MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND USE OF BITIUM’S SERVICES. THIS IS A BINDING AGREEMENT BETWEEN YOU (“CUSTOMER”) AND BITIUM, INC. (“BITIUM”). PLEASE READ THE AGREEMENT CAREFULLY. BY USING BITIUM’S SERVICES IN ANY MANNER YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, PLEASE CLICK THE “CANCEL” OR “BACK” BUTTON AND DO NOT USE BITIUM’S SERVICES.
This Agreement was last updated on November 20, 2017. It is effective between Bitium and Customer as of the date of Customer accepting this Agreement.
- Description of the Services. Bitium offers a variety of tools and services (“Service” or “Services”) for online management of Software-as-a-Service (“SaaS”) and related products and applications. The Services include, but are not limited to, SaaS identity and access management, provisioning, password management, analytics, usage, billing tools, and the Bitium Application Services Endpoint product (“BASE”), and will be made available online via www.bitium.com and/or other web pages designated by Bitium, including associated offline components, and excluding websites or applications not owned or controlled by Bitium (“Third-Party Websites”). The Services may be modified at any time the sole discretion of Bitium with or without prior notification to Customer, provided, however, that Bitium will provide written notice to Customer’s designated admin user(s) if any modification would result in the removal of any material functionality of the Services. Customer and Customer’s Users (defined as individuals who are authorized by Customer to use the Services on Customer’s behalf, including, but not limited to, employees, consultants, contractors, agents, and third parties with which Customer transacts business) may use the Services for personal and business use or for internal business purposes in the organization that Customer represents. Any plug-ins, agents, administrative code or other software obtained by Customer in connection with the Services and controlled by Bitium (whether downloaded by Customer or any Customer’s User, collectively “Software”) is deemed to be a part of the Services and is subject to all of the terms of this Agreement, including without limitations the disclaimers, limitations and restrictions herein relating to the Services. Bitium retains all right, title and interest in and to the Services and Software, including without limitation all software used to provide the Services (excluding open source software) and all logos, trademarks, patents and copyrights reproduced and used through the Services. This Agreement does not grant Customer or Customer’s Users any intellectual property rights in or to the Services, the Software or any of their respective components.
- License to Use Services. During the Term (defined below), and subject to compliance with the terms of this Agreement, Bitium grants Customer and Customer’s Users (who are bound by obligations and restrictions consistent with this Agreement) a limited, non-exclusive, non-sublicensable, non-transferable license to use the Services and Software (the “License”).
Purchased Services. “Purchased Services,” as distinguished from the Services that may be offered under a Free Trial (as defined in Section 1(d)), will be made available to Customers who pay for Bitium’s Services. Payment may be made directly via forms provided on Bitium’s Website, or pursuant to separate agreements that are entered into between Customer and Bitium from time to time (“Order Forms”). Order Forms shall be deemed incorporated herein by reference and governed hereby unless otherwise indicated thereon.
- Purchased Services will be available during their subscription term (as defined based on the plan selected by Customer during payment via Bitium’s Website, or via a relevant Order Form), and Customer agrees that no Purchased Services are purchased in reliance or contingent on the delivery of any future functionality or features, or in reliance or dependent on any oral or written public comments made by Bitium regarding future functionality or features.
- Unless otherwise specified in an applicable Order Form, (i) Purchased Services include a specified number of end-user accounts (“End-Users”) and may also include specific functionality or integrations (for example, Active Directory, LDAP, or other authentication system integrations), (ii) additional Purchased Services or End-Users may be added during the subscription term at the price specified on the Bitium website, or in an applicable Order Form, and (iii) the added Purchased Services or End-Users shall terminate on the same date as the pre-existing Purchased Services unless otherwise agreed upon in an Order Form. Additional End-User seats will be purchased in increments of ten (10) unless otherwise specified in an applicable Order Form.
- End-Users accounts cannot be shared or used by more than one designated user, but may be reassigned to a new End-User replacing a former End-User.
Free Trial. From time to time and in its sole discretion, Bitium may offer Customer a free trial of one or more Services (“Free Trial”). During a Free Trial, Bitium will make such Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the Free Trial period (as specified by Bitium) or (b) the start date of any Purchased Services ordered by Customer. Additional trial terms and conditions may appear on the registration web page for the Free Trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding on Customer.
- ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, PURCHASES UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD.
- NOTWITHSTANDING SECTION 6 (WARRANTY AND DISCLAIMER), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
- Beta Services. Bitium may offer certain Services as closed or open beta services (“Beta Service” or “Beta Services”) for the purpose of testing and evaluation by Bitium. Customer agrees that Bitium has the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. Bitium will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as the Services commercially. Customer is under no obligation to acquire a subscription to use any paid Service as a result of a subscription to any Beta Service. Bitium reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice. Customer agrees that Bitium will not be liable to Customer or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any Beta Services at any time and/or for any reason.
- BASE. If Customer uses BASE Services, Bitium may collect and/or receive data required to authenticate Customer end users (“End User Authentication Data”) into Customer’s own application(s). Customer owns the End User Authentication Data from their own end users and hereby grants Bitium a license to use End User Authentication Data as reasonably necessary for us to provide the BASE Services.
Use of the Services
- Bitium’s Responsibilities. Bitium will: (i) provide commercially acceptable levels of support for the Services, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) scheduled maintenance and downtime (regularly scheduled for Saturday at 8:00pm PT; if other scheduled downtime is required, Bitium will give at least 24-hour notice via the Services and/or email, and will use commercially reasonable efforts to schedule during non-business hours in the United States), or (b) any unavailability caused by circumstances beyond Bitium’s reasonable control, including without limitations, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, internet service provider failures or delays, or denial of service attacks, and (iii) provide the Services in accordance with applicable laws and government regulations.
- Customer Responsibilities. Customer will: (i) be responsible for compliance with this Agreement by Customer and Customer’s Users, (ii) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer Data is collected, (iii) use reasonable efforts to prevent unauthorized access to or use of the Services or Software, and notify Bitium immediately of any such unauthorized access or use, and (iv) use the Services and Software only in accordance with Bitium’s instructions and all applicable laws and government regulations. Customer will not (a) make the Services or Software available to anyone other than Customer’s Users, (b) sell, resell, rent, lease, license or sublicense the Services or Software, (c) use the Services or Software to store or transmit libelous, infringing or otherwise unlawful or tortious material, or to store or transmit material in violations of third-party privacy rights, (d) use the Services or Software to store or transmit viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs, (e) interfere with or disrupt the integrity or performance of the Services or Software or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or their related systems or networks or Software, or (g) violate any intellectual property rights of Bitium, including but not limited to, Bitium trademarks, copyrights, patents, etc.
- Customer Passwords Provided Outside of the Bitium Services. In the event that Customer intentionally or accidentally provides Bitium with usernames, passwords, or other credential information (collectively, “Credentials”) outside of the Bitium Services (for example, via email, customer support communications, access to documents, and/or other insecure means of communication), Bitium is not responsible for any consequences resulting from such un-secured disclosure of Credentials. In the event that this type of disclosure occurs, it is Customer’s responsibility to ensure that Credentials are changed or otherwise secured in order to prevent any unauthorized access or other consequences.
- Acquisition of Non-Bitium Products and Services. Bitium may from time to time make available to Customer (e.g., through the Bitium App Marketplace) third-party products or services (collectively “Third-Party Applications,” and their providers “Non-Bitium Providers”). Any acquisition by Customer of any such Third-Party Application, and any exchange of data between Customer and any Non-Bitium Provider, is solely and shall be exclusively be governed by an agreement between Customer and such Third-Party Application. Customer acknowledges and agrees that Bitium does not warrant or support Third-Party Applications. Subject to Section 3(c) (Integration with Third-Party Applications), no purchase of Third-Party Applications is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
- Third-Party Applications and Your Data. If Customer installs or enables Third-Party Applications for use with the Services, Customer acknowledges and agrees that Bitium may allow Non-Bitium Providers to access Customer Data as necessary for the interoperation of such Third-Party Applications with services other than the Services. Bitium shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by any Non-Bitium Providers.
- Integration with Third-Party Applications. The Services may contain features designed to interoperate with Third-Party Applications. To use such features, Customer may be required to obtain access to such Third-Party Applications from their Non-Bitium Providers. In Bitium’s sole discretion, if the Non-Bitium Provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Service features on reasonable terms, Bitium may cease providing such Service features with or without notice at any time, and without entitling Customer to any refund, credit, or other compensation from Bitium.
FEES AND PAYMENT FOR PURCHASED SERVICES
- Fees. If Customer buys Purchased Services, Customer shall pay all fees in accordance with the terms hereunder. Except as otherwise specified herein, (i) fees are based on the Services and number of End-User accounts purchased or subsequently added as End-Users in the Services and not actual usage by Users, and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
- Invoicing and Payment. Concurrently with Customer accepting this Agreement and electing to use Purchased Services, Customer will provide Bitium with valid and updated credit card information via the appropriate forms on Bitium’s Website. Customer may elect to make payment via a check made payable to “Bitium, Inc.” If Customer provides credit card information to Bitium, Customer authorizes Bitium to charge such credit card for the level of Services selected as listed on the payment page or Order Form for the initial subscription term selected, and any applicable renewal subscription term(s). Charges shall be made in advance, in accordance with the billing frequency selected via the Bitium Website or stated in the applicable Order Form. If an Order Form specifies that payment will be by a method other than a credit card, Bitium will invoice Customer in advance in accordance with the relevant Order Form. Unless otherwise stated in an Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Bitium and notifying Bitium of any changes to such information.
- Upgrades. If any of Customer’s authorized End-Users (i.e. admin-level users) upgrades Customer’s Services plan or increases the number of Customer’s End-Users, any incremental fees associated with such upgrade will be prorated over the remaining period of the then-current subscription Term, charged to Customer’s account, and due and payable upon implementation of such upgrade. In any future renewal Term, fees will reflect any such upgrades.
- Overdue Charges. If any charges are not received from Customer by the due date, then at Bitium’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Bitium may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4(b) (Invoicing and Payment).
- Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement (e.g. Order Form) for any Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized Bitium to charge to Customer’s credit card), Bitium may, without limiting other rights and remedies, accelerate Customer’s payment obligations under such agreements so that all unpaid amounts become immediately due and payable, and suspend all Services to Customer until such amounts are paid in full. Such acceleration may include, but is not limited to, converting Customer to annual payment terms or increasing minimum user requirements, where applicable.
- Taxes. Unless otherwise stated, Bitium’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with purchases hereunder. If Bitium has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Bitium with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Bitium is solely responsible for taxes assessable against it based on Bitium’s income, property and employees.
- Restrictions. Customer may not access the Services if it is a direct competitor to Bitium and may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Customer will not reproduce, modify, translate, or create derivative works of the Services, any underlying ideas, technology, or related Software, or any portion thereof. Customer shall not copy, rent, sell, lease, license, sublicense, distribute, pledge, assign, or otherwise transfer, encumber rights to, or allow access to the Services, Software or any part thereof or use them for the benefit of any third party. Customer shall not reverse assemble, reverse compile or reverse engineer any Software or the Services, or otherwise attempt to discover any such Software source code, object code, or underlying Proprietary Information (as that term is defined below). Customer shall not remove or otherwise alter any proprietary notices or labels from the Services, Software or any portion thereof. If the Customer is an agency, department, or other entity of any government, (i) the use, duplication, reproduction, release, modification, disclosure, or transfer of this product, or any related documentation of any kind, including technical data, software, and manuals, will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement, and (ii) no rights other than those provided hereunder are conferred. The Services and Software are developed fully at private expense.
- Warranty and Disclaimer. THE PARTIES ACKNOWLEDGE THAT THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN. BITIUM AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES RELATING TO THE SERVICES OR SOFTWARE OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER BITIUM NOR ITS AFFILIATES MAKES ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR SOFTWARE, OR THAT THE SERVICES OR SOFTWARE WILL BE ERROR-FREE OR AVAILABLE AT ANY GIVEN TIME.
- Limitation of Liability and Damages. NEITHER BITIUM NOR ITS AFFILIATES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, INCLUDING WITHOUT LIMITATIONS CUSTOMER DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, (D) FOR AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE FEES PAID TO BITIUM HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR $100, WHICHEVER IS GREATER, OR (E) FOR ANY MATTER BEYOND BITIUM’S REASONABLE CONTROL.
- Indemnification. Customer agrees to indemnify and hold harmless Bitium, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to any claims that Customer has used the Services or Software in violation of another party’s rights, in violation of any law, in violations of any provisions of this Agreement or any Order Form, or any other claim related to Customer’s use of the Services or Software. In cases where Customer uses the Services or Software to access a Third-Party Website or Third-Party Application, Customer is solely responsible for reviewing and abiding by such Third-Party Website or Third-Party Application’s terms and conditions, and Bitium is not responsible for Customer’s violation thereof, even if the Third-Party Website or Third-Party Application is accessed using the Services or Software, and Customer agrees to indemnify Bitium under this Section 8 for any such violation.
- No Endorsement. NO ENDORSEMENT OF OR PARTICIPATION BY ANY THIRD PARTY SHOULD BE INFERRED DUE TO ANY REFERENCE TO THAT THIRD PARTY OR INCLUSION OF DATA RELATING TO THAT THIRD PARTY IN CONNECTION WITH THE SERVICES. The Services may allow Customer to interface with a variety of Third-Party Applications obtained separately by Customer. Bitium is not responsible for the operation or functionality of such Third Party Applications. While Bitium may, in its sole discretion, customize the Services to interoperate with various Third Party Applications, (i) Bitium cannot and does not guarantee that the Services shall interoperate (or continue to interoperate) with any particular Third Party Application, and (ii) Bitium’s support obligations set forth in this Agreement shall not extend to any Third Party Application.
Term and Termination
- Term of Agreement. This Agreement commences on the date Customer and/or Customer’s Users accepts it by using the Services and continues until all use of the Services granted in accordance with this Agreement has expired or the License has been terminated (the “Term”).
- Term of Purchased Services. Purchased Services purchased by Customer commence on the date payment is made via the Bitium Website (or the “Services Start Date” specified in an applicable Order Form) and continue for the term specified upon payment. Unless otherwise specified in an applicable Order Form, the Term of all Purchased Services shall be one (1) year (regardless of payment frequency) and shall automatically renew for additional one-month terms, unless either party gives the other party a notice of non-renewal at least 30 days before the end of the then-applicable subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Bitium has given Customer written notice of a pricing increase at least 14 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
- Termination. Subject to Section 4(d), Customer agrees that Bitium may suspend or terminate access to the Services or Software without notice if: (a) Bitium determines that Customer or any Customer’s User has violated this Agreement or (b) Bitium is required to do so by any court or government authority in any country. Bitium may, upon such termination, deactivate or delete Customer’s account and any related data, information, and files, and bar any further access to such data, information, and files. Such action may include, among other things, accessing Customer Data and/or discontinuing Customer’s or Customer’s Users’ use of the Services or Software without refund or compensation. Customer agrees that Bitium has no obligation to monitor Customer’s or Customer’s Users’ use of the Services or Software but has the right to do so to ensure compliance with this Agreement, or to comply with any law, order, or requirement of any court or government authority in any country.
- Use of Logo. Bitium may use Customer’s logo on the Bitium website as a customer reference unless customer objects to such use in writing. Customer also agrees to let Bitium produce and publish (with prior approval of both parties) materials (i.e. case study and quote on Bitium’s website) highlighting Customer’s use of Bitium’s services
- Notice. All notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the third business day after mailing, or (iii) the second business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer will be addressed to the relevant contact designated on the Order Form.
- Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer, and any such attempted assignment or transfer shall be void and without effect automatically. Bitium may freely assign its rights and obligations under this Agreement and transfer this Agreement without Customer’s consent.
- Controlling Law, Attorneys’ Fee and Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of California. With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Los Angeles, California. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- Arbitration. Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and non-appealable. The arbitration shall be conducted in California and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, Bitium may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
- Independent Contractors. The parties are independent contractors under this Agreement, and nothing herein shall 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.
- Entire Agreement, Severability, Waiver. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto and related to the subject matter hereof are expressly canceled. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. If Bitium does not exercise or enforce any legal right or remedy contained in this Agreement, this will not be taken to be a formal waiver of Bitium’s rights and those rights or remedies will still be available to Bitium.