Bitbu Services Agreement
Posted: February 15, 2023
Effective: February 17, 2023
You can see the previous Business Agreement here.
This Bitbu Services Agreement (the "BSA") is between the applicable Bitbu entity set forth in Appendix 1 ("Bitbu") and the organization agreeing to these terms ("Customer"). Bitbu and Customer are each referred to as a “Party” and collectively as the “Parties.” This BSA governs access to and use of the Services and any Beta Services. This BSA, any Service-Specific Terms, each applicable Order Form, the Data Processing Agreement and, if applicable, the HIPAA Business Associate Agreement are collectively referred to as the "Agreement." By clicking "I agree," signing your Order Form for the Services, or using the Services, you agree to the Agreement as a Customer.
If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the Services.
Provision. The Agreement governs access to, and use of the Services. Customer may access and use the Services in accordance with the Agreement.
Service-Specific Terms. Certain Services, or portions thereof, may be subject to additional terms, including third party terms and conditions, that are specific to the particular Services and are set forth in the Service-Specific Terms. By accessing or using Services covered by any Service-Specific Terms, you agree to the applicable Service-Specific Terms. If there is a conflict between these Terms and the Service-Specific Terms, the Service-Specific Terms will control with respect to the applicable Services or portions thereof.
Modifications. Bitbu may update the Services from time to time. If Bitbu changes the Services in a manner that materially reduces their functionality, Bitbu will notify Customer at the email address associated with the account, and Customer may provide notice within thirty days of the change to terminate the Agreement. This termination right will not apply to updates made to features provided on a beta or evaluation basis. Without limiting the foregoing, from time to time, Bitbu may add additional features to enhance the user experience of the Services at no additional charge. However, these free features may be withdrawn without further notices.
Services Term. Unless otherwise set forth on the Order Form, the Services are sold on a subscription basis. Bitbu will deliver the Services to Customer for the Services Term. Unless the parties agree otherwise in writing, any increases in quantities of Services purchased during any Services Term will have a prorated term ending on the last day of the pre-existing Services Term.
Automatic Renewals. Unless otherwise specified on the Order Form, following the Initial Services Term or a Renewal Term, Customer’s subscription to the Services will automatically renew for a Renewal Term at the then-current quantity or subscription tier, unless either Party gives the other written notice of termination at least thirty days prior to the expiration of the then-current Services term. If Customer has purchased the Services online via a self-serve mechanism and provided a payment method to Bitbu for recurring charges, Customer may elect to terminate the Agreement via the My Account page prior to the day a Renewal Term begins.
Registration. Account information must be accurate, current, and complete, and Customer agrees to keep this information up-to-date.
Restrictions. Customer will not: (a) sell, resell, or lease the Services; (b) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; (c) reverse engineer the Services, or attempt or assist anyone else to do so, unless this restriction is prohibited by law; (d) use the Services, including the export or re-export of Customer Data, in violation of Export Control Laws; (e) violate or circumvent any Service Limits of the Services or otherwise configure the Services to avoid Service Limits; (f) access the Services for the purpose of building a competitive product or service or copying its features or user interface; (g) use the Services for evaluation, benchmarking, or other comparative analysis intended for publication without Bitbu’s prior written consent; (h) remove or obscure any proprietary or other notices contained in the Services, including in any reports or output obtained from the Services; (i) use or permit the Services to be used for any illegal or misleading purpose; or (j) establish an account on the Services as an individual for personal, family, or household purposes.
Compliance. Customer must use the Services in compliance with the Acceptable Use Policy. Customer will comply with laws and regulations applicable to Customer's use of the Services. Customer will not take any action that would cause Bitbu to violate EU Data Protection Laws, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010, or any other applicable data protection, anti-bribery, anti-corruption, or anti-money laundering law. Customer must satisfy itself that: (i) the Services are appropriate for its purposes, taking into account the nature of the Customer Data; and (ii) the technical and organizational requirements applicable to Bitbu under EU Data Protection Laws or other data protection laws, if applicable, are satisfied by the Security Measures and the Agreement.
HIPAA. If Customer will store, transmit or otherwise process any information via the Services that falls within the definition of “Protected Health Information” under the HIPAA Privacy Rule (45 C.F.R. Section 164.051), Customer must separately enter into a HIPAA Business Associate Agreement with Bitbu prior to storing, transmitting, or otherwise processing this information. NOTWITHSTANDING THE FOREGOING, NOT ALL SERVICES OFFERED BY BITBU ARE DESIGNED FOR PROCESSING PROTECTED HEALTH INFORMATION. IF CUSTOMER USES A SERVICE THAT IS NOT DESIGNED FOR PROCESSING PROTECTED HEALTH INFORMATION OR HAS NOT ENTERED INTO THE HIPAA BUSINESS ASSOCIATE AGREEMENT, CUSTOMER MAY NOT USE THE SERVICES TO STORE, TRANSMIT, OR PROCESS THIS INFORMATION.
Third-Party Apps and Integrations. If Customer uses any third-party service or applications, with the Services: (a) Bitbu will not be responsible for any act or omission of the third-party, including the third-party’s access to or use of Customer Data; and (b) Bitbu does not warrant or support any service provided by the third-party.
Customer Data Use. This Agreement constitutes Customer’s instructions to Bitbu to Process Customer Data. Bitbu, Bitbu personnel and its Subcontractors will only Process, access, use, store, and transfer Customer Data as Customer instructs in order to deliver the Services and to fulfill Bitbu’s obligations in the Agreement. If Customer accesses or uses multiple Services, Customer acknowledges and agrees that Bitbu may transfer Customer Data between those Services. The categories of Personal Data to be processed by Bitbu and the processing activities to be performed under this Agreement are set out in the Data Processing Agreement. Bitbu will inform Customer of any legal requirement which prevents it from complying with Customer’s instructions, unless prohibited from doing so by applicable law or on important grounds of public interest. Any Bitbu personnel who have access to Customer Data will be bound by appropriate confidentiality obligations.
Security Measures. Bitbu will use industry standard technical and organizational Security Measures to transfer, store, and Process Customer Data. Customers can find additional information regarding Bitbu’s security practices for the applicable Services by reviewing any applicable Security Resources. Bitbu may update the Security Measures from time to time. Bitbu will provide Customer with at least sixty days prior notice if Bitbu updates the Security Measures in a manner that materially diminishes the administrative, technical, or physical security features of the Services taken as a whole. Within five business days of receipt of this notice, Customer may elect to terminate the Agreement and associated Order Forms by providing written notice to Bitbu.
Customer Responsibility. Customer is responsible for responding to Third-Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third-Party Requests and will contact Bitbu only if it cannot comply with the Third-Party Request despite diligent efforts.
Bitbu Responsibility. If Bitbu receives a Third-Party Request, Bitbu will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-Party Request, to: (i) promptly notify Customer of Bitbu’s receipt of a Third-Party Request; (ii) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third-Party Request; and (iii) provide Customer with information or tools required for Customer to respond to the Third-Party Request, if Customer is otherwise unable to respond to the Third-Party Request. If Bitbu is prohibited from notifying Customer of a Third-Party Request or Customer fails to promptly respond to any Third-Party Request, then Bitbu may, but will not be obligated to do so, to the extent permitted by applicable law.
Customer Data Sharing. The Services may enable End Users to share Customer Data, including to other Customer End Users and to third parties. Recipients of shared Customer Data may access, view, download, and share this Customer Data, including in and through their own Services accounts. Customer understands: (a) it is solely Customer’s choice to share Customer Data; (b) Bitbu cannot control third parties with whom Customer has shared Customer Data; and (c) Customer and its End Users are solely responsible for their use of the Services, including any sharing of Customer Data through the Services. Certain Account Data such as End Users’ names, profile pictures, or contact information may be viewable by other customers and users with whom End Users collaborate and by the entity that has authority to control a corporate email domain if you purchase the Services using an email address on that domain.
Data Transfer. Customer agrees that Bitbu and its Subcontractors may transfer Customer Data to and access, use, and store Customer Data in locations other than Customer’s country.
Aggregate/Anonymous Data. Customer agrees that Bitbu will have the right to generate aggregate and anonymous data based on Customer’s use of the Services and this data is owned by Bitbu. Bitbu may use this data for its business purposes during or after the term of this Agreement (including without limitation to develop and improve Bitbu’s products and services and to create and distribute reports and other materials). For clarity, Bitbu will not disclose any aggregate or anonymous data externally in a manner that could reasonably identify Customer. Customer is not responsible for Bitbu’s use of aggregate or anonymous data.
Takedown Requests. If Customer receives any take down requests or infringement notices related to Customer Data, it must promptly: (i) stop using the related item with the Services; and (ii) notify Bitbu. If Bitbu receives any take down requests or infringement notices related to Customer Data, Bitbu may respond in accordance with its policies, and will notify and consult with the Customer on next steps.
Data Processing Agreement. To the extent Customer Data comprises Personal Data that is processed by Bitbu on Customer’s behalf, Customer and Bitbu agree to the Data Processing Agreement. The Data Processing Agreement applies only to the Services, and does not apply to Beta Services.
Use and Non-Disclosure. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Each Party, as the Receiving Party, will: (i) take reasonable measures to protect the Disclosing Party’s Confidential Information including at least those measures it takes to protect its own confidential information of a similar nature; and (ii) not disclose Confidential Information to any third parties. A Party may disclose Confidential Information to its employees, advisors and consultants who have a need to know the Confidential Information, if that employee, advisor or consultant is bound to restrictions at least as protective of the other Party’s Confidential Information as those set forth in this Agreement.
Exceptions. Confidential Information does not include information that: (i) is or becomes generally known or available to the public, through no act or omission of the Receiving Party; (ii) was known, without restriction, prior to receiving it from the disclosing Party; (iii) is rightfully acquired from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; (iv) or is independently developed without access to any Confidential Information of the Disclosing Party.
Permitted Disclosure. A Party may disclose Confidential Information to the extent required by any law or regulation if it gives the other Party reasonable advance notice, to the extent permitted, so that the other Party can seek to prevent or limit such disclosure. Notwithstanding the foregoing, the Parties’ obligations with respect to Third Party Requests are specifically addressed in Section 4.4.
Remedies. The Receiving Party acknowledges that a disclosure of Confidential Information in violation of these terms would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Fees. Customer will pay Bitbu, in the currency and pursuant to the payment terms indicated on the Order Form, or in the applicable agreement between Customer. Customer authorizes Bitbu to charge Customer for all applicable Fees using Customer's selected payment method, and Customer will issue the required purchasing documentation. Fees are non-refundable except as required by law or as otherwise specifically permitted in the Agreement.
Payment. Customer will pay Bitbu invoices on the payment interval set forth in the Order Form. Bitbu may suspend or terminate the Services if Fees are past due. Customer will provide complete and accurate billing and contact information to Bitbu.
Taxes. Fees are exclusive of taxes and Customer is responsible for all Taxes. Bitbu will charge Taxes when required to do so. If Customer provides Bitbu or its reseller with a valid exemption certificate, Bitbu will not collect the taxes covered by that certificate.
Withholding Taxes. Customer will pay Bitbu or its reseller net of any applicable Withholding Taxes. Customer and Bitbu, if applicable, will work together to avoid any Withholding Tax if exemptions, or a reduced treaty withholding rate, are available. If Bitbu qualifies for a tax exemption, or a reduced treaty withholding rate, Bitbu will provide Customer with reasonable documentary proof. Customer will provide Bitbu reasonable evidence that it has paid the relevant authority for the sum withheld or deducted.
Auto-renewals and Trials. IF CUSTOMER HAS ALREADY PROVIDED A PAYMENT METHOD TO BITBU FOR RECURRING CHARGES AND CUSTOMER’S ACCOUNT IS SET TO AUTO-RENEWAL, BITBU MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES BITBU THAT CUSTOMER WANTS TO DISABLEAUTO-RENEWAL OR CANCEL THE SERVICES IN ACCORDANCE WITH SECTION 2.2. Bitbu may revise Services rates by providing the Customer at least thirty days' notice prior to the next charge.
Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer: (i) must provide the purchase order number at the time of purchase; and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
No Refunds. Subscription and usage or overage Fees are non-refundable and non-creditable, except where required by law. Bitbu subscriptions may be cancelled, and such cancellations take effect at the end of your then-current subscription term (for example, if Customer is on a paid monthly subscription the cancellation will take effect the following month, but if Customer is on a paid yearly subscription the cancellation will take effect the following year).
Of the Services. Bitbu may suspend Customer’s access to the Services if: (i) Customer’s account is overdue; or (ii) Customer has exceeded any Service Limits. Bitbu may also suspend Customer’s access to the Services or remove Customer Data if it determines that: (a) Customer has breached any portion of this Agreement, or (b) suspension is necessary to prevent a Security Emergency, provided that Bitbu will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. Bitbu will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 7.2. However, unless this Agreement has been terminated, Bitbu will cooperate with Customer to promptly restore access to the Services once it verifies that Customer has resolved the condition requiring suspension.
Intellectual Property Rights.
Reservation of Rights. Except as expressly set forth herein, the Agreement does not grant: (a) Bitbu any Intellectual Property Rights in Customer Data; or (b) Customer any Intellectual Property Rights in the Services or Bitbu trademarks and brand features. Customer acknowledges that it is obtaining only a limited right to use the Services and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer (or its End Users) under this Agreement.
Limited Permission. Customer grants Bitbu only the limited rights that are reasonably necessary for Bitbu to deliver the Services. This limited permission also extends to Subcontractors or Sub-processors.
Feedback. Bitbu may use, modify, and incorporate into its products and services, license and sublicense, any Feedback that Customer may provide without any obligation to Customer. Customer agrees to: (i) and hereby does, assign to Bitbu all right, title, and interest in any Feedback; and (ii) provide Bitbu any reasonable assistance necessary to document and maintain Bitbu’s rights in the Feedback.
Term & Termination.
Agreement Term. The Agreement will remain in effect for the Term.
Termination. Either Party may terminate the Agreement, including all Order Forms, if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days. Bitbu may terminate this Agreement and suspend Customer’s access to the Services if required to do so by law or for an egregious violation by Customer of the Acceptable Use Policy.
Effects of Termination. If the Agreement terminates: (a) except as set forth in this Section, the rights and licenses granted by Bitbu to Customer will cease immediately; (b) Customer will delete (or, at Bitbu’s request, return) any and all copies of any Bitbu code, documentation, passwords or access codes, and any other Bitbu Confidential Information in Customer’s possession, custody, or control; (c) Customer may, prior to termination, request reasonable additional time to export its Stored Data, provided that Bitbu may charge Customer for this extended access based on Bitbu’s then-current standard fees; and (d) Bitbu will delete any Account and Stored Data in Customer’s account in a commercially reasonable period of time following receipt of an Administrator’s request to do so prior to termination of the Services. Bitbu may make instructions available to Customer regarding how to submit the Administrator request described in clause (d) of the previous sentence and Customer is responsible for following these instructions to initiate a deletion.
Survival. The following sections will survive expiration or termination of the Agreement: 4.4 (Third Party Requests), 6.2 (Payment), 8 (Intellectual Property Rights), 9.3 (Effects of Termination), 9.4 (Survival), 10 (Indemnification), 11 (Disclaimers), 12 (Limitation of Liability), 13 (Disputes), and 14 (Miscellaneous). Notwithstanding the foregoing, Section 4.4 (Third-Party Requests) shall not survive termination if Bitbu has exercised a right to terminate the Agreement.
By Customer. Customer will indemnify, defend, and hold harmless Bitbu from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any Claim against Bitbu and its Affiliates regarding: (a) Customer Data; (b) Customer Domains; (c) Customer’s or Customer’s End Users’ use of the Services in violation of the Agreement.
By Bitbu. Bitbu will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any Claim against Customer to the extent based on an allegation that Bitbu’s technology used to deliver the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Bitbu have any obligations or liability under this section arising from: (a) use of any Services in a modified form or in combination with materials not furnished by Bitbu; and (b) any content, information, or data provided by Customer or other third parties.
Possible Infringement. If Bitbu believes the Services infringe or may be alleged to infringe a third party's Intellectual Property Rights, then Bitbu may: (a) obtain the right for Customer, at Bitbu’s expense, to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. If Bitbu does not believe the options described in this section are commercially reasonable, then Bitbu may suspend or terminate Customer's use of the affected Services, with a pro-rata refund of prepaid fees for the Services.
General. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party will have full control and authority over the defense, except that: (a) any settlement requiring the Party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (b) the other Party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE BITBU AND CUSTOMER'S ONLY REMEDY UNDER THE AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
Generally. THE SERVICES AND ANY RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, BITBU AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. BITBU MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. BITBU WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, CUSTOMER DATA, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-BITBU SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS). CUSTOMER IS RESPONSIBLE FOR USING THE SERVICES IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES.
Use In Customer's Discretion. Despite anything to the contrary in the Agreement: (a) Customer may choose to use Beta Services in its sole discretion; (b) Beta Services may not be supported and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services have not been subjected to the same Security Measures and auditing to which the Services have been subjected; and (e) BITBU WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES - USE AT YOUR OWN RISK.
Feedback. Bitbu offers Beta Services in order to get user feedback. In exchange for using Beta Services, Customer agrees that Bitbu may contact Customer and its End Users to obtain Feedback regarding Beta Services.
Confidential. Beta Services are confidential until officially launched by Bitbu and Customer will treat the Beta Services, and any documentation, specifications, or instructions related the Beta Services, as Confidential Information of Bitbu.
Limitation of Liability.
Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR BITBU OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR BITBU AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THE AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, BITBU’S AGGREGATE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE LESSER OF $100,000 OR THE AMOUNT PAID BY CUSTOMER TO BITBU HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. FOR FREE ACCESS SUBSCRIPTIONS, TRIALS, OR BETA SERVICES, BITBU TOTAL LIABILITY WILL NOT EXCEED, IN AGGREGATE, FIFTY U.S. DOLLARS ($50).
Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 12 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY BITBU SERVICES OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Informal Resolution. Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party through the notice procedures in Section 14.6. If a dispute is not resolved within thirty days of notice, Customer or Bitbu may bring a formal proceeding.
Arbitration. Customer and Bitbu agree to resolve any claims relating to the Agreement or the Services through final and binding arbitration, except as set forth below. This includes disputes arising out of or relating to the interpretation or application of this “Arbitration” subsection, including its scope, enforceability, revocability, or validity. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Bethesda (MD), or any other location both parties agree to in writing. The arbitrator may award relief only individually and only to the extent necessary to redress Customer’s or Bitbu’s individual claim(s); the arbitrator may not award relief on behalf of others or the general public. Our past, present and future affiliates and agents may invoke our rights under this “Disputes” Section in the event they become involved in a dispute with you; otherwise, these Terms do not give rights to any third parties.
Exception to Arbitration. Either Party may bring a lawsuit in the federal or state courts of Montgomery County, Maryland solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. Both Customer and Bitbu consent to venue and personal jurisdiction there.
NO CLASS ACTIONS. Customer may only resolve disputes with Bitbu on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
Severability. If any part of this “Disputes” section is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class or representative arbitration, this “Disputes” section will be unenforceable in its entirety. If you are found to have a non-waivable right to bring a particular claim or to request a particular form of relief that the arbitrator lacks authority to redress or award according to this “Disputes” section, then only that respective claim or request for relief may be brought in court, and you and we agree that litigation of any such claim or request for relief shall be stayed pending the resolution of any individual claim(s) or request(s) for relief in arbitration.
Terms Modification. Bitbu may revise this Agreement from time to time and the most current version will always be posted on the Bitbu website. If a revision, in Bitbu’s sole discretion, is material, Bitbu will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Bitbu’s blog or terms page, and Customer is responsible for checking these postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within thirty days of receiving notice of the change.
Entire Agreement. The Agreement supersedes any prior agreements or understandings between the Parties, and constitutes the entire agreement between the Parties related to this subject matter. The Service-Specific Terms, the Data Processing Agreement, Customer invoices, and the Order Forms executed by the Parties, are hereby incorporated into the Agreement by this reference.
Interpretation of Conflicting Terms. If there is a conflict between the documents that make up the Agreement, the documents will control in the following order: the invoice, the Service-Specific Terms, Order Form, the BSA. The terms and conditions of the Agreement will be considered Confidential Information of Bitbu. Customer agrees that any terms and conditions on a Customer purchase order will not apply to the Agreement and are null and void.If End Users are required to click through terms of service in order to use the Services, those click through terms are subordinate to this Agreement and the Agreement will control if there is a conflict.
Governing Law. THE AGREEMENT WILL BE GOVERNED BY MARYLAND LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
Severability. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
Notice. Notices must be sent via email, first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Bitbu must be sent to Bitbu Legal at firstname.lastname@example.org, with a copy to Bitbu LLC, 6101 Davenport Ter Bethesda (Maryland) 20817, attn.: Legal Department.
Waiver. A waiver of any default is not a waiver of any subsequent default.
Assignment. Customer may not assign or transfer the Agreement or any rights or obligations under the Agreement without the written consent of Bitbu, except that Customer may assign the Agreement to the surviving entity in connection with a merger, acquisition, or sale of all or substantially all of its assets by providing written notice to Bitbu. Bitbu may not assign the Agreement without providing notice to Customer, except Bitbu may assign the Agreement or any rights or obligations under the Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
No Agency. Bitbu and Customer are not legal partners or agents, but are independent contractors.
Subcontracting. Customer consents to Bitbu’s appointment of Subcontractors, including Sub-processors, to perform the Services. Bitbu will remain liable for all acts or omissions of its Subcontractors or Sub-processors, and for any subcontracted obligations.
Force Majeure. Except for payment obligations, neither Bitbu nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the Party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement. Without limiting this section, a Customer's End Users are not third-party beneficiaries to Customer's rights under the Agreement.
"Acceptable Use Policy" means the acceptable use policy set forth at the following link, or other link Bitbu may provide: https://bitbu.ioacceptable_use.
"Account Data" means the account and contact information submitted to the Services by Customer.
"Affiliate" means any entity that controls, is controlled by or is under common control with a Party, where "control" means the ability to direct the management and policies of an entity.
"Agreement" means, collectively, this BSA, each applicable Order Form, the Data Processing Agreement and, if applicable, the HIPAA Business Associate Agreement and any Service-Specific Terms entered into by the Parties.
"Beta Services" means services or features identified as alpha, beta, preview, early access, or evaluation, or words or phrases with similar meanings.
"Claim" means a claim by a third party, including a regulatory penalty.
"Confidential Information" means information disclosed by one Party to the other Party that is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any performance information relating to the Service and the terms and conditions of this Agreement shall be deemed Confidential Information of Bitbu without any marking or further designation.
"Customer Data" means Stored Data, Account Data, structured data, images, and other content submitted to the Services by Customer or End Users.
"Customer Domains" means Customer's Internet domain names.
"Disclosing Party" means the Party disclosing Confidential Information to the other Party.
"EEA" means European Economic Area.
"Effective Date" means the date this BSA is entered into by the Parties, either by acceptance online or by the signing of an Order Form.
"EU Data Protection Laws" means, to the extent in force and applicable from time to time, those laws implementing the EU General Data Protection Regulation (2016/679) and any implementing laws in each EU member state.
"Export Control Laws" means all applicable export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State.
"Feedback" means any feedback, comments, or suggestions on the Services or Beta Services that Customer may send Bitbu or post in Bitbu’s groups. Feedback may include oral or written comments, suggestions, error reports, and analysis.
"Fees" means the amounts invoiced to Customer by Bitbu.
"HIPAA Business Associate Agreement" means an agreement between Customer and Bitbu detailing each Party's obligations regarding "Protected Health Information" under the HIPAA Privacy Rule (45 C.F.R. Section 164.051).
"Initial Services Term" means the term for the applicable Services beginning on the Provisioning Date and continuing for the duration set forth on the Order Form.
"Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
"Order Form" means an ordering document, order page, or user interface through which Customer purchases a subscription to the Services or enables access to the Services.
"Personal Data, "Process," and "Processing"" have the meaning given to those terms in the EU Data Protection Laws.
"Provisioning Date" is the date upon which Bitbu makes the Services available to Customer.
"Receiving Party" means the Party receiving Confidential Information from the other Party.
"Renewal Term" means, unless otherwise agreed to in writing by the Parties, the renewal term of the same duration as the Initial Services Term or preceding Renewal Term.
"Security Emergency" means: (i) use of the Services that does or could disrupt the Services, other customers' use of the Services, or the infrastructure used to deliver the Services; or (ii) unauthorized third-party access to the Services.
"Security Measures" means the technical and organizational security measures implemented by Bitbu for the applicable Services, as may be further described in the Service-Specific Terms.
"Security Resources" means any webpages, resources, guides, and whitepapers regarding technical or organizational measures that Bitbu has implemented for the applicable Services that are described in the Service-Specific Terms.
"Services" means the services ordered by Customer on the Order Form, excluding any third-party Add-Ons (as indicated at the time of purchase or enablement).
"Service-Specific Terms" means additional terms that apply to certain Services as set forth in Appendix 2 or otherwise attached to an Order Form.
"Services Term" means the Initial Services Term and all Renewal Terms for the applicable Services.
"Service Limits" means rate, storage, limits on Customers use of the Services as described in the applicable Order Form or product description page.
"Stored Data" means the files uploaded to the Services by Customer.
"Subcontractor" means an entity to whom Bitbu subcontracts any of its obligations under the Agreement.
"Sub-processor" means an entity who agrees to Process Customer Data on Bitbu’s behalf, or on behalf of another Bitbu sub-processor, in order to deliver the Services.
"Taxes" means any sales, use, value added, goods and services, consumption, excise, local stamp, or other tax, (including but not limited to ISS, CIDE, PIS, CONFINS), duty or other charge of any kind or nature excluding tax that is based on Bitbu’s net income, associated with the Services or Software, including any related penalties or interest.
"Term" means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of all applicable Services Terms; or (ii) the Agreement is terminated as set forth herein.
"Withholding Taxes" mean any income taxes that are imposed on Bitbu or Customer's reseller in which Customer is required by law to withhold or deduct on the payment to Bitbu or Customer's reseller.
The Agreement will be between Customer and the following Bitbu entities, as applicable:
Bitbu LLC: Customers based inside Canada, Mexico, or the United States, or their territories and possessions
Bitbu LLC: Customers based outside Canada, Mexico, or the United States, or their territories and possessions
Service Specific Terms
Posted: February 15, 2023
Effective: February 15, 2023
These Service-Specific Terms set forth additional terms and conditions that are specific to the Services listed below.
Bitbu may update these Service-Specific Terms from time to time, including to add additional Service-Specific Terms for new Services made available by Bitbu, by posting an updated version. If an update materially changes any Service-Specific Terms for any Services already purchased by Customer, Bitbu will notify Customer in accordance with Section 14.1 of the DSA.
Bitbu All Access
Service Description. The Bitbu All Accessservices are described at https://bitbu.io or other link that Bitbu may provide.