1. SAAS SERVICES AND SUPPORT
1.1 Subject to these terms and conditions of use, in addition to any terms contained on an Order Form referencing these terms (collectively, the “Agreement”) Bitesize will use reasonable efforts to provide Customer access to the Bitesize software-as-a-service communication platform and related services as described in an applicable Order Form (“Services”).
1.2 Subject to the terms hereof, Bitesize will provide Customer with reasonable technical and customer support services in accordance with Bitesize’s standard practices then in effect and as described in an applicable Order Form, which is referenced and incorporated herein.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any portion thereof(except to the extent expressly permitted by Bitesize or authorized within the Services); use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary rights notices.
2.2 The Services may be subject to export laws and regulations of the United States and other jurisdictions. Bitesize and Customer each represents that it is not named on any U.S government denied-party list. Customer will not permit any user to access or use any part of the Service in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Bitesize’s Acceptable Use Policy located at Bitesize.co/aup, which is referenced and fully incorporated herein, (collectively the “Policy”) and all applicable laws and regulations. Bitesize reserves the right to determine whether to modify or amend the Policy and shall provide notice of such amendment to Customer via email. Although Bitesize has no obligation to monitor Customer’s use of the Services, Bitesize may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.5 Bitesize reserves the right to permanently deactivate groups of contacts organized within Customer’s Bitesize account (“lists”) in which no messages have been sent for 89 or more days. Bitesize also reserves the right to deactivate Bitesize Groups Customer has selected to be archived.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Bitesize includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Bitesize to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Bitesize shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing.
4. PAYMENT OF FEES
4.1 Customer shall pay Bitesize the fees described in the Order Form for the Services as described in the Order Form in accordance with the terms therein. If Customer’s use of the Services exceeds the Service capacity, if any, set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Absent uncured material breach by Bitesize, fees are nonrefundable or subject to allocation. Bitesize reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Bitesize has billed Customer incorrectly, Customer must contact Bitesize no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Bitesize’s customer support department.
4.2 Unless other terms have been agreed to in the applicable Order Form, full payment for invoices issued in any given month must be received by Bitesize thirty (30) days after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
4.3. Unless otherwise stated in an Order Form, Bitesize’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes, except those assessable against Bitesize measured by its net income. Bitesize will invoice Customer for such Taxes if Bitesize believes it has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term of a fixed Service Period of twelve (12) months unless expressly stated otherwise in the Order Form, and shall automatically renew for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured for thirty days following notice thereof. In no event will termination relieve Customer of its obligation to pay any fees payable to Bitesize for the period prior to the effective date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability, and dispute resolution and arbitration provisions.
6. WARRANTY AND DISCLAIMER
6.1 Bitesize shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Bitesize or by third-party providers, or because of other causes beyond Bitesize’s reasonable control, but Bitesize shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Bitesize does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Bitesize shall have no liability whatsoever for unavailability or interruption of the Services or any portion thereof, including but not limited to message delivery or phone call connectivity, for reasons beyond Bitesize’s control such as telecommunications network disruption, handset availability, carrier filtering rules or other issues with telecommunications providers. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND Bitesize DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 Subject to the limitation of liability set forth in Section 8 below, Bitesize shall indemnify, defend, and hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Bitesize, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Bitesize, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Bitesize to be infringing on the intellectual property rights of a third party, Bitesize may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a prorated refund of any prepaid, unused fees for the Service.
7.2 Customer will defend, indemnify, and hold harmless Bitesize and its affiliates, subsidiaries, successors, assignees, owners, directors, officers, employees, contractors, suppliers, representatives, and agents from and against any and all claims, governmental investigations, awards, settlements, damages, fines, injuries, penalties, and costs arising out of or related to (i) any breach or alleged breach of this Agreement by Customer or (ii) Customer’s gross negligence or willful misconduct.
7.3 The party seeking indemnification (the “Indemnified Party”) will give prompt written notice to the party from whom indemnification is sought (the “Indemnifying Party”) of any claim for which indemnification is sought under this Agreement. Failure to give such notice will not relieve the Indemnifying Party of its obligation to provide indemnification except to the extent that such failure materially adversely affects the ability of the Indemnifying Party to defend the applicable claim. The Indemnifying Party may elect to assume the defense and control of any such claim at its own cost and expense and the Indemnified Party will have the right to be represented by its own counsel at its own cost in such matters. The Indemnifying Party will use counsel reasonably acceptable to the Indemnified Party. Neither the Indemnifying Party, nor the Indemnified Party, will settle or dispose of any such matter in any manner without the prior written consent of the other party, which will not be unreasonably withheld or delayed. Each party will reasonably cooperate with the other party and its counsel in the course of defense of any claim, such cooperation including, without limitation, providing documents, information, and/or witnesses.
8. LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, BITESIZE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND BITESIZE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO BITESIZE FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT BITESIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 This Agreement is not assignable, transferable or sublicensable by Customer except with Bitesize’s prior written consent. Bitesize may transfer and assign any of its rights and obligations under this Agreement without consent.
9.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Bitesize in any respect whatsoever.
9.5 The parties shall endeavor to resolve any dispute with respect to this Agreement in good faith within 30 days of a dispute being raised by one party with the other party. Any unresolved controversy or claim arising out of or relating to this Agreement shall be submitted to binding arbitration under the auspices of JAMS in San Francisco, California in accordance with its rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. In any such action or proceeding, the prevailing party will be entitled to recover costs and attorneys’ fees. The decision of the arbitrator shall be final, binding, and conclusive upon the parties. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator. This dispute resolution provision shall be governed by the Federal Arbitration Act.
9.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.7 This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
9.8: Acceptable Use Policy: All Bitesize customers and users are subject to the Acceptable Use Policy, accessible at www.bitesize.co/aup
9.9 Force Majeure. No party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to make payments to the other party hereunder, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (“Force Majeure Event”). The party suffering a Force Majeure Event shall give notice within 3 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
9.10 Public Announcements and Case Studies. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party. Bitesize may, subject to obtaining Customer’s consent, include Customer’s name and/or other indicia in its lists of Bitesize’s current or former customers of Bitesize in promotional and marketing materials. Additionally, upon consent of Customer, Bitesize shall prepare a case study relating to Customer’s access and use of the Services, including but not limited to one or more testimonials from Customer’s users, aggregated data of the results of Customer’s use of the Services, and other informational material as determined by Bitesize. Customer agrees to provide reasonable assistance to Bitesize and timely responses in Bitesize’s preparation of said case study.