Terms

Last Updated: May 12th, 2020

The following BugSplat Terms of Use (“Terms” or “Agreement”) constitutes a legal agreement between you (“you,” “your,” or “Developer(s)”, all used interchangeably except that when “Developer(s)” is used herein, it applies only to “Developer(s)” (as “Developer(s)” is defined in Section 1 below)) and, if applicable the Entity (as defined below) on whose behalf you are accessing and/or using the Services (as defined below) and BugSplat LLC (“BugSplat”). Your use of the BugSplat websites and the BugSplat crash reporting solution (collectively, the “Services,” as more fully described below) is subject to these Terms, so you should take the time to fully understand how these Terms govern your relationship with BugSplat and your use of the Services. If you have questions regarding the Terms, please contact BugSplat at [email protected]

YOUR RIGHT TO ACCESS AND USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE ACCESSING OR USING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY (“ENTITY”), YOU AGREE TO PROVIDE BUGSPLAT WITH THE NAME OF THE ENTITY AND OBTAIN BUGSPLAT’S APPROVAL TO USE THE SOFTWARE ON YOUR BEHALF AND BEHALF OF THE ENTITY AND YOU AGREE TO REMAIN RESPONSIBLE AND LIABLE FOR YOUR AND SUCH ENTITY’S COMPLIANCE WITH THIS AGREEMENT. FURTHER, YOU REPRESENT AND WARRANT TO BUGSPLAT THAT (I) YOU ARE THE AUTHORIZED AGENT OF THE APPLICABLE ENTITY AND HAVE THE LEGAL AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF YOURSELF AND THE ENTITY, AND (II) YOU HAVE OBTAINED, ON BEHALF OF YOURSELF AND THE ENTITY (IF APPLICABLE), ALL NECESSARY RIGHTS, WAIVERS, CONSENTS AND PERMISSIONS NECESSARY TO COLLECT, USE, STORE, AND SHARE USER INFORMATION IN CONNECTION WITH THE SOFTWARE.

SECTION 1. OVERVIEW OF THE SERVICES

The Services provide a crash reporting solution for developers of computer applications (“Developer(s)”). The Services provide information to Developers about the functioning of applications they own or manage, including, but not limited to, information about how and under what circumstances an application crashed.

SECTION 2. SPECIFIC TERMS FOR DEVELOPERS

Service and Access Credentials. Developer will provide reasonable cooperation, assistance, information and access to BugSplat as may be necessary to initiate Developer’s use of the Services. During the Term, and subject to Developer’s compliance with all terms and conditions of these Terms, BugSplat will provide Developer with access to the Services. As part of the implementation process, Developer will identify user names and passwords that will be used to set up Developer’s account. Developer will be responsible and liable for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to Developer. BugSplat reserves the right to refuse registration of, or to suspend or cancel, login IDs used by Developer to access the Services if Developer violates the terms and conditions set forth in these Terms.

License to Developer. During the Term, and subject to all terms and conditions of these Terms, BugSplat grants Developer a nonexclusive, nontransferable right and license (without right to sublicense) to (a) access and use the Services (including the Background Materials (as defined below) necessary to use the Services), solely for Developer’s internal business purposes and (b) download, install and use a reasonable number of copies of the BugSplat software development kit (the “SDK”) and any tools provided as part of the SDK solely in connection with Developer’s authorized use of the Services. Developer may use the Services and the Software for the sole purposes of (i) enabling users of their applications, (ii) obtaining information regarding the installation, use of and engagement with, and the functionality of Developer’s applications, including reporting on errors or bugs (collectively, “Performance Data”), (iii) improving the functionality of Developer’s applications and related products and services, and (iv) communicating with users about Developer’s applications. Developer’s access and use of the Services shall also comply with all other conditions set forth in all documentation, instructions, end user guides and other documents regarding the Services and Software that is provided or made available by BugSplat to Developer in electronic or other form (collectively, “Documentation”). Additionally, during the Term and thereafter in perpetuity, and subject to all terms and conditions of these Terms, BugSplat grants Developer a nonexclusive, nontransferable right and license (without right to sublicense) to distribute to Developer’s authorized end-users BugSplat’s binary files included as part of the SDK for the sole purpose of use of the Services.

Restrictions. Except as expressly authorized under immediately preceding section (License to Developer), Developer shall not directly or indirectly (a) use the Services or any of BugSplat’s Confidential Information (as defined below) to create any service, software or documentation that is substantially the same or has similar functionality as the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Services or Background Materials (defined below), except and only to the extent these restrictions are expressly prohibited by applicable statutory law, (c) encumber, sublicense, transfer, distribute, rent, lease, time­share or use any BugSplat Properties (as defined below) in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of or otherwise modify any BugSplat Properties, or (e) use or allow the transmission, transfer, export, re-­export or other transfer of any product, technology or information it obtains or learns in connection with Developer’s use of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.

Developer Data. Developer hereby grants BugSplat a nonexclusive, license­ fee free and royalty­ free right and license to access, copy, distribute, process and use all information, data and other content provided by Developer (“Developer Data”) solely for the purpose of providing the Services and as otherwise expressly permitted in these Terms. Developer agrees that (a) the Services depends on the availability of the Developer Data, and (b) BugSplat will not assume any responsibility or liability for, or undertake to verify, the legality, accuracy or completeness of the Developer Data. BugSplat shall have no obligation to store any Developer Data or Results (as defined below).

User Data. The Services allow the Developer to collect information relating to performance of Developer’s applications. Developer may turn on features of the Services to allow collection of other information via the Services, including some personally identifiable information (e.g., a user’s e­mail address), which allows Developers to communicate with users about the functionality of their applications. Developer represents and warrants that Developer is collecting information via the Services solely to obtain information about the user engagement with and functionality of Developer’s applications, and to communicate with users about such engagement and functionality. Subject to and without limiting the foregoing, Developer agrees it will not enable collection or use of credit card information, Social Security numbers, driver’s license numbers, dates of birth or physical addresses via the Services. Developer further agrees it will not enable the collection or use of personally identifiable information by way of applications directed at children under 13 via the Services or provide any personally identifiable information collected via such applications to BugSplat. At all times during the term of this Agreement, developer shall at all times comply with all applicable laws, rules and regulations relating to data collection, privacy and security, including, without limitation, the Children’s Online Privacy Protection Act (“COPPA”) and shall indemnify and hold BugSplat harmless with respect to any violations thereof.

Developer Systems. Developer is responsible for providing (a) all equipment, subscriptions and credentials necessary for BugSplat to receive the Developer Data, and (b) all modems, servers, devices, storage, software (other than Software), databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Services at its facility (collectively, “Developer Systems”). Developer shall ensure that Developer Systems are compatible with the Services and comply with all configurations and specifications described in the Documentation.

Limitations. BugSplat will not be responsible or liable for any failures in the Services or any other problems which are related to (a) the Developer Data or Developer Systems, or (b) any satellite, telecommunications, network or other equipment or service outside of BugSplat’s facilities or control.

Confidentiality. “Confidential Information” means, with respect to BugSplat, all financial, business or technical information disclosed by or for BugSplat in relation to these Terms and/or the Services that is of a nature that should reasonably be considered to be confidential or proprietary. Except for the specific rights granted by these Terms, neither party receiving Confidential Information hereunder (“Recipient”) may use, copy or disclose any Confidential Information of the party disclosing Confidential Information hereunder (“Discloser”) without Discloser’s prior written consent, and shall use no less than reasonable care to safeguard Discloser’s Confidential Information, including ensuring that Recipient’s employees, contractors and agents (“Representatives”) with access to Discloser’s Confidential Information have a need to know such Confidential Information for the purposes of these Terms and are bound by confidentiality obligations no less protective of the parties as those set forth herein. The foregoing obligations shall not apply to any Confidential Information that Recipient can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to Discloser, (c) generally available to the public without breach of these Terms or (d) independently developed by it without reference to or use of any of Discloser’s Confidential Information and without any violation of any obligation of these Terms. Each party shall be responsible for any breach of confidentiality by its Representatives, as applicable. Promptly upon Discloser’s request at any time, Recipient shall return all of Discloser’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Nothing herein shall prevent a party from disclosing any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, however, prior to any such disclosure, Recipient shall use reasonable efforts to (a) promptly notify Discloser in writing of such requirement to disclose, and (b) cooperate with Discloser in protecting against or minimizing any such disclosure and/or obtaining a protective order.

Proprietary Rights. As used in these Terms: “Background Materials” means all ideas, concepts, inventions, systems, platforms, software (including all Software), interfaces, tools, utilities, templates, forms, Report Formats, techniques, methods, processes, algorithms, know ­how, trade secrets and other technologies and information that are used by BugSplat in providing the Services and Results (including any correction, improvement, derivative work, extension or other modification to the Services made, created, conceived or developed by or for BugSplat, including at Developer’s request or as a result of feedback provided by Developer to BugSplat); “Reports” means the reports, charts, graphs and other presentation in which the Results are presented to Developer; “Report Formats” means the formatting, look and feel of the Reports; and “Results” means the work products resulting from the Services that are delivered to Developer by BugSplat through the Services, and which are based on the Developer Data. For the sake of clarity, Results shall expressly exclude all Background Materials. Developer shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to feedback, suggestions, ideas or other materials and information provided (“User Feedback”), the Results and Developer Data. Developer acknowledges and agrees that the Results will be presented to it in a Report, the Report Format of which is Confidential Information and proprietary to BugSplat. Developer may make a reasonable number of copies of the Reports only for its internal purposes in using the Results. Developer hereby grants to BugSplat a license ­fee free, royalty ­free, fully paid up, non­exclusive, perpetual and irrevocable, worldwide right and license to (a) use the Developer Data, Performance Data and User Feedback, solely for purposes of providing the Services to Developer, (b) use the Developer Data, Performance Data and User Feedback to create aggregate measures of Services usage, engagement, and performance, and (c) use the Results and aggregated Developer Data, Performance Data and User Feedback to improve the Services generally and for its other business purposes.

General Learning; Aggregate Data. BugSplat reserves the right to disclose aggregate information of Services usage, engagement, and performance, and to reuse all general knowledge, experience, know ­how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Services (including without limitation, that which it could have acquired performing the same or similar services for another customer).

Reservation of Rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and BugSplat (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Services, Documentation, Background Materials, aggregate data, and analyses (collectively, “BugSplat Properties”).

Warranties. Developer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Developer Data as may be necessary to grant the rights and licenses, and provide the representations, and for BugSplat to provide the Services set forth herein. Developer bears all responsibility and liability for the legality, accuracy and completeness of the Developer Data and BugSplat’s access, possession, distribution and use thereof, as permitted herein.

SECTION 3. GENERAL TERMS

Disclaimers. THE BUGSPLAT SERVICES, BUGSPLAT PROPERTIES AND RESULTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, BUGSPLAT AND ITS AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS (COLLECTIVELY, THE “BUGSPLAT ENTITIES”) MAKES NO WARRANTY (I) THAT THE SERVICES OR RESULTS WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR­FREE OR BUG­FREE, (II) REGARDING THE RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICES, OR (III) THAT ANY ERRORS IN THE SERVICES CAN OR WILL BE CORRECTED. THE BUGSPLAT ENTITIES HEREBY DISCLAIM (FOR ITSELF AND ITS SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON­INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

Indemnification. You will indemnify, defend, and hold harmless the BugSplat Entities from all claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with (a) your use of the Services, (b) your actual or alleged infringement or misappropriation of the rights of any third party, including, without limitation, any intellectual property rights, privacy rights or publicity rights; and (c) your breach of any representations and warranties set forth in the Agreement. You are solely responsible for defending any Claim against the BugSplat Entities, subject to such BugSplat Entities’ right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against the BugSplat Entities, provided that you will not agree to any settlement related to any Claims without the BugSplat Entities’ prior express written consent regardless of whether or not such settlement releases the BugSplat Entities from any obligation or liability.

Limitation of Liability. IN NO EVENT SHALL THE BUGSPLAT ENTITIES BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO BUGSPLAT IN THE IMMEDIATELY PRECEDING 12-MONTH PERIOD. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Term and Termination

Term; Termination The term of this Agreement (the “Term”) shall initially be the free trial period described below under “Pricing”. Following the initial free trial period, the Term shall be such period of time as specified by your BugSplat invoice (if any) or the period covered by your most recent credit card payment. BugSplat may terminate your use of the Services for any reason or no reason during the initial free trial period which termination shall be effective immediately upon BugSplat’s written notice to you of such termination; thereafter, BugSplat may terminate your use of the Services without cause by providing written notice of such termination not later than thirty (30) days prior to the end of the then current Term, which termination shall be effective upon expiration of the then current Term. This Agreement and your right to use the Services may be terminated by either party due to a material breach of this Agreement by the other party which has not been cured within ten (10) days after express written notice thereof from the non-defaulting party, including non-payment. BugSplat’s right to terminate for non-payment is in addition and without prejudice to BugSplat’s right to the outstanding amounts owed to BugSplat.

Effects of Termination. Upon any expiration or termination of the Terms, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination and all remedies for breach of these Terms shall survive, (b) you must discontinue accessing and using the Services and delete all Software, BugSplat Properties, and BugSplat Material, and (c) the provisions in Section 2 titled Restrictions, Developer Feedback, Confidentiality, Proprietary Rights, General Learning; Aggregate Data, Warranties and the provisions in this Section 3 shall survive. BugSplat has no obligation to store, delete or return any User Feedback, Performance Data, Developer Data or Results.

Pricing

Free Trial. All new accounts are free for the first 30 days of use. This is BugSplat’s free trial period. BugSplat has a free tier for low volume accounts, which are not charged a subscription fee. However, crash reports may be rejected when the crash count exceeds the low volume limit Subscription. After the free trial period, you will be asked pay for the BugSplat services or your account will be terminated. Monthly subscriptions are available through our website. For additional information on pricing for your application, or for annual invoice subscriptions, please contact us at [email protected]

Miscellaneous

Entire Agreement. These Terms constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of these Terms.

Waivers, Consents and Amendments. No waiver, consent or modification of these Terms shall bind the BugSplat Entities unless in writing and signed by BugSplat. We may amend these Terms from time to time. If we make a change to these Terms that, in our sole discretion, is material, we will notify you by posting notice of the change on BugSplat.com and in these Terms. Any such amended Terms shall become effective with respect to you and your use of the Services upon the next renewal of your Term. If you do not agree to the modified terms, you shall notify BugSplat in writing not later than thirty (30) days prior to the end of the then current Term, and upon the expiration of the then current Term your right to access and use the Services shall immediately terminate and the BugSplat Entities shall have no further responsibility or liability to you. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights.

Severability. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of New Hampshire. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to these Terms. Except that the BugSplat Entities may seek equitable or similar relief from any court of competent jurisdiction to prevent or restrain any breach or threatened breach of this Agreement by you, exclusive jurisdiction and venue for actions related to these Terms or your use of the Services will be the state and federal courts located in Merrimack County New Hampshire, United States, and both parties consent to the jurisdiction of such courts with respect to any such actions. In any action or proceeding to enforce or interpret these Terms, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, confirmed electronic transmission, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party, which, in the case of Developer, shall be the address provided to BugSplat upon signing up for the Services, and, in the case of BugSplat, shall be BugSplat 1023 Walnut St, Boulder, CO 80302 or at such other address for either party as is designated in a subsequent notice. All notices shall be in English, and deemed to have been received when they are hand delivered, or five business days of their mailing, or upon confirmed electronic transmission.

Assignment. These Terms and the rights and obligations hereunder may not be assigned, transferred or delegated, in whole or in part, by you without BugSplat’s prior written consent. Any assignment or transfer in violation of the foregoing shall automatically be null and void. These Terms shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

Independent Contractors. The parties shall be independent contractors under these Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.