Terms of Service – BUGSEE, INC.
Effective Date: May 24, 2018
These Terms of Service (the “Agreement” or “Terms”) are between you (“Customer,” “you” or “your”) and Bugsee, Inc., a Delaware corporation (“Bugsee,” “us,” “our” or “we”). These Terms govern your access to and use of www.bugsee.com (the “Site”) and the Services (as defined below), and describe the services we will provide to you, how we will work together and other aspects of our business relationship.
Our services allow you to collect information about the operation your mobile applications by your customers or other users of your app (“Users”). Our services include the Bugsee Software Development Kit, APIs, and other embedded code (the “Embedded Code”) and related explanatory materials (collectively, the “Bugsee SDK”), Bugsee databases and the other products and services provided on or through our Site or otherwise offered by Bugsee (collectively the “Services”).
Subject to the terms and conditions of this Agreement, you may access and use the Services solely for your internal business purposes. Bugsee may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or content. Bugsee may also impose limits on certain features and Services or restrict your 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 Services. Customer shall be responsible for ensuring that such equipment or ancillary services are compatible with the Service.
As a condition to using certain of the Services, you are required to register with Bugsee. You agree to provide Bugsee 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 reserves the right to refuse registration of, or cancel, a Bugsee Customer account at its discretion.
Customer shall be responsible for maintaining the confidentiality of Customer's Bugsee password and other account information. If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person with access to this Site or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
You agree to Fees (as defined below) to Bugsee as follows:
If you signed up for a paid plan (a “Paid Plan”), you agree to pay Bugsee the applicable Subscription Fee for the Services as set forth in the Pricing Guide, found at www.bugsee.com/pricing/ (“Fees”).
You authorize us (or a billing agent acting on our behalf) to charge you the applicable Fees using your selected payment method. We'll automatically bill you in advance from the date you sign up for, or convert to, a Paid Plan, and on each subscription renewal, until cancellation.
The Fees are the net amount that we must receive exclusive of any taxes and, in addition to the Fees, you shall be responsible for promptly paying (to us or the appropriate taxing authority) all taxes, duties and tariffs, including without limitation, sales, excise, value added, use, withholding, import/export and similar charges related to this Agreement.
Once you have purchased a Paid Plan, we will automatically charge the current applicable Fees for the next subscription period to your selected payment method at the end of each subscription period, unless you notify us in writing that you want to terminate your subscription and cease using the Services as set forth in Section 12 (Termination). In the event any payment is declined, Customer will have seven (7) business days to make such payment, after which Customer may be restricted from accessing or using the Services, at any time, with or without notice, at Bugsee's sole discretion.
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.
Bugsee may provide you with limited access to the Services on a trial basis at no charge (“LITE Plan”). We reserve the right to modify, cancel and/or limit the LITE Plan without notice at any time. Please note that under the LITE Plan, data retention is limited to three (3) days. Upon termination of your LITE Plan, you may lose access to all data stored on the Service, and any interfaces to third party services that we provide.
Overages. We reserve the right to charge any applicable overage Fees if you exceed the maximum number of test devices or live devices allowed by your plan in any given month. For the next month, you may be automatically charged for such higher usage, or we may require that you upgrade to a new plan (which may require you to enter into a signed agreement with Bugsee). If you are on a monthly billing cycle, you will be charged for your increased usage starting with the next month. If you are not billed monthly, upon the next applicable month after the upgrade, you will be charged for the increased price of the usage.
Upgrades. If you upgrade your Paid Plan, you will immediately be charged the then-current rate for the new Paid Plan (and any auto-renewals thereof), as provided on our Site.
Downgrades. If you desire to downgrade your plan level, you must provide Bugsee with written notice at least thirty (30) days prior to the end of your current subscription period. The plan downgrade will take effect the first billing cycle of your next subscription period. Please note that you will not receive any refunds for payments made on your current billing cycle (or for your current subscription period). Downgrading your plan may cause the loss of account content, features, or capacity. Bugsee disclaims liability for any such loss.
Additional Fees. We may revise Fees at any time, or impose additional fees or charges. If you are on a Paid Plan, we will do this by providing you with at least thirty (30) days' notice prior to the next charge. Provided that if you upgrade or downgrade your plan, you will be charged Fees at the then-current rates. Unless otherwise expressly stated in writing, any discounts applied to a previous subscription period do not apply to a renewed subscription period, including to any automatic renewals.
You agree not to, or to allow others to:
Customer shall use no less than industry standard security measures with respect to its access and use of the Services. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, server, software, operating system, networking, communication services, web and hosted services and platforms, and any platforms, networks, services and/or websites where it distributes and runs its services and applications, including but not limited to, Facebook, Android, Google Play, Blackberry and iOS/App Store and all third party products and service providers that Customer requests Bugsee to supply with data, or from whom Customer provides Bugsee with data (collectively, “Third Party Platforms”).
Customer shall be responsible for compliance its own and all terms of service and privacy policies with respect to the Third Party Platforms. Without limiting the foregoing, Customer agrees to comply with third party terms of service and privacy policies for all third party analytics providers and other services that Bugsee provides with data at your request, or that you request to provide Bugsee with data. Bugsee is not responsible for any act or omissions of any Third Party Platform. Customer shall also be responsible for maintaining the security of the Third Party Platforms, its account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the account or the Third Party Platforms with or without Customer's knowledge or consent.
You agree to:
The Bugsee SDK allows you to configure which data (screens, fields, etc.) of your mobile application will be visible and recorded by our Service. You must use the SDK to clearly indicate all screens/fields on your app that may contain Personal Information, and configure your usage of our Services so that any such data is be hidden or completely obscured and not transferred to us.
Despite these restrictions, if we receive such Personal Information of Users, you represent that you have provided and collected all required notices and consents in connection with the collection and use of such information including having received the User's explicit prior consent for the transfer of the information to the Bugsee. Without implying the assumption of any liability on our part, Bugsee shall be entitled to block your access to our Services and/or the Site and/or temporarily or permanently limit, suspend or terminate your Account as a means to prevent further transfer of Personal Information.
“Confidential Information” means: (a) the Services; and (b) any Bugsee business or technical information that is disclosed to you in connection with this Agreement, including without limitation any information relating to Bugsee's plans, designs, costs, prices, finances, marketing plans, business opportunities, personnel or research and development. You will maintain all Confidential Information in strict confidence and will not disclose Confidential Information to any third party. You will not use Confidential Information, except as necessary for your performance of this Agreement.
You agree that any material breach of this section will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of this section in additional to any other relief to which Bugsee may be entitled.
Our Services enable you to collect data (“Collected Data”) about Customer Applications on which you have integrated our Services. We enable you to specify the Collected Data that you collect, and, at your direction, to pass that data into the Services and to third party applications and services, and from one application or service to another. Bugsee may also store Collected Data in connection with the Service.
As between Customer and Bugsee, Customer shall retain all right, title and interest in and to the Collected Data.
Customer acknowledges that Bugsee collects Collected Data automatically under your direction when providing the Services and that Bugsee exercises no control whatsoever over the content of the information (including Collected Data) passing through Bugsee's systems and networks in connection with providing the Services. Bugsee is not responsible for inspecting the Collected Data that it collects. Customer will be responsible for the accuracy, quality and legality of Collected Data and the means by which Customer acquired the Collected Data.
We collect, store, and use your Collected Data on our servers to provide you with the Service. We only share User information as you direct and with others under special circumstances as follows:
We provide you with access to your Collected Data and the ability to delete any of your User data (subject to our legal obligations). We also take commercially reasonable steps to safeguard Collected Data. Provided, however that no security system is impenetrable. It may be possible for third parties to intercept or access Collected Data. We cannot guarantee the security of such information and are not responsible for unauthorized access to your account or Collected Data.
You agree to comply with all applicable privacy and data protection regulations. You agree to provide appropriate notices to your Users about, and if required by applicable laws, obtain appropriate consent from Users for, your information collection and use practices relating to your use of our Services, and your use of any service providers or other third parties that you instruct to send us data or to whom You instruct us to send your Collected Data. You will not collect or provide us with any Collected Data (or have a third party do the same), nor request us to collect from, or forward any Collected Data to, any third party, or request (through the Services or directly) such third party to perform any processing or transmission, in violation of any law, regulation, or third party right, including without limitation intellectual property, privacy or contractual right. We will not be responsible for any act omission of any third party that you request to provide us with Collected Data or to whom you request us to forward your Collected Data, and you will indemnify and hold us harmless arising out of or related to their provision or use of the Collected Data.
You, and any third party on your behalf, shall not provide Bugsee with any data that is considered “personal data” under the EU Data Protection Directive 95/46/EC, Art. 4 of the General Data Protection Regulation, or that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which you and Bugsee operate. Examples of such restrictive frameworks include, but are not limited to, the Health Insurance Portability and Accountability Act, the Children's Online Privacy Protection Act, and the standards promulgated by the PCI Security Standards Council. It is your responsibility at all times to ensure that the means of passing data to Bugsee, as well as the data itself, along with your directives that we pass this data on to third party tools, at all times comply with the laws, regulations and agreements to which you, the data, or Bugsee are subject.
In the performance of the Services, Bugsee is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Service's use and performance, provided that all User data is anonymized and no personally identifying information of the Customer or its Users is revealed. In addition, Bugsee may monitor the use and performance of the Services for compliance with, and to enforce, the terms and conditions of this Agreement.
The Services, including without limitation the Bugsee SDK, and any updates, are deemed accepted by Customer. Bugsee is not obligated to provide maintenance, technical support or updates to Customer for the Services. Any maintenance or updates provided by Bugsee, if any, shall be covered by this Agreement. Customer shall bear all costs of using the Services, including but not limited to, software design, software development, application debugging, application testing and network connectivity.
To the maximum extent permitted by applicable law, Bugsee provides the Services on an “as is” and “as available” basis, and hereby disclaims all warranties and conditions, whether expressed, implied or statutory, including, but not limited to, any implied warranties or conditions of merchantability, fitness for a particular purpose, accuracy or completeness of responses, results, lack of negligence or lack of workmanlike effort, and non-infringement. To the fullest extent allowed by law, you assume all risk for your use of the Service, including without limitation any harm caused by viruses, works or other damaging materials. In no event does Bugsee guarantee that the Services, or any portion thereof, are accurate, error or bug free, that your use of the Services will be uninterrupted, or that the operation of the Services will not negatively affect other software or hardware. This section applies to the maximum extent allowed by applicable law. The Services are offered by Bugsee from its facilities in the United States of America. Bugsee makes no representations that the Services are appropriate or available for use in other countries. Those who access or use the Services from jurisdictions outside the Unites States are responsible for compliance with all applicable laws.
You hereby agree, at your expense, to indemnify, defend and hold harmless Bugsee, its licensors, and their respective directors, officers, employees and agents from and against all demands, liabilities, losses, claims and expenses, including attorney's fees, arising out of or relating to (a) your use of the Services or any third party platform, including without limitation the service providers from whom we receive or to whom we submit data or instructions at your request, including without limitation that any claim that any of the foregoing violates any third party right, (b) services, products, information, data, processing instructions or content you submitted or used in connection with the Services, or (c) any actual or alleged negligence, willful misconduct, fraud, manipulation, or breach of this Agreement, by you. You will not enter into any settlement of, or agreement related to, any matter covered by this section without first obtaining Bugsee's written consent. Bugsee reserves the right, at its own expense and in its sole discretion, to participate in any defense, and to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall fully cooperate with Bugsee in such defense.
To the fullest extent permitted by law, in no event shall Bugsee, its officers, directors, employees, agents, vendors or suppliers be liable (i) for any indirect, special, incidental, consequential, exemplary or punitive damages related to or arising from your use, misuse or inability to use the Services or Site, including but not limited to, damages for lost data, lost profits or cost of procurement of substitute goods or services, personal injury or property damage of any nature resulting from your use of the Services or Site, unauthorized access to our servers, server unavailability and any personal information stored therein, 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, however caused under any theory of liability, including but not limited, to contract, tort, strict liability or negligence and whether or not Bugsee was or should have been aware or advised of the possibility of such damage or even if a remedy fails of its essential purpose; or (ii) for any claim attributable to errors, omissions or other inaccuracies in the Services or destructive properties of the Service. In no event shall Bugsee's aggregate liability under this Agreement exceed the total sum of monies paid from you to us as consideration for use of the Services during the twelve (12) months immediately preceding the event giving rise to such liability.
For Customers subscribing to the LITE Plan, we may terminate this Agreement at any time, in whole or in part, for any reason, with or without notice. During the LITE Plan, you may terminate this Agreement at any time by: (a) providing us with written notice and (b) discontinuing your use of the Services and removing all Bugsee java scripts and other scripts from your website, application or service and destroying all other parts of the Service, Software and Bugsee Confidential Information in your possession.
For Customers under a Paid Plan, you may terminate this Agreement effective as of the end of the then-current subscription period by providing us with at least thirty (30) days' written notice prior to the expiration of your then-current subscription term. Once you are under a Paid Plan, we may terminate this Agreement at any time, in whole or in part, for any reason upon providing you with fourteen (14) days' written notice.
Following any expiration, cancellation or termination of this Agreement, for any reason, the rights, license and any other services provided by us to you or granted herein to Customer, shall immediately and automatically terminate, and Customer shall no longer have the right to use or distribute the Services in any manner, network access to the Services will be stopped, and applicable API keys will be revoked, and Customer shall immediately (a) pay all outstanding balances and (b) cease all use of the Services and remove all Bugsee SDK from all Customer Applications, and destroy all other parts of the Services and Bugsee Confidential Information in your possession. Customer shall not distribute any Customer Applications that contain any Embedded Code thereafter. Notwithstanding the foregoing, Bugsee agrees the Customer applications containing the Embedded Code already distributed to end-users shall not be affected. The following sections will survive any expiration or termination of this Agreement: Section 3 (with respect to any outstanding Fees and their collection), Section 4(c) (Ownership), Section 5 (Restrictions), Section 6 (Confidential Information) and Section 9 (Disclaimer of Warranty) through Section 14 (Miscellaneous), in addition to any other provisions which by their terms or sense are intended to survive.
All content included by Bugsee on the Site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Bugsee 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 and protected by U.S. and international copyright laws. All software used on (or provided through) the Site is the property of Bugsee or its software suppliers and protected by United States and international copyright laws.
Bugsee respects the intellectual property of others and asks that you 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:
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
You agree that Bugsee may modify the terms of this Agreement from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you when we make material revisions or modifications to the Agreement by (x) posting a notice or new version of this Agreement on the Site, or (y) providing direct notice in a communication to your customer account (if you have one), or otherwise in some manner through the Services that we deem reasonably likely to reach you (which may be by posting to this Site or on our blog). The modifications will be effective upon posting (unless otherwise indicated at the time of posting). By continuing to use the Services or Site following the posting of this Agreement, you consent to the revised or modified terms of this Agreement.
To the extent that the JAMS Rules conflict with California law, California law shall take precedence. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. The parties agree that the prevailing party in any arbitration shall be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award. The parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration, and each party shall separately pay for its respective counsel fees and expenses; provided, however, that the arbitrator shall award attorneys' fees and costs to the prevailing party, except as prohibited by law.
The parties hereby agree to waive their right to have any dispute between them resolved in a court of law by a judge or jury. Notwithstanding the foregoing, this section will not prevent either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of their dispute relating to this agreement and the agreements incorporated herein by reference. Should any part of the arbitration agreement contained in this paragraph conflict with any other arbitration agreement between the parties, the parties agree that this arbitration agreement shall govern.
5273 Prospect Rd STE #330
San Jose, California 95129