believes that Bugsee, Inc. has billed Subscriber incorrectly, Subscriber must notify Bugsee, Inc. thereof (in writing) no later than sixty (60) days after the date on which Bugsee, Inc. has charged Subscriber, otherwise the amount charged shall be conclusively deemed correct by the parties.
All Fees paid are non-refundable, except in the event (i) of overpayment, but subject to the preceding sentence, (ii) if Subscriber terminates this Agreement for Bugsee, Inc.’s uncured breach, or (iii) Bugsee, Inc. terminates without cause pursuant to Section 7.
- SDK Product and Maintenance
Bugsee, Inc. provides the Bugsee, Inc. SDK in an “as is”. The Bugsee, Inc. SDK, and any updates, is deemed accepted by Customer. No warranties are made to the SDK (see Representation, Warranties and Indemnifications). Bugsee, Inc. is not obligated to provide maintenance, technical support or updates to Customer for the SDK. Any maintenance or updates provided by Bugsee, Inc. shall be covered by this Agreement. Customer shall bear all costs of integrating the Bugsee, Inc. SDK into the Customer Application, including but not limited to, software design, software development, application debugging, application testing and network connectivity.
User agrees that all content and materials (collectively, “Content”) delivered by Bugsee, Inc. via the Service, or otherwise made available by Bugsee, Inc. at the Site, are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws.
Except as expressly authorized by Bugsee, Inc. in writing, User agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such Content. However, User may print or download a reasonable number of copies of the Content for User’s own informational purposes; provided, that User retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any Content or design elements on the Site for any other purpose is strictly prohibited without the express prior written permission of Bugsee, Inc..
Customer shall ensure the Bugsee, Inc. copyright notice and EULA is not removed from the Bugsee, Inc. SDK and that both are included in each module that the Bugsee, Inc. SDK resides.
In no event shall Bugsee, Inc., Inc. Be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this software, even if advised of the possibility of such damage.
- Representations, Warranties and Indemnifications
(a) Disclaimer of warranties. To the maximum extent permitted by applicable law, Bugsee, Inc. provides the SDK and any support services related to the SDK (“support services”) as is and with all faults, and hereby disclaim all warranties and conditions, either expressed, implied or statutory, including, but not limited to, any implied warranties or conditions of merchantability, of fitness for a particular purpose, of lack of viruses, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort, all with regard to the SDK, and the provision of or failure to provide support services. Also, there is no warranty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement, with regard to the SDK. The entire risk as to the quality of or arising out of use or performance of the SDK and support services, if any, remains with customer.
(b) Exclusion of incidental, consequential and certain other damages. To the maximum extent permitted by applicable law, in no event shall Bugsee, Inc. be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the SDK, the provision of or failure to provide support services, or otherwise under or in connection with any provision of this agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Bugsee, Inc., and even if Bugsee, Inc. has been advised of the possibility of such damages.
- Limitation of liability
In no event shall Bugsee, Inc., its officers, directors, employees, agents, vendors or suppliers be liable under contract, tort, strict liability, negligence or any other legal theory with respect to the service: (i) for any lost profits or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, even if foreseeable, (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination). In addition, Bugsee, Inc. shall not be liable for any loss or liability resulting, directly or indirectly, from user’s inability to access or otherwise use the site (including, without limitation, any delays or interruptions due to electronic or mechanical equipment failures, denial of service attacks, date data processing failures, telecommunications or internet problems or utility failures). The foregoing limitations shall not apply to the extent prohibited by applicable law.
(a) Either Party may terminate a Customer’s Subscription if: (i) the other materially breaches any term under Terms of Service and fails to cure such breach within thirty (30) days after receipt of written notice; (ii) the other ceases to conduct business; or (iii) the other files for bankruptcy, reorganization or insolvency, or if a similar proceeding for the benefit of its creditors is commenced.
(b) Following the expiration, cancellation or termination of this Agreement, for any reason, the rights and license granted herein to Customer shall immediately and automatically terminate and Customer shall no longer have the right to use or distribute the Bugsee, Inc. SDK in any manner, plus, network access to the Service will be stopped and the API-Key will be revoked. Customer shall not distribute any Customer Applications that contain the Bugsee, Inc. SDK thereafter, but Bugsee, Inc. agrees the Customer Applications containing the Bugsee, Inc. SDK already distributed to end-users shall not be affected.
(c) Notwithstanding anything to the contrary above, any termination by Customer under the terms herein shall not relieve Customer of its obligation to pay any and all back, current and future fees that are due under the terms of this Agreement.
All content included by Bugsee, Inc. on the Site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Bugsee, Inc. or its content suppliers and protected by United States and international copyright laws. The compilation of all content on the Site is the exclusive property of Bugsee, Inc. and protected by U.S. and international copyright laws. All software used on (or provided through) the Site is the property of Bugsee, Inc. or its software suppliers and protected by United States and international copyright laws.
Bugsee, Inc. respects the intellectual property of others and asks that users of our Site do the same. In connection with our Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent
5205 Prospect Rd STE 135-130
San Jose, California 95129
(a) Independent Contractor. Bugsee, Inc. operates an independent business apart from Customer. Nothing in this Agreement creates a partnership, employer-employee relationship, franchisee-franchisor, or a joint venture between the Parties. Each Party is solely responsible for the control and management of its business operations, for obtaining and maintaining all applicable business licenses and insurance, and for the timely payment of all income, payroll, and employment-related taxes, including without limitation all unemployment, workers compensation, income tax withholding, and any other taxes of any nature whatsoever related to its business, unless otherwise specified in Section 4 (“Payments”).
(b) Public Announcements. Customer acknowledges that Bugsee, Inc. can make public announcements regarding the status of the business relationship and include logos within presentations, the Bugsee, Inc.’s website or in meetings and interviews regarding the Bugsee, Inc.’s business.
(c) Assignment. Each Party’s obligations hereunder may not be assigned, delegated, sublicensed or otherwise transferred without the other Party’s prior written consent, unless its to any affiliate or to any surviving party as part of a corporate reorganization, consolidation, merger, or sale. In the event of such assignment or attempted assignment by either party, the assigning party shall notify the other party prior to the effective date of assignment, and the other party shall have the right to terminate this Agreement immediately for a period of thirty (30) days after its receipt of notice. Subject to the limitations herein, this Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
(d) Force Majeure. If either Party’s performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, flood, fire, explosion or other act of nature or any other matter not within such Party’s reasonable control, then the date for performance shall be extended by the time of such delay; provided, however, that the Party subjected thereto shall pursue with reasonable diligence the avoidance or removal of such delay if reasonably feasible.
(e) Gender and Number. Wherever the context requires, the gender of all words used in this Agreement shall include the masculine, feminine, and neuter, and the number of all words shall include the singular and the plural.
(f) Costs and Expenses. Except as otherwise provided for in this Agreement, each Party shall be responsible for and will bear all costs and expenses incurred by it in connection with the performance of its obligations under this Agreement.
(g) Currency. All currencies specified herein are in US dollars. When any fees to Bugsee, Inc. are calculated based on a currency other than U.S. currency, the payment to Bugsee, Inc. must be equal to that of the US dollar amount of the fees listed in the Service Agreement, and Customer shall bear all currency conversion fees, wire transfer fees or any other fees involved with payment.
(h) Interpretation. The headings and numbering shall not be considered or given effect in construing this Agreement. This Agreement shall be construed without regard to the party responsible for the preparation of the same, and shall be deemed to have been prepared jointly by the Parties. Any ambiguity or uncertainty existing herein shall not be interpreted against either Party, but according to the application of other rules of contract interpretation.
(i) Severability. In the event that any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect and the affected provision shall be modified in a manner which comes closest to the intention of the parties at the time the original provision was agreed upon.
(j) Survival. The following sections shall survive termination or expiration of this Agreement: 3, 5, 7 and 8 in addition to any other provisions which by their terms or sense are intended to survive.
Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 5205 Prospect Rd STE 135-130, San Jose, California 95129. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California, for such purpose
Export. The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
Disclosures. Company is located at the address in Section 10.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Electronic Communications. The communications between you and Company use electronic means, whether you use the Site or send us emails, or whether Company posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
Copyright/Trademark Information. Copyright © 2016 Bugsee, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
5205 Prospect Rd STE 135-130
San Jose, California 95129