BITSUM GENERAL TERMS
Last Updated: Nov 16, 2022
These General Terms (“General Terms”) between Bitsum LLC, a Tennessee LLC, with its principal place of business at PO BOX 1143, Talbott, TN 37877 USA (“Bitsum” or “we” or “us” or “our”) and you (“Customer” or “you” or “your”) apply to the purchase of licenses and subscriptions for Bitsum’s Offerings (“Process Lasso”, “ParkControl”, …). By clicking on the appropriate button, or by downloading, installing, accessing or using the Offerings, you agree to these General Terms. If you are entering into these General Terms on behalf of Customer, you represent that you have the authority to bind Customer. If you do not agree to these General Terms, or if you are not authorized to accept the General Terms on behalf of the Customer, do not download, install, access, or use any of the Offerings.
See the General Terms Definitions Exhibit attached for definitions of capitalized terms not defined herein.
1. License Rights
- General Rights. You have the nonexclusive, worldwide, nontransferable and nonsublicensable right, subject to payment of applicable Fees and compliance with the terms of these General Terms, to use your Purchased Offerings for your Internal Business Purposes during the Term and up to the Capacity purchased.
- Copies for On-Premise Products. You have the right to make a reasonable number of copies of On-Premises Products for archival and back-up purposes.
- Trials, Evaluations, Beta and Free Licenses.
- Trials and Evaluations. Offerings provided for trials and evaluations are provided at no charge, and their use will be for a limited duration.
- Beta Licenses. Some Offerings and features may be available to you as a preview, or as an alpha, beta or other pre-release version (each, a “Beta Offering”). All rights for Beta Offerings are solely for internal testing and evaluation. Your use of a Beta Offering will be for the term specified by us, and if no term is specified, then for the earlier of one year from the start date of the Beta Offering or when that version of the Beta Offering becomes generally available. We may discontinue the Beta Offering at any time and may decide not to make any of the features and functionality generally available.
- Free Licenses. From time to time, we may make certain Offerings available for full use (i.e., not subject to limited evaluation purposes) at no charge. These free Offerings may have limited features, functions, and other technical limitations.
- Donated Offerings. Donated Offerings are free limited Offerings donated to qualifying Nonprofits under a Bitsum donation program. By procuring and making use of a Donated Offering, you hereby represent and warrant that you are a lawfully organized Nonprofit, and you agree to provide verification of your nonprofit status to Bitsum upon request. At Bitsum’s request, you agree: (a) to publish a press release and case study on your use of the Donated Offering; and (b) to be interviewed for the production of a Bitsum customer video that will accompany the press release and case study. Bitsum will draft and edit all content in collaboration with you and will obtain your edits and written approval (email is sufficient) prior to publication, and such approval will not be unreasonably withheld. You will allow Bitsum to reference your Nonprofit and leading spokespeople in press releases with your written approval (email is sufficient). Bitsum may use your name and logo on sales presentations, websites, and other marketing collateral without your prior approval.
- Test and Development Licenses. For Offerings identified as “Test and Development” Offerings on your Order, you only have the right to use those Offerings up to the applicable Capacity on a non-production system for non-production uses, including product migration testing or pre-production staging, or testing new data sources, types, or use cases. Test and Development Offerings may not be used for any revenue generation, commercial activity, or other productive business or purpose.
- Limitations. Notwithstanding anything to the contrary in these General Terms, we do not provide maintenance and support, warranties, service level commitments, or indemnification for Test and Development Offerings, trials, evaluations, or free or Beta Offerings.
2. Purchasing Through Authorized Resellers, Digital Marketplaces, and Bitsum Affiliates
- Authorized Resellers and Digital Marketplaces. If you purchase Offerings through a Bitsum authorized reseller or Digital Marketplace, these General Terms will govern those Offerings. Your payment obligations for the Purchased Offerings will be with the authorized reseller or Digital Marketplace, as applicable, not Bitsum. You will have no direct Fee payment obligations to Bitsum for those Offerings. However, in the event that you fail to pay the Digital Marketplace for your Purchased Offerings, Bitsum retains the right to enforce your payment obligations and collect directly from you.
Any terms agreed to between you and the authorized reseller that are in addition to these General Terms are solely between you and the authorized reseller and Digital Marketplace, as applicable. No agreement between you and an authorized reseller or Digital Marketplace is binding on Bitsum or will have any force or effect with respect to the rights in, or the operation, use or provision of, the Offerings.
- Bitsum Affiliate Distributors. Bitsum has appointed certain Bitsum Affiliates as its non-exclusive distributors of the Offerings (each, a “Bitsum Affiliate Distributor”). Each Bitsum Affiliate Distributor is authorized by Bitsum to negotiate and enter into Orders with Customers. Where a purchase from Bitsum is offered by a Bitsum Affiliate Distributor, Customer will issue Orders, and make payments, to the Bitsum Affiliate Distributor which issued the quote for the Offering. Each Order will be deemed a separate contract between Customer and the relevant Bitsum Affiliate Distributor and will be subject to these General Terms. For the avoidance of doubt, Customer agrees that: (i) the total liability of Bitsum under these General Terms as set forth in Section 22 (Limitation of Liability) states the overall combined liability of Bitsum and Bitsum Affiliate Distributors; (ii) the entering into Orders by a Bitsum Affiliate Distributor will not be deemed to expand Bitsum and its Affiliates’ overall responsibilities or liability under these General Terms; and (iii) Customer will have no right to recover more than once from the same event.
3. Your Contractors and Third-Party Providers
You may permit your authorized consultants, contractors, and agents (“Third-Party Providers”) to access and use your Purchased Offerings, but only on your behalf in connection with providing services to you, and subject to the terms and conditions of these General Terms. Any access or use by a Third-Party Provider will be subject to the same limitations and restrictions that apply to you under these General Terms, and you will be responsible for any Third-Party Provider’s actions relating to their use of the Offering. The aggregate use by you and all of your Third-Party Providers must not exceed the Capacity purchased, and nothing in this Section is intended to or will be deemed to increase such Capacity.
4. Hosted Services and Specific Offering Terms
- Service Levels. When you purchase Hosted Services as a Purchased Offering, we will make the applicable Hosted Services available to you during the Term in accordance with these General Terms. The Service Level Schedules (as identified in the Specific Offering Terms referenced in Section 4(F) below) and associated remedies will apply to the availability and uptime of the applicable Hosted Service. If applicable, service credits will be available for downtime in accordance with the Service Level Schedule.
- Connections. You are responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use Hosted Services, and for paying all associated charges.
- Your Responsibility for Data Protection. You are responsible for: (i) selecting from the security configurations and security options made available by Bitsum in connection with a Hosted Service; (ii) taking additional measures outside of the Hosted Service to the extent the Hosted Service Offering does not provide the controls that may be required or desired by you; and (iii) routine archiving and backing up of Customer Content. You agree to notify Bitsum promptly if you believe that an unauthorized third party may be using your accounts or if your account information is lost or stolen.
- Refund Upon Termination for Bitsum’s Breach. If a Hosted Service is terminated by you for Bitsum’s uncured material breach in accordance with these General Terms, Bitsum will refund you any prepaid subscription fees covering the remainder of the Term after the effective date of termination.
- Return of Customer Content. Customer Content may be retrieved by you and removed from the Hosted Services in accordance with the applicable Documentation. We will make the Customer Content available on the Hosted Services for thirty (30) days after termination of a subscription for your retrieval. After that thirty (30) day period, we will have no obligation to maintain the storage of your Customer Content, and you hereby authorize us thereafter to, and we will, unless legally prohibited, delete all remaining Customer Content. If you require assistance in connection with migration of your Customer Content, depending on the nature of the request, we may require a mutually agreed upon fee for assistance.
- Specific Offering Terms Specific security controls and certifications, data policies, service descriptions,
5. Support and Maintenance
The specific Support Program included with a Purchased Offering will be identified in the applicable Order. Bitsum will provide the purchased level of support and maintenance services in accordance with the terms of the Support Exhibit attached to these General Terms.
6. Configuration and Implementation Services
Bitsum offers standard services to implement and configure your Purchased Offerings. These services are purchased under an Order and are subject to the payment of the Fees therein and the terms of the Configuration and Implementation Services Exhibit attached to these General Terms.
7. Data Protection for Personal Data
Bitsum will follow globally recognized data protection principles and industry-leading standards for the security of personal data.
- Product Development Security. Bitsum will follow secure software development practices and applies an industry standard, risk-based approach to its software development lifecycle (“SDLC”), which includes, as applicable, such things as performing code signing, security architecture reviews, open source security scans, virus detection, dynamic application security testing, network vulnerability scans and external penetration testing in the development environment.
- B. Maintaining Protections. Notwithstanding anything to contrary in these General Terms, or any policy or terms referenced herein via hyperlink (or any update thereto), Bitsum may not, during a Term materially diminish the security protections set forth in these General Terms, or any applicable security addendum.
9. Use Restrictions
Except as expressly permitted in an Order, these General Terms or our Documentation, you agree not to (nor allow any user or Third Party Provider to): (a) reverse engineer (except to the extent specifically permitted by statutory law), decompile, disassemble or otherwise attempt to discover source code or underlying structures, ideas or algorithms of any Offering; (b) modify, translate or create derivative works based on the Offerings; (c) use an Offering for service bureau purposes, or for any purpose other than your own Internal Business Purposes; (d) resell, transfer or distribute any Offering; (e) access or use any Offering in order to monitor its availability, performance, or functionality for competitive purposes; (f) attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, Offerings; (g) separately use any of the applicable features and functionalities of the Offerings with external applications or code not furnished by Bitsum or any data not processed by the Offering; (h) exceed the Capacity purchased or (i) use any Offering in violation of all applicable laws and regulations (including but not limited to any applicable privacy and intellectual property laws).
10. Our Ethics, Compliance and Corporate Responsibility
- Ethics and Corporate Responsibility. Bitsum is committed to acting ethically and in compliance with applicable law, and we have policies and guidelines in place to provide awareness of, and compliance with, the laws and regulations that apply to our business globally. We are committed to ethical business conduct, and we use diligent efforts to perform in accordance with the highest global ethical principles.
- Anti-Corruption. We implement and maintain programs for compliance with applicable anti-corruption and anti-bribery laws. Bitsum policy prohibits the offering or soliciting of any illegal or improper bribe, kickback, payment, gift, or thing of value to or from any of your employees or agents in connection with these General Terms. If we learn of any violation of the above, we will use reasonable efforts to promptly notify you at the main contact address provided by you to Bitsum.
- Export. We certify that Bitsum is not on any of the relevant U.S. or EU government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List.
11. Usage Data
12. Capacity and Usage Verification
- Certification and Verification. At Bitsum’s request, you will furnish Bitsum a certification signed by your authorized representative verifying that your use of the Purchased Offering is in accordance with these General Terms and the applicable Order. For On-Premises Products, we may also ask you from time to time, but not more frequently than once per calendar period, to cooperate with us to verify usage and adherence to purchased Capacities. If Bitsum requests a verification process, you agree to provide Bitsum reasonable access to the On-Premises Product installed at your facility (or as hosted by your Third-Party Provider). If Bitsum does any verification, it will be performed with as little interference as possible to your use of the On-Premises Product and your business operations. Bitsum will comply with your (or your Third-Party Providers’) reasonable security procedures.
- Overages. If a verification or usage report reveals that you have exceeded the purchased Capacity or usage rights for your Purchased Offering (e.g., used as a service bureau) during the period reviewed, then we will have the right to invoice you using the applicable Fees at list price then in effect, which will be payable in accordance with these General Terms. Without limiting Bitsum’s foregoing rights, with respect to Hosted Services, Bitsum may work with you to reduce usage so that it conforms to the applicable usage limit, and we will in good faith discuss options to right size your subscription as appropriate. Notwithstanding anything to the contrary herein, Bitsum will have the right to directly invoice you for overages, regardless of whether you purchased the Purchased Offering from an authorized reseller or Digital Marketplace. See the Specific Offering Terms for any additional information related to overages for a Hosted Service.
13. Our Use of Open Source
Certain Offerings may contain Open Source Software. Bitsum makes available in the applicable Documentation a list of Open Source Software incorporated in our On-Premises Products as required by the respective Open Source Software licenses. Any Open Source Software that is delivered as part of your Offering and which may not be removed or used separately from the Offering is covered by the warranty, support and indemnification provisions applicable to the Offering. Some of the Open Source Software may have additional terms that apply to the use of the Offering (e.g., the obligation for us to provide attribution of the specific licensor), and those terms will be included in the Documentation; however, these terms will not (a) impose any additional restrictions on your use of the Offering, or (b) negate or amend any of our responsibilities with respect to the Offering.
14. Bitsum Developer Tools and Customer Extensions
Bitsum makes Bitsum Developer Tools available to you so you can develop Extensions for use with your Purchased Offerings (Extensions that you develop, “Customer Extensions”).
You have a nonexclusive, worldwide, nontransferable, nonsublicensable right, subject to the terms of these General Terms, to use Bitsum Developer Tools to develop your Customer Extensions, including to support interoperability between the Offering and your system or environment. Bitsum proprietary legends or notices contained in the Bitsum Developer Tools may not be removed or altered when used in or with your Customer Extension. You retain title to your Customer Extensions, subject to Bitsum’s ownership in our Offerings and any materials and technology provided by Bitsum in connection with the Bitsum Developer Tools. You agree to assume full responsibility for the performance and distribution of Customer Extensions.
16. Your Compliance
- Lawful Use of Offerings. When you access and use an Offering, you are responsible for complying with all laws, rules, and regulations applicable to your access and use. This includes being responsible for your Customer Content and users, for your users’ compliance with these General Terms, and the accuracy, lawful use of, and the means by which you acquired your Customer Content. You may not transmit and/or store PHI Data, PCI Data or ITAR Data within a Hosted Services unless you have specifically purchased a Purchased Offering for that applicable regulated Hosted Services environment (as identified in an Order).
- Registration. You agree to provide accurate and complete information when you register for and use any Offering and agree to keep this information current. Each person who uses any Offering must have a separate username and password. For Hosted Services, you must provide a valid email address for each person authorized to use your Hosted Services, and you may only have one person per username and password. Bitsum may reasonably require additional information in connection with certain Offerings (e.g., technical information necessary for your connection to a Hosted Service), and you will provide this information as reasonably requested by Bitsum. You are responsible for securing, protecting, and maintaining the confidentiality of your account usernames, passwords and access tokens.
- Export Compliance. You will comply with all applicable export laws and regulations of the United States and any other country (“Export Laws”) where your users use any of the Offerings. You certify that you are not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You will not export, re-export, ship, transfer or otherwise use the Offerings in any country subject to an embargo or other sanction by the United States, including, without limitation, Iran, Syria, Cuba, the Crimea Region of Ukraine, Sudan and North Korea, and you will not use any Offering for any purpose prohibited by the Export Laws.
- Acceptable Use. Without limiting any terms under these General Terms, you will also abide by our Hosted Services acceptable use policy: https://www.Bitsum.com/view/SP-CAAAMB6.
- Confidential Information. Each party will protect the Confidential Information of the other. Accordingly, Receiving Party agrees to: (i) protect the Disclosing Party’s Confidential Information using the same degree of care (but in no event less than reasonable care) that it uses to protect its own Confidential Information of a similar nature; (ii) limit use of Disclosing Party’s Confidential Information for purposes consistent with these General Terms, and (iii) use commercially reasonable efforts to limit access to Disclosing Party’s Confidential Information to its employees, contractors and agents or those of its Affiliates who have a bona fide need to access such Confidential Information for purposes consistent with these General Terms and who are subject to confidentiality obligations no less stringent than those herein.
- Compelled Disclosure of Confidential Information. Notwithstanding the foregoing terms, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law enforcement agencies or regulators to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
The payment terms below only apply when you purchase Offerings directly from Bitsum. When you purchase from an authorized reseller or Digital Marketplace, the payment terms are between you and the authorized reseller or Digital Marketplace. However, a breach of your payment obligations for an Offering with a Digital Marketplace will be deemed a breach of this Section 18.
- Fees. You agree to pay all Fees specified in the Orders. Fees are non-cancelable and non-refundable, except as otherwise expressly set forth in these General Terms. Without limiting any of our other rights or remedies herein, overdue charges may accrue interest monthly at the rate of 1.5% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. Fees are due and payable either within 30 days from the date of Bitsum’s invoice or as otherwise stated in the Order.
- Credit Cards. If you pay by credit, or debit card you: (i) will provide Bitsum or its designated third-party payment processor with valid credit or debit card information; and (ii) hereby authorize Bitsum or its designated third-party payment processor to charge such credit or debit card for all items listed in the applicable Order. Such charges must be paid in advance or in accordance with any different billing frequency stated in the applicable Order. You are responsible for providing complete and accurate billing and contact information and notifying Bitsum in a timely manner of any changes to such information.
- C. Taxes. All Fees quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. You are responsible for paying any taxes or similar government assessments (including, without limitation, value-added, sales, use or withholding taxes). We will be solely responsible for taxes assessable against us based on our net income, property, and employees.
19. Bitsum’s Warranties
- Relationship to Applicable Law. We will not seek to limit our liability, or any of your warranties, rights and remedies, to the extent the limits are not permitted by applicable law (e.g., warranties, remedies or liabilities that cannot be excluded by applicable law).
- General Corporate Warranty. Bitsum warrants that it has the legal power and authority to enter into these General Terms.
- Hosted Services Warranty. Bitsum warrants that during the applicable Term: (i) Bitsum will not materially decrease the overall functionality of the Hosted Services; and (ii) the Hosted Services will perform materially in accordance with the applicable Documentation. Our sole and exclusive liability, and your sole and exclusive remedy for any breach of these warranties, will be your right to terminate the applicable Hosted Services Purchased Offering, and we will refund to you any prepaid but unused Fees for the remainder of the Term.
- On-Premises Product Warranty. Bitsum warrants that for a period of ninety (90) days from the Delivery of an On-Premises Product, the On-Premises Product will substantially perform the material functions described in the applicable Documentation for such On-Premises Product, when used in accordance with the applicable Documentation. Bitsum’s sole liability, and your sole remedy, for any failure of the On-Premises Product to conform to the foregoing warranty, is for Bitsum to do one of the following (at Bitsum’s sole option and discretion) (i) modify, or provide an Enhancement for, the On-Premises Product so that it conforms to the foregoing warranty, (ii) replace your copy of the On-Premises Product with a copy that conforms to the foregoing warranty, or (iii) terminate the Purchased Offering with respect to the non-conforming On-Premises Product and refund the Fees paid by you for such non-conforming On-Premises Product.
- Disclaimer of Implied Warranties. Except as expressly set forth above, the Offerings are provided “as is” with no warranties or representations whatsoever express or implied. Bitsum and its suppliers and licensors disclaim all warranties and representations, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, noninfringement, or quiet enjoyment, and any warranties arising out of course of dealing or trade usage. Bitsum does not warrant that use of Offerings will be uninterrupted, error free or secure, or that all defects will be corrected.
- Offerings. As between you and Bitsum, Bitsum owns and reserves all right, title, and interest in and to the Offerings, developer tools and other Bitsum materials, including all intellectual property rights therein. We retain rights in anything delivered or developed by us or on our behalf under these General Terms. No rights are granted to you other than as expressly set forth in these General Terms.
- Customer Content. You own and reserve all right, title and interest in your Customer Content. By sending Customer Content to a Hosted Service, you grant us a worldwide, royalty free, non-exclusive license to access and use the Customer Content for purposes of providing you the Hosted Service.
- Feedback. You have no obligation to provide us with ideas for improvement, suggestions, or other feedback (collectively, “Feedback”) in connection with an Offering, unless otherwise expressly set forth in the applicable Order. If, however, you provide any Feedback, you hereby grant to Bitsum a non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise commercially exploit the Feedback.
21. Term and Termination
- Term and Renewal. These General Terms will commence upon the Effective Date and will remain in effect until the expiration of all applicable Purchased Offerings, unless earlier terminated pursuant to this Section. Termination of a specific Purchased Offering will not affect the Term of any other Purchased Offering. Termination of these General Terms will have the effect of terminating all Purchased Offerings. Grounds for terminating a Purchased Offering (e.g., for non-payment), that are specific to the Purchased Offering, will not be grounds to terminate Purchased Offerings where no breach exists. Unless indicated otherwise in an Order, the Term of a Purchased Offering (and these General Terms) will automatically renew for an additional period of time equal to the length of the preceding Term, unless one party notifies the other of its intent not to renew at least one (1) day in advance of the expiration of the Term or then-current renewal period.
- Termination. Either party may terminate these General Terms, or any Purchased Offering, by written notice to the other party in the event of a material breach of these General Terms, or the specific terms associated with that Purchased Offering, that is not cured within thirty (30) days of receipt of the notice. Upon any expiration or termination of a Purchased Offering, the rights and licenses granted to you for that Purchased Offering will automatically terminate, and you agree to immediately (i) cease using and accessing the Offering, (ii) return or destroy all copies of any On-Premises Products and other Bitsum materials and Bitsum Confidential Information in your possession or control, and (iii) upon our request, certify in writing the completion of such return or destruction. Upon termination of these General Terms or any Purchased Offering, Bitsum will have no obligation to refund any Fees or other amounts received from you during the Term. Notwithstanding any early termination above, except for your termination for our uncured material breach, you will still be required to pay all Fees payable under an Order.
- Survival. The termination or expiration of these General Terms will not affect any provisions herein which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, ownership of intellectual property, confidentiality, payment obligations, effect of termination, limitation of liability, privacy, and the “Miscellaneous” section in these General Terms.
- Suspension of Service. In the event of a material breach or threatened material breach of this Agreement, Bitsum may, without limiting its other rights and remedies, suspend your use of the Hosted Service until such breach is cured or Bitsum reasonably believes there is no longer a threat, provided that, we will give you at least five (5) days’ prior notice before suspension. Suspension of a Hosted Service will have no impact on the duration of the Term of the Purchased Offering, or the associated Fees owed.
22. Limitation of Liability
In no event will the aggregate liability of either party, together with any of its Affiliates, arising out of or related to any Purchased Offering exceed the total amount paid by you for that Purchased Offering in the twelve (12) months preceding the first incident out of which the liability arose. However, the foregoing limitation will not limit your obligations under the “Payment” section above and will not be deemed to limit your rights to any service level credits under any applicable Service Level Schedule. Furthermore, the cap above will not be deemed to limit Bitsum’s right to recover amounts for your use of an Offering in excess of the Capacity purchased or use outside of Internal Business Purposes.
In no event will either party or its Affiliates have any liability arising out of or related to these General Terms for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages.
The foregoing limitations will apply whether the action is in contract or tort and regardless of the theory of liability, even if a party or its Affiliates have been advised of the possibility of such damages or if a party’s or its Affiliates’ remedy otherwise fails of its essential purpose.
The limitation of liability herein will not apply to a party’s infringement of the other party’s intellectual property rights, indemnification obligations, or the fraud, gross negligence or willful misconduct of a party.
The foregoing disclaimers of damages will also not apply to the extent prohibited by law. Some jurisdictions do not allow the exclusion or limitation of certain damages. To the extent such a law applies to you, some or all of the exclusions or limitations set forth above may not apply to you, and you may have additional rights.
- Our Indemnification to You. Bitsum will defend and indemnify you, and pay all damages (including attorneys’ fees and costs) awarded against you, or that are agreed to in a settlement, to the extent a claim, demand, suit or proceeding is made or brought against you or your Affiliates by a third party (including those brought by a government entity) alleging that a Purchased Offering infringes or misappropriates such third party’s patent, copyright, trademark or trade secret (a “Customer Claim”). Bitsum will have no obligation under the foregoing provision to the extent a Customer Claim arises from your breach of these General Terms, your Customer Content, Third-Party Extension, or the combination of the Offering with: (i) Customer Content; (ii) Third-Party Extensions; (iii) any software other than software provided by Bitsum; or (iv) any hardware or equipment. However, Bitsum will indemnify against combination claims to the extent (y) the combined software is necessary for the normal operation of the Purchased Offering (e.g., an operating system), or (z) the Purchased Offering provides substantially all the essential elements of the asserted infringement or misappropriation claim. Bitsum may in its sole discretion and at no cost to you: (1) modify any Purchased Offering so that it no longer infringes or misappropriates a third party right, (2) obtain a license for your continued use of the Purchased Offering, in accordance with these General Terms, or (3) terminate the Purchased Offering and refund to you any prepaid fees covering the unexpired Term.
- Your Indemnification to Us. Unless expressly prohibited by applicable law, you will defend and indemnify us, and pay all damages (including attorneys’ fees and costs) awarded against Bitsum, or that are agreed to in a settlement, to the extent a claim, demand, suit or proceeding is made or brought against Bitsum or its Affiliates by a third party (including those brought by a government entity) that: (i) alleges that your Customer Content or Customer Extensions infringes or misappropriates such third party’s patent, copyright, trademark or trade secret, or violates another right of a third party; or (ii) alleges that your Customer Content or your use of any Offering violates applicable law or regulation.
- Mutual Indemnity. Each party will defend, indemnify and pay all damages (including attorneys’ fees and costs) awarded against the other party, or that are agreed to in a settlement to the extent that an action brought against the other party by a third party is based upon a claim for bodily injury (including death) to any person, or damage to tangible property resulting from the negligent acts or willful misconduct of the indemnifying party or its personnel hereunder, and will pay any reasonable, direct, out-of-pocket costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against the indemnified party (or are payable in settlement by the indemnified party).
- Process for Indemnification. The indemnification obligations above are subject to the party seeking indemnification to: (i) provide the other party with prompt written notice of the specific claim; (ii) give the indemnifying party sole control of the defense and settlement of the claim (except that the indemnifying party may not settle any claim that requires any action or forbearance on the indemnified party’s part without their prior consent, which will not unreasonably withhold or delay); and (iii) gives the indemnifying party all reasonable assistance, at such party’s expense.
24. Updates to Offerings
Our Offerings and policies may be updated over the course of our relationship. From time to time, Bitsum may update or modify an Offering and our policies, provided that: (a) the change and modification applies to all customers generally, and are not targeted to any particular customer; (b) no such change or modification will impose additional fees on you during the applicable Term or additional restrictions on your use of the Offering, (c) no such change will override or supersede the allocation of risk between us under these General Terms, including without limitation the terms under Sections 22 (Limitation of Liability) and 23 (Indemnity); (d) no such change or modification will materially reduce the security protections or overall functionality of the applicable Offering; and (e) any such change or modification will apply only prospectively, and will not apply to any breach or dispute that arose between the parties prior to the effective date of the change or modification. In the event of any conflict between these General Terms and the policies incorporated herein by reference, these General Terms will control.
25. Governing Law
These General Terms will be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under these General Terms will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby consent to personal jurisdiction and venue therein. Bitsum may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of intellectual property or other proprietary rights of Bitsum, its Affiliates, or any third party.
Neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods will apply to these General Terms.
26. Use of Customer Name
You agree that we may add your name to our customer list and identify you as a Bitsum customer on Bitsum’s websites. Any further public use of your name in connection with Bitsum marketing activities (e.g., press releases) will require your prior approval.
- Different Terms. Bitsum expressly rejects terms or conditions in any Customer purchase order or other similar document that are different from or additional to the terms and conditions set forth in these General Terms. Such different or additional terms and conditions will not become a part of the agreement between the parties notwithstanding any subsequent acknowledgement, invoice or license key that Bitsum may issue.
- No Future Functionality. You agree that your purchase of any Offering is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by Bitsum regarding future functionality or features.
- Notices. Except as otherwise specified in these General Terms, all notices related to these General Terms will be sent in writing to the addresses set forth in the applicable Order, or to such other address as may be specified by either party to the other party, and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (iii), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant system administrator designated by Customer.
- Assignment. Neither party may assign, delegate, or transfer these General Terms, in whole or in part, by agreement, operation of law or otherwise without the prior written consent of the other party, however Bitsum may assign these General Terms in whole or in part to an Affiliate or in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of Bitsum’s assets to which these General Terms relates. Any attempt to assign these General Terms other than as permitted herein will be null and void. Subject to the foregoing, these General Terms will bind and inure to the benefit of the parties’ permitted successors and assigns.
- U.S. Government Use Terms. Bitsum provides Offerings for U.S. federal government end use solely in accordance with the following: Government technical data and rights related to Offerings include only those rights customarily provided to the public as defined in these General Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFARS 252.227-7015 (Technical Data–Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Bitsum to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
- Waiver; Severability. The waiver by either party of a breach of or a default under these General Terms will not be effective unless in writing. The failure by either party to enforce any provisions of these General Terms will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of these General Terms invalid or unenforceable, the remaining provisions of these General Terms will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
- Integration; Entire Agreement. These General Terms along with any additional terms incorporated herein by reference, constitute the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Except as otherwise expressly set forth herein, any waiver, modification, or amendment of any provision of these General Terms will be effective only if in writing and signed by duly authorized representatives of both parties.
- Force Majeure. Neither party or its Affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors will (except for the obligation to make any payments) be liable for any delay or failure to perform any obligation under these General Terms where the delay or failure results from any cause beyond their reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockades, embargoes, riots, acts or orders of government, acts of terrorism, or war.
- Independent Contractors; No Third-Party Beneficiaries. The parties are independent contractors. These General Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries of these General Terms. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise.
General Terms Definitions Exhibit
“Affiliates” means a corporation, partnership or other entity controlling, controlled by or under common control with such party, but only so long as such control continues to exist. For purposes of this definition, “control” means ownership, directly or indirectly, of greater than fifty percent (50%) of the voting rights in such entity (or, in the case of a noncorporate entity, equivalent rights).
“Capacity” means the measurement of usage of an Offering (e.g., aggregate daily volume of data indexed, specific source type rights, number of search and compute units, number of monitored accounts, virtual CPUs, user seats, use cases, storage capacity, etc.) that is purchased for an Offering, as set forth in the applicable Order.
“CCPA” means the California Consumer Privacy Act of 2018.
“Confidential Information” means all nonpublic information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as “confidential” or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. Notwithstanding the foregoing, “Confidential Information” does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
“Content Subscription” means the right of Customer to receive content applicable to an Offering (e.g., models, templates, searches, playbooks, rules and configurations, as described in the relevant Documentation) on a periodic basis over the applicable Term. Content Subscriptions are purchased as an add-on service and are identified in an Order.
“Customer Content” means any data that is ingested by or on behalf of you into an Offering from your internal data sources.
“Delivery” means the date of Bitsum’s initial delivery of the license key for the applicable Offering or, for Hosted Services, the date Bitsum makes the applicable Offering available to you for access and use.
“Digital Marketplace” means an online or electronic marketplace operated or controlled by a third party where Bitsum has authorized the marketing and distribution of its Offerings.
“Documentation” means the online user guides, documentation and help and training materials published on Bitsum’s website or accessible through the applicable Offering, as may be updated by Bitsum from time to time.
“Enhancements” means any updates, upgrades, releases, fixes, enhancements, or modifications to a Purchased Offering made generally commercially available by Bitsum to its customers under the terms and conditions in the Support Exhibit.
“Extension” means any separately downloadable or accessible suite, configuration file, add-on, technical add-on, plug-in, example module, command, function, playbook, content or application that extends the features or functionality of the applicable Offering.
“Fees” means the fees that are applicable to an Offering, as identified in the Order.
“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data) as updated, amended or replaced from time to time.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and supplemented by the Health Information Technology for Economic and Clinical Health Act.
“Hosted Service” means a technology service hosted by or on behalf of Bitsum and provided to you.
“Internal Business Purpose” means your use of an Offering for your own internal business operations, based on the analysis, monitoring or processing of your data from your systems, networks, and devices. Such use does not include use on a service bureau basis or otherwise to provide services to, or process data for, any third party, or otherwise use to monitor or service the systems, networks and devices of third parties.
“ITAR Data” means information protected by the International Traffic in Arms Regulations.
“Nonprofit” means a U.S. Federal 501(c)(3), tax-exempt, nonprofit corporation or association (or other nonprofit entity organized in accordance with the laws of where your nonprofit entity is registered) that has qualified for a free, donated Offering in connection with a Bitsum donation program.
“Offerings” means the products, services, and other offerings that Bitsum makes generally available, including without limitation On-Premises Products, Hosted Services, Support Programs, Content Subscriptions and Configuration and Implementation Services.
“On-Premise Product” means the Bitsum software that is delivered to you and deployed and operated by you or on your behalf on hardware designated by you, and any Enhancements made available to you by Bitsum.
“Open Source Software” means software that is licensed under a license approved by the Open Source Initiative or similar freeware license, with terms requiring that such software code be (i) disclosed or distributed in source code or object code form, (ii) licensed for the purpose of making derivative works, and/or (iii) redistributed under the same license terms.
“Orders” means Bitsum’s quote or ordering document (including online order form) accepted by you via your purchase order or other ordering document submitted to Bitsum (directly or indirectly through an authorized reseller or Digital Marketplace) to order Offerings, which references the Offering, Capacity, pricing and other applicable terms set forth in an applicable Bitsum quote or ordering document. Orders do not include the terms of any preprinted terms on your purchase order or other terms on a purchase order that are additional or inconsistent with the terms of these General Terms.
“PCI Data” means credit card information within the scope of the Payment Card Industry Data Security Standard.
“PHI Data” means any protected health data, as defined under HIPAA.
“Purchased Offerings” means the services, subscriptions and licenses to Offerings that are acquired by you under Orders, whether directly or through an authorized reseller or Digital Marketplace.
“Service Level Schedule” means a Bitsum policy that applies to the availability and uptime of a Hosted Service and which, if applicable, offers service credits as set forth therein.
“Bitsum Developer Tool” means the standard application programming interface, configurations, software development kits, libraries, command line interface tools, other tooling (including scaffolding and data generation tools), integrated development environment plug-ins or extensions, code examples, tutorials, reference guides and other related materials identified and provided by Bitsum to facilitate or enable the creation of Extensions or otherwise support interoperability between the Software and your system or environment.
“Bitsum Extensions” means Extensions made available through Bitsumbase that are identified on Bitsumbase as built by Bitsum (and not by any third party).
“Support Programs” are the Support Programs offered by Bitsum.
“Term” means the duration of your subscription or license to the applicable Offering that starts and ends on the date listed on the applicable Order. If no start date is specified in an Order, the start date will be the Delivery date of the Offering.
“Third Party Content” means information, data, technology, or materials made available to you by any third party that you license and add to a Hosted Service or direct Bitsum to install in connection with a Hosted Service. Third-Party Content includes but is not limited to, Third-Party Extensions, web-based or offline software applications, data service or content that are provided by third parties.
“Usage Data” means data generated from the usage, configuration, deployment, access, and performance of an Offering. For example, this may include such things as information about your operating environment, such as your network and systems architecture, or sessions, such as page loads and session views, duration, or interactions, errors, number of searches, source types and format (e.g., json, xml, csv), ingest volume, number of active and licensed users, or search concurrency. Usage Data does not include Customer Content.
Support Exhibit to Bitsum General Terms
This Support Exhibit forms a part of the Bitsum General Terms and governs your purchase, and Bitsum’s provision of Support Services.
- Support Programs
Support Programs purchased as part of a Purchased Offering will be identified in your applicable Order. Bitsum will provide you the level of Support Services described under the purchased Support Program, subject to your payment of applicable Fees.
- Support Services
“Support Services” include technical support for your Purchased Offerings, and, when available, the provision of Enhancements for your Purchased Offerings, subject to the Support Policy described below. Technical support under a Support Program is available via web portal, and certain Support Programs also make support available via telephone. Support Services will be delivered by a member of Bitsum’s technical support team during the regional hours of operation applicable under the Support Program. Support Services are delivered in English unless you are in a location where we have made localized Support Services available.
- Support Policy
Our Support Policy (“Support Policy”) describes the duration of our Support Services for certain Bitsum Products and other policies associated with our Support Services.
As we release new versions for our Offerings, we discontinue Support Services for certain older versions. Our Support Policy sets forth the schedule for the duration of support, and end of support, for Offering versions. The current versions of our Offerings that are supported under our Support Policy and will be our “Supported Versions” herein. The Support Policy may not apply to Hosted Services, and the product and services version we make available as our Hosted Services will be deemed Supported Versions herein.
- Case Priority
Each Support Program offers different support levels for your case priority levels. When submitting a case, you will select the priority for initial response by logging the case online, in accordance with the priority guidelines set forth under your Support Program. When the case is received, we may in good faith change the priority if the issue does not conform to the criteria for the selected priority. When that happens, we will provide you with notice (electronic or otherwise) of such change.
We will have no obligation to provide support for issues caused by any of the following (each, a “Customer Generated Error”): (i) modifications to an Offering not made by Bitsum; (ii) use of an Offering other than as authorized in the General Terms or as provided in the applicable Documentation; (iii) damage to the machine on which an On-Premises Product is installed; (iv) use of a version of an Offering other than the Supported Version; (v) third-party products that are not expressly noted in the Documentation as supported by Bitsum; or (vi) conflicts related to replacing or installing hardware, drivers, and software that are not expressly supported by Bitsum and described in the applicable Documentation. If we determine that support requested by you is for an issue caused by a Customer Generated Error, we will notify you of that fact as soon as reasonably possible under the circumstances. If you agree that we should provide support for the Customer Generated Error via a confirming email, then we will have the right to invoice you at our then-current time and materials rates for any such support provided by us.
- Support for Bitsum Extensions
Only Bitsum Extensions that are labeled as “Bitsum Supported” on Bitsumbase, or other Bitsum-branded marketplace, are eligible for support, and this support is limited. For those labeled Bitsum Supported, we will provide an initial response and acknowledgement in accordance with the P3 terms that are applicable in the applicable Support Program, and Enhancements may be made available. No other terms of a Support Program will apply to a Bitsum Application. For those labeled as “Not Supported,” Bitsum will have no support obligations.
- Authorized Support Contacts
You are entitled to have a certain number of Support Contacts under each Support Program. “Support Contacts” means the individual(s) specified by you that are authorized to submit support cases.
The number of Support Contacts will be based on the Capacity of the Offering purchased, and the applicable Support Program. The number of Support Contacts will be set forth in customer’s entitlement information on the Bitsum support portal.
We only take support requests from, and communicate with, your Support Contacts in connection with support cases. We strongly recommend that your Support Contact(s) are trained on the applicable Offering. In order to designate Support Contacts, you must provide the individual’s primary email address and Bitsum.com login ID.
- Defect Resolution
Should we determine that an Offering has a defect, we will, at our sole option, repair the defect in the version of the Offering that you are then currently using or instruct you to install a newer version of the Offering with that defect repaired. We reserve the right to provide you with a workaround in lieu of fixing a defect should we in our sole judgment determine that it is more effective to do so.
- Your Assistance
Should you report a purported defect or error in an Offering, we may require you to provide us with the following information: (a) a general description of your operating environment; (b) a list of all hardware components, operating systems and networks; (c) a reproducible test case; and (d) any log files, trace and systems files. Your failure to provide this information may prevent us from identifying and fixing that purported defect.
- Changes to Support Programs
You acknowledge that, subject to the Support Policy, and subject to any commitment we have during the Term, we have the right to discontinue the manufacture, development, sale or support of any Offering, at any time, in our sole discretion. We further reserve the right to alter Support Programs from time to time, using reasonable discretion, but in no event will such alterations, during the Term of any Order, result in diminished Support Services from the level of your applicable purchased Support Program.