Effective date: October 4, 2021
1.1 We are very pleased to have you on www.bitrise.io. We welcome all permitted use of our Website and Services. The following Terms of Service ensure that we all benefit in accordance with how we offer our Services. Please read them carefully.
1.2 These Terms of Service apply to everyone who creates or uses an account at the Website. They govern use of the Website and the Services. They form a binding agreement with Bitrise as explained below.
1.2.1 If there is an executed Bitrise Order that applies to you, then the terms of that Bitrise Order establish the binding legal commitment between you and Bitrise.
1.2.2 If there is no such Bitrise Order, then you accept these Terms of Service by creating an account at the Website, and they form the binding legal commitment between you and Bitrise. If you are in this category, and you created an account before the Effective Date, then the prior terms of service apply to you for fifteen (15) days from the Effective Date. You can access the applicable prior terms of service in the “Archived Documents” folder by way of the “Terms” link at www.bitrise.io.
1.2.3 If you are visiting the Website and do not have or use an account, then our Website Visitor Terms apply to you. You can access this in the “Website Visitor Terms” folder by way of the “Terms” link at www.bitrise.io.
1.3 Bitrise does not grant you any usage rights of any kind, and you must immediately stop using any account and the Services, if any of the following apply at any time:
1.3.1 you do not agree to be bound by these Terms of Service;
1.3.2 you cannot agree to be bound by these Terms of Service;
1.3.3 you cannot comply at all times with all terms of these Terms of Service; or
1.3.4 any provisions of these Terms of Service are not enforceable under the laws that apply to you.
2.1 If you have any questions about these Terms of Service, please contact us using the channels on the Website, and/or as indicated under the notice provisions in these Terms of Service.
The following definitions apply in these Terms of Service:
3.1 “Bitrise” or “we” mean Bitrise Limited, a company incorporated and registered in England and Wales (company number: 09594679) with its registered office as indicated in the Companies House listing at https://beta.companieshouse.gov.uk/company/09594679, and includes all Affiliates of Bitrise Limited.
3.2 “Acceptable Use Policy” means the Bitrise Acceptable Use Policy in the “Acceptable Use Policy” folder by way of the “Terms” link at www.bitrise.io.
3.3 “Add-on Marketplace” means a marketplace, that may be provided by Bitrise, where Customers have the option to purchase any Bitrise Add-ons and Third-Party Services that Bitrise elects to make available through that marketplace.
3.4 “Affiliate” means in respect of a party, any entity that from time-to-time, directly or indirectly, Controls, is Controlled by, or is under common Control with that party, and any other entity agreed in writing by the parties as being an Affiliate in respect of either party.
3.5 “Aggregated Data” means data generated in the course of using the Services and Third-Party Services that is created and/or collected by Bitrise and anonymized and/or de-identified wherein the data does not identify any Customer or natural person.
3.6 “Beta and Evaluation Offerings” mean (i) Services that are identified as alpha, beta, non-GA, limited release, developer preview, or any such similarly designated services, products, features, and documentation offered by Bitrise in order to test and evaluate them; and (ii) Services and/or features that are offered by Bitrise for the purposes of preliminary evaluation, internal evaluation, proof of concept, or similar purposes.
3.7 “Bitrise Add-ons” mean a software add-on developed, labelled and offered by Bitrise as an add-on that is entirely optional for a Customer to use, and that, if selected by Customer, (i) is an additional stand-alone portion of the Services that offers applicable functionality to Customer’s mobile application and/or development environment, and (ii) may be subject to additional Bitrise Add-ons Terms and Conditions and/or pricing.
3.8 “Bitrise Add-ons Terms and Conditions” mean the additional terms relating to a Bitrise Add-on.
3.9 “Bitrise Order” means an electronic or physical order form signed by Bitrise and by or on behalf of Customer.
3.10 “Bitrise Policies” mean the Acceptable Use Policy.
3.11 “Bitrise Steps” mean a software process developed, labelled and offered by Bitrise as a step, that is entirely optional for Customer to use, and, that if selected by Customer adds the applicable task to Customer’s mobile application build process.
3.12 “Confidential Information” means any and all information or data, in whatever form or storage medium, whether tangible or intangible, and whether disclosed directly or indirectly before or after the conclusion of these Terms of Service by or on behalf of the Discloser to the Recipient in writing, orally, through visual means, or by the Recipient's evaluation, observation, analysis, inspection or other study of such information, data or knowledge, which is now or at any time after the conclusion of these Terms of Service owned or controlled by the Discloser. Confidential Information shall also include any information which, by its nature, would reasonably be considered to be of a confidential nature either intrinsically or due to the context and circumstances in which it was disclosed.
3.13 “Control” means the ownership of, or power to vote in respect of, at least 50% of the voting stock, shares or interests of an entity.
3.14 “Competitor” means any company that offers services that compete with some or all of the Services.
3.15 “Customer” or “you” mean the legal entity on whose behalf an individual who created an account at the Website is using the Services. If an account is created by an individual who is not using the Services on behalf of a legal entity, “Customer” or “you” mean the individual who created the account.
3.16 “Customer Data” means all data that Customer provides to Bitrise, such as uploaded or hosted data, through Customer’s use of the Services.
3.17 “Data Privacy Laws” mean any and all international, federal, state, provincial and local data privacy laws applicable to Customer, such as, by way of example, 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, and repealing Directive 95/46/EC (General Data Protection Regulation, “GDPR”), the UK Data Protection Act 2018, the California Consumer Privacy Act of 2018 (“CCPA”), the Japanese Act on the Protection of Personal Information (Act No. 57, 2003, “APPI”), the Brazilian General Data Protection Law (Federal Law no. 13,709/2018, “LGPD”), among others, and other relating laws, rules, regulations, directives and governmental requirements currently in effect and as they become effective.
3.18 “Discloser” means a party disclosing its Confidential Information to the Recipient.
3.19 “Dispute” means any dispute, including but not limited to claims arising out of or related to these Terms of Service, or the breach, termination, enforcement, interpretation or validity thereof, or the use of the Services whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Service.
3.20 “Documentation” means the general release user documentation provided on or through the Website by Bitrise at devcenter.bitrise.io, or at such other URL as Bitrise may use, and as any such document or URL may be amended from time-to-time.
3.21 “Effective Date” means the effective date specified in the beginning of these Terms of Service.
3.22 “Fees” mean the fees paid or payable by Customer as set forth in any Plan chosen by Customer.
3.23 “Forum” means bulletin boards or comment threads, such as at https://discuss.bitrise.io, in-app chats, survey forms and other tools which enable Customer to access, upload or post comments and other information or materials for purposes of discussion, feedback, support, communicating errors of Beta and Evaluation Offerings and results of beta tests, and tools used for online or offline discussions and/or interviews with Customers.
3.24 “Forum Content” means any content made available by Customer on a Forum, including, but not limited to, text, photos, videos and other materials, information and data.
3.25 “Intellectual Property Rights” mean (i) patents, inventions, designs, copyright and related rights, database rights, knowhow and Confidential Information, trade marks (whether registered or unregistered) and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (ii) all other rights of similar nature or having an equivalent effect anywhere in the world which currently exist or are recognized in the future; and (iii) all applications, extensions, continuations and renewals in relation to any such rights.
3.26 “IPR Claim” means any claim or action made or threatened by a third party against Customer that (i) arises directly and solely from use of the Services by Customer, (ii) is valid and enforceable in the legal jurisdiction in which the IPR Claim is commenced, and (iii) asserts the infringement of the Intellectual Property Rights of that third party.
3.27 “Personal Data” means personal data as defined under applicable Data Privacy Laws.
3.28 “Plan” means each of the then-current free and/or fee-based subscriptions chosen by Customer pursuant to the applicable pricing page(s) on the Website, and/or pursuant to the applicable Bitrise Order. Any expired Plan (that has not been terminated as permitted in these Terms of Service) shall be replaced at its expiration with an applicable renewal Plan in accordance with these Terms of Service.
3.29 “Recipient” means a party receiving Confidential Information from the Discloser.
3.30 “Sanctions Regime” means all applicable laws and regulations with regards to anti-bribery, anti-corruption, prevention of money laundering and financing of terrorism, economic sanctions, export controls, import regulations and trade embargoes, (targeted) asset freeze and prohibition to make funds available, travel restrictions, prohibition to satisfy claims, financial measures and restrictions on a variety of financial markets and services, investment restrictions, directions to cease business and other restrictions, in particular, US (e.g. US Export Administration Regulations and other applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Services or software outside the US), UK (e.g. Sanctions and Anti-Money Laundering Act 2018, “SAMLA 2018”, Terrorist Asset-Freezing etc. Act 2010 “TAFA 2010”, Counter Terrorism Act 2008 “CTA 2008”, Anti-Terrorism, Crime and Security Act 2001 “ATCSA 2001”), EU (e.g. sanctions listed at https://eeas.europa.eu/topics/sanctions-policy/423/european-union-sanctions_en) or other applicable sanctions regimes in force at any time.
3.31 “Services” mean the services that Bitrise directly offers from time-to-time through accounts created on the Website, including Bitrise Add-ons and Bitrise Steps. Services do not include Third-Party Services.
3.32 “Open Source Software” means software components subject to the terms and conditions of open source software licenses.
3.33 “Term” means the term from start to end dates of a Plan, as defined on the applicable pricing page of the Website or by an applicable Bitrise Order.
3.34 “Terms of Service” mean these terms of service.
3.35 “Third-Party Services” mean a software add-on or step not developed by Bitrise, that is labelled as such, that is entirely optional for Customer to use, and, that if selected by Customer (i) offers applicable functionality to Customer’s mobile application and/or development environment, and (ii) may be subject to separate terms and conditions directly between Customer and the applicable third party developer and/or may be subject to additional pricing.
3.36 “Website” means www.bitrise.io.
4.1 The Services.
4.1.1 Grant of License. Solely for purposes in accordance with these Terms of Service, and subject to Customer’s compliance at all times with these Terms of Service and the Bitrise Policies, Bitrise grants Customer a personal, limited, non-exclusive, non-transferable, revocable and terminable license to use the Services as set forth in these Terms of Service and Customer’s Plan or Customer’s applicable Bitrise Order.
4.1.2 Ownership. The Website, the Services and their content, features and functionality and the Aggregated Data are owned by Bitrise or its licensees, and are protected by international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. All such rights are reserved. All trademarks are the property of Bitrise or their respective owners. Except and solely as expressly granted to Customer in Section 4.1.1 above, Bitrise reserves all rights of ownership of any kind to itself and its applicable licensees. Without limitation on the foregoing, the license grant in Section 4.1.1 above does not include a right to adapt or create derivative works of any Bitrise code.
4.1.3 Open Source Software. To the extent required by the license that accompanies any Open Source Software applicable to Customer’s use of the Services, the terms of such license will apply with respect to the use of such Open Source Software.
4.1.4 Updates, Changes, New Features. Bitrise may update or otherwise change the Website and the Services (or any part thereof) from time-to-time in its sole discretion. Subject to Section 4.1.6, new, enhanced or additional features that Bitrise releases as part of the Services shall be subject to these Terms of Service.
4.1.5 Notices. Bitrise shall provide notices to Customers of major updates or changes to the Services, in due course, through one or more channels as applicable to the specific update or change and as determined by Bitrise.
4.1.6 Bitrise Add-ons and Bitrise Steps. Bitrise may offer Customer a choice of the use of Bitrise Add-ons and/or Bitrise Steps. If any Bitrise Add-ons are or become subject to Bitrise Add-ons Terms and Conditions and/or additional pricing, Bitrise shall provide Customer advance and clear notice, and a choice to opt-in prior to the access and use of such Bitrise Add-ons.
4.1.7 Third-Party Services. Bitrise may offer Customer a choice of access to Third-Party Services. Bitrise is not, and shall not be deemed in any way a provider of or responsible for any Third Party Services. Any such access to Third-Party Services is offered solely on the basis of separate terms and conditions concluded between Customer and the applicable Third-Party Services developer. Customer shall be provided clear, advance notice of these separate terms and conditions, and a choice to opt-in to use any Third-Party Services. Customer’s use of Third-Party Services may also be subject to additional pricing, which, if any, will be indicated during the process in which Customer elects to use any such Third-Party Services.
4.1.8 Contributing to Third-Party Steps, Third-Party Add-ons and/or Open Source Code. The terms and conditions under which a third party may contribute and/or provide access/integration to any Third-Party Services and/or contributing to any open source codebase are not governed by these Terms of Service. If Customer is also acting in a capacity as a Third-Party Services contributor (developer), Customer shall in that capacity execute contributor terms and conditions as indicated by Bitrise from time-to-time, which shall constitute a separate contract by and between Customer in their capacity as a Third-Party Services contributor (developer) and Bitrise.
4.1.9 Beta and Evaluation Offerings. From time-to-time, Bitrise may make Beta and Evaluation Offerings available to Customers on an opt-in basis or other basis, as determined by Bitrise. Bitrise will indicate which part of the Services are Beta and Evaluation Offerings. Customer may choose to use Beta and Evaluation Offerings in its sole discretion. If Customer uses Beta and/or Evaluation Offerings, Customer shall, at Bitrise’s request, (i) provide Bitrise with information as to any errors or defects found by Customer in the Beta and Evaluation Offering; (ii) inform Bitrise of any suggested changes, modifications or improvements to the Beta and Evaluation Offering; and (iii) provide Bitrise with all information and documentation necessary for Bitrise to evaluate the results of testing of the Beta and Evaluation Offerings (if the Beta and Evaluation Offerings are subject to tests). Bitrise may impose and/or agree to terms and conditions on the use of Beta and Evaluation Offerings separate from or in addition to as set forth in this Section 4.1.9. Customer is permitted to use Beta and Evaluation Offerings solely at its own risk. Bitrise undertakes no obligations of any kind to make Beta and Evaluation Offerings available to any or all Customers. Bitrise may change, suspend or discontinue Beta and Evaluation Offerings at any time in its sole discretion. Bitrise will provide a notice when the provisions of these Terms of Service specific to Beta and Evaluation Offerings will no longer apply to the use of the Services, for example, if a beta version becomes production release.
4.2 Support. Bitrise shall provide support for the Services according to the terms applicable to Customer’s Plan or, as agreed in an applicable Bitrise Order. Bitrise may offer support services through one or more channels, such as chat, email or otherwise. As part of providing support to Customer or otherwise at the request of Customer, Bitrise may act at the instruction or by permission of Customer made by or through the Services, and Bitrise shall not be in any way liable or responsible for such actions. Beta and Evaluation Offerings are not subject to any support obligations.
4.3 Services Documentation. Bitrise shall provide Documentation for the Services. Bitrise shall use good practices to maintain the Documentation, provided that at any given time, any part of the Documentation (or other content on the Website) may be out of date. Documentation may not be provided for Beta and Evaluation Offerings.
4.4 Use of Customer Data and Aggregated Data.
4.4.1 Bitrise will not store, process, transmit or access Customer’s code, except as necessary to perform the Services, and/or as expressly instructed by Customer.
4.4.2 Bitrise may carry out testing and may evaluate the results of testing in relation to Beta and Evaluation Offerings.
4.4.3 Subject to the confidentiality provisions of Section 8 below, and the ownership provisions regarding Customer Data, Bitrise may collect, use and analyze general information and data during the performance of the Services, including Aggregated Data, for purposes of improving and enhancing the quality and nature of Services (or other services), for its business purposes, and/or to market or publish general information and statistics, provided that Bitrise does not specifically identify Customer.
4.4.4 To the maximum extent permitted by law, Bitrise may dispose of any Customer Data in its possession at any point after termination of these Terms of Service.
4.5 Reporting, Cooperation and Governmental Compliance.
4.5.1 Bitrise reserves the right to report any breach by Customer of these Terms of Service to the relevant law enforcement authorities. Bitrise reserves the right to cooperate fully, at all times, and in any way Bitrise determines is necessary, proper, or advisable with any law enforcement or other governmental authorities with applicable jurisdiction.
4.5.2 Bitrise will not be liable for any failure to provide Services or the Website as a result of any government action that Bitrise reasonably believes may adversely impact its obligations under these Terms of Service, business or reputation.
4.5.3 Bitrise uses external service providers to monitor compliance with Sanctions Regimes. If any such service provider informs Bitrise that Customer is subject to any restrictions under the Sanctions Regimes or if Bitrise has any reason to so believe, Bitrise has the right to terminate or limit applicable access to the Services or the Website, a Plan, or a Customer’s account, or unilaterally terminate any part of these Terms of Service at any time with immediate effect without refunding or compensating Customer and without further investigation or other action. Notwithstanding the foregoing, the obligation to conform to all Sanctions Regimes is the obligation of each Customer, and failure to do so shall be deemed an uncurable material breach of these Terms of Service.
4.6 Forum.
4.6.1 Bitrise may from time-to-time provide Forum(s) and related services on or through the Website or by other means, including, without limitation, bulletin boards, blogs or comment threads (e.g., https://discuss.bitrise.io).
4.6.2 Bitrise may, in its sole discretion, delete or remove any Forum Content at any time and for any reason.
4.6.3 Bitrise is under no obligation to oversee, monitor or moderate any Forum. Bitrise expressly excludes any liability for any loss or damage arising from the use of any interactive service by Customer in contravention of these Terms of Service, and the Acceptable Use Policy, whether the service is moderated or not. Bitrise takes no responsibility for, and does not expressly or implicitly endorse, any Forum Content.
5.1 General responsibilities. Customer must at all times comply with these Terms of Service and the Bitrise Policies, including, but not limited to:
5.1.1 Customers must be legally able (under all applicable jurisdictions’ laws and codes) to be bound by these Terms of Service and in accordance with the Website’s process(es) for accepting these Terms of Service.
5.1.2 To the extent an individual has created an account or is using the Services on behalf of a legal entity, the individual agrees to these Terms of Service on behalf of that legal entity. The individual represents that the individual has the authority to bind that legal entity to these Terms of Service. If an individual registers an account using a corporate email domain, Bitrise will deem that this individual is using the Services on behalf of the legal entity to which the corporate email domain pertains.
5.1.3 Accounts registered via automated methods are prohibited except in limited cases consistent with Bitrise’s intended use of the Services and cases expressly permitted and/or intentionally enabled by Bitrise. Without limitation on the foregoing, without Bitrise’s express permission, creating multiple accounts is not permitted, particularly by using automated methods.
5.1.4 Customers must at all times provide a valid and up-to-date email address, and true, correct and accurate account and other information as part of any account creation, maintenance or related process. Any such email address must, without limitation and at all times, be useable by Bitrise to contact and communicate with Customer.
5.1.5 Competitors, and any individuals or entities acting on behalf or in the guise of any Competitor, may only create an account with the prior written consent of Bitrise.
5.1.6 Any individual or any legal entity (and its Affiliates, and its executive officers, employees, owners and ultimate beneficiaries of such legal entity), that are subject to any restrictions under the Sanctions Regimes, are expressly prohibited from using the Website, the Services, and, directly or indirectly, creating an account.
5.1.7 Any use, ideas, suggestions, and feedback that Customer provides to Bitrise on or about the Services are entirely voluntary.
5.1.8 Customer represents and warrants that Customer has all rights, power, and authority necessary for complying with these Terms of Service.
5.2 Account Security.
5.2.1 Customer is fully responsible for all activities that occur under or in connection with Customer’s account.
5.2.2 Customer is responsible for configuring its systems, information technology, login credentials, and other information and data securely.
5.2.3 Customer must treat all information related to the security of the account, such as Customer’s password or any other piece of information, as confidential. Customer must not disclose the foregoing to any third party. Customer must use strong passwords that are created and maintained in compliance with the applicable industry standards.
5.2.4 Customer must immediately notify Bitrise if Customer knows or suspects that anyone other than Customer knows or has access to Customer’s login credentials, if Customer becomes aware of, or has reason to suspect any unauthorized use of Customer’s account, or if Customer becomes aware of, or has reason to suspect any other breaches of security related to the Services.
5.3 Customer Grant of Rights, Permissions.
5.3.1 Customer Data. Customer grants to Bitrise the rights to Customer Data solely as necessary for Bitrise to provide the Services, as set forth in these Terms of Service, to Customer. By submitting any Customer Data to Bitrise, Customer grants Bitrise a worldwide, royalty-free, non-exclusive, terminable license of the intellectual property rights solely as and to the extent necessary for the provision of the Services to Customer. Customer Data remains Customer’s property. Customer remains solely responsible for all its Customer Data and represents that it has (and will have) all rights that are necessary to grant Bitrise the license rights in the Customer Data under these Terms of Service. Customer further represents that the Customer Data will not, in so far as it relates to Bitrise, infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Further, Customer shall not provide any Customer Data that is not relevant to the provision and use of the Services.
5.3.2 Forum and Forum Content.
i. Customer agrees that Bitrise may use Forum Content without compensation or obligation to Customer. Customer hereby grants to Bitrise a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, transferable, and sub-licensable license to use, copy, modify, adapt, prepare derivative works from, distribute, publish, perform, and display Customer’s Forum Content in all media formats and channels now known or later developed. Customer further agrees that Bitrise may remove metadata associated with any Forum Content. Customer irrevocably waives any claims and assertions of moral rights or attribution with respect to Customer’s Forum Content.
ii. Customer hereby authorizes Bitrise to contact the employees, contractors, or other contributors of Customer to participate in interviews with Bitrise. Customer further authorizes its employees, contractors or other contributors to participate in interviews with Bitrise.
iii. Customer may remove its Forum Content by specifically deleting it; however, in certain instances, some of Customer’s Forum Content (such as posts or comments) may not be completely removed, and copies of such Forum Content may continue to exist on the Services. To the maximum extent permitted by law, Bitrise is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of Customer’s Forum Content.
5.4 Responsibility for Employees, Contractors and other Contributors. By using the Services, Customer may create collaborative environments (such as organizations, projects, or any similar environment as offered by Bitrise from time-to-time) within the Services, and may (subject to its and their compliance with these Terms of Service) invite its employees, contractors or other contributors to collaborate. By doing so Customer assumes all liability towards Bitrise for the conduct of any such employees, contractors, or other contributors in relation to such collaborative environments of Customer.
5.5 Acceptable Use. Customer must at all times comply with the Acceptable Use Policy.
5.6 Personal Data.
5.6.1 Bitrise does not process Personal Data on behalf of Customer, provided, however, that Bitrise may process Personal Data on behalf of Customer in relation to certain optional features of the Services which may be selected and implemented by Customer (e.g., certain Bitrise Add-ons). In the event a Customer selects any such optional feature, the applicable the data processing agreement, provided at the time Customer makes such a selection, shall apply within the scope and to the extent specified for that optional feature. Customer will be notified of and required to accept this data processing agreement at the time of opting in to access and use such optional feature (e.g. certain Bitrise Add-ons).
5.6.2 Customer’s computer code uploaded to the Services is not permitted to include Personal Data. In case Customer wishes to upload computer code that does include Personal Data to the Services, Customer must obtain the prior written consent of Bitrise before doing so.
5.6.3 Customer further represents and warrants that the Customer Data it provides during its use of the Services does not fall under any country-specific prohibition on the transfer of Personal Data.
5.7 Sanctions Regimes.
5.7.1 Customer will comply with all applicable federal laws, regulations and rules, including the Sanctions Regimes, and will complete all undertakings required by the Sanctions Regimes, including obtaining any necessary export license or other governmental approval. Customer represents and warrants that Customer and its Affiliates, and the executive officers, employees, owners and ultimate beneficiaries of these companies are not subject to any restrictions under the Sanctions Regimes nor are they otherwise owned or Controlled by or acting on behalf of any person targeted by Sanctions Regimes. Customer further represents and warrants that none of Customer or its Affiliates, or the executive officers, employees, owners and ultimate beneficiaries of these companies are currently named, or excluded, on, or from, any of the following lists: (i) the U.S. Department of Health and Human Services/Office of the Inspector General’s List of Excluded Individuals/Entities; (ii) the U.S. General Services Administration (“GSA”) System for Award Management, which was formerly known as the GSA List of Parties Excluded from Federal Programs; and (iii) the Office of Foreign Assets Control’s (“OFAC”) list of “SDN and Blocked Individuals” or other OFAC sanctions programs. Customer undertakes to notify Bitrise immediately if any change occurs in the status of this warranty statement.
5.7.2 Customer agrees to ensure that, by or through Customer, neither the Services or the Website, nor any related technical information or data of any kind, are: (i) used, downloaded, transferred, exported, or re-exported directly or indirectly in violation of Sanctions Regimes; (ii) used for any purpose prohibited by Sanctions Regimes, including but not limited to nuclear, chemical, or biological weapons proliferation; exported to restricted and/or embargoed destinations (including, but are not limited to, Cuba, Iran, North Korea, Sudan, and Syria); (iii) and/or utilized in prohibited end-use and/or proliferation activities.
6.1 Fees for Plans (other than those subject to an applicable Bitrise Order).
6.1.1 Information regarding Fees is available at the pricing page(s) on the Website Bitrise may implement from time-to-time.
6.1.2 Prices for monthly accounts are subject to increase upon not less than thirty (30) days’ prior notice from Bitrise. The changes will become effective as indicated in the relevant notice. If Customer does not agree to pay Fees based on increased prices, Customer may terminate the relevant Plan and/or its account in accordance with these Terms of Service.
6.1.3 Bitrise may from time-to-time and in its sole discretion offer temporary discounts and/or other offsets. Any such discounts and offsets shall be subject to any and all rules and requirements as posted, decided, revised and/or interpreted by Bitrise in its sole discretion.
6.2 Fees for Plans subject to a Bitrise Order.
6.2.1 Payment terms and Fees are as set forth in the applicable Bitrise Order.
6.2.2 Prices in Bitrise Orders are subject to increase upon notice provided to Customer within not less than thirty (30) days prior to the renewal date of a Bitrise Order, or as otherwise agreed by the parties in a Bitrise Order.
6.3 Payment Terms.
6.3.1 Approved Payment Methods. Unless otherwise indicated in an applicable Bitrise Order, a valid and approved payment method (as indicated by Bitrise) is required for paying any Fees. Customer authorizes Bitrise to collect all Fees due by way of such payment method provided by Customer in Customer’s account, or as otherwise indicated in a Bitrise Order.
6.3.2 Invoicing and Taxes. Bitrise will issue invoices as specified in Bitrise Orders, and as otherwise required in accordance with applicable laws. Customer is solely responsible for, and will pay all applicable sales, use, service, value-added, consumption or other taxes associated with any payment made to Bitrise.
6.3.3 Refunds. All amounts paid pursuant to a Plan are non-refundable.
6.3.4 Failure to Pay, Late Payments. If, for any reason, Bitrise cannot collect the Fees due for whatever reason, Bitrise reserves the right to suspend, limit or terminate the Services in accordance with these Terms of Service. Without limitation on Bitrise’s other rights and remedies, if Customer is overdue on any payment, and fails to pay within ten (10) business days of a notice of the overdue payment, Bitrise may charge a late fee of one percent (1%) per month of the amount due.
6.3.5 Fee Disputes. If Customer disputes any fees or taxes, Customer must act reasonably and in good faith and cooperate diligently with Bitrise to resolve the fee dispute. Customer must notify Bitrise in writing if Customer disputes any portion of any fees paid or payable by Customer pursuant to these Terms of Service. Customer must provide that written notice to Bitrise within fifteen (15) days of the date Bitrise issued the invoice to Customer for the fees Customer intends to dispute. Bitrise will work together with Customer to resolve the dispute promptly. Bitrise shall not be required to provide access to the Services during any fee dispute.
7.1 Auto-Renew. Plans will automatically renew on the last day of the Term of the expiring Plan for a period equaling the Term of the then-current applicable Plan, unless:
7.1.1 either party notifies the other party in writing at least thirty (30) days before the last day of the Term of the expiring Plan, in which case the Plan shall terminate upon the last day of the Term; or
7.1.2 Customer’s access to the Services and the Website, or the Plan or these Terms of Service are otherwise terminated in accordance with Sections 7.2 or 7.3; or
7.1.3 parties agreed otherwise in writing in a Bitrise Order.
7.1.4 If a Plan renews automatically, Customer authorizes Bitrise to collect the then-applicable Fee in accordance with Section 6.3 above.
7.2 Termination by Bitrise.
7.2.1 Bitrise may terminate, suspend or limit Customer’s access to the Services, the Website or the Plan, including terminating Customer’s account, or unilaterally terminate any part of these Terms of Service, with or without cause, by giving not less than thirty (30) days’ written notice to Customer.
7.2.2 Bitrise may, at its option, suspend, limit or terminate Customer’s access to the Services, the Website or the Plan, including suspending access to or terminating Customer’s account, or unilaterally terminate any part of these Terms of Service, at any time with immediate effect without refunding or compensating Customer if:
i. Customer fails to pay in accordance with Section 6.3 any amount due and owing to Bitrise; or
ii. Customer breaches or in any way fails to comply with these Terms of Service, provided that, Bitrise may, in its sole discretion, provide notice to Customer and an opportunity to cure the breach, that Bitrise deems remediable, within a period of thirty (30) days of the date of the notice;
iii. Bitrise believes that Customer’s manner of using the Services is infringing or likely to infringe any laws, regulations, third party rights or the business interests of Bitrise; or
iv. Bitrise believes that Customer’s manner of using the Services is in any way fraudulent or involving unethical activity, or threatens to implicate Bitrise in the foregoing.
7.2.3 Bitrise may immediately suspend or limit the access to the Services, including suspending Customer’s account, for the period of its investigation at any time with immediate effect without refunding or compensating Customer if Bitrise reasonably suspects that any of the circumstances listed in Section 7.2.2 may have arisen.
7.2.4 Bitrise may suspend, withdraw, discontinue all or any part of the Website or the Services for business and operational reasons, including for upgrades or maintenance. Bitrise shall use commercially reasonable efforts to provide advance notice of any material suspension, withdrawal or discontinuance.
7.2.5 Bitrise may suspend, limit or terminate Customer’s access to the Services, Website or the Plan, including suspending access to, or terminating Customer’s account, or unilaterally terminate any part of these Terms of Service at any time upon notice to Customer if Bitrise cannot, on a commercially reasonable basis, provide the Website or the Services to Customer or due to technical, operational or other reasons outside of Bitrise’s control.
7.3 Termination by Customer.
7.3.1 Customer may terminate these Terms of Service anytime for convenience. To do so, Customer must delete Customer’s account on the Website. The termination of these Terms of Service shall be effective on the date Customer deletes Customer’s account.
7.3.2 Customer may elect to change the Plan in accordance with the choice of Plans and the Plan change options made available by Bitrise. Any such Customer’s change of a Plan shall be effective commencing on the last day of the Term of the then-current applicable Plan, or as otherwise permitted or enabled by Bitrise.
7.3.3 Customer may terminate these Terms of Service in writing if Bitrise breaches these Terms of Service, and the breach is irremediable, or, if such breach is remediable, fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.
7.4 Effect of termination. In the event of a termination of these Terms of Service, Customer shall immediately cease all use of and access to the Services.
7.5 Survival. The following sections shall survive termination: Section 1 (Introduction), Section 3 (Definitions), Section 4.1.2 (Ownership), Section 4.4.3 (Use of Aggregated Data), Section 4.4.4 (Disposal of Customer Data), Section 4.5 (Reporting Cooperation and Governmental Compliance), Section 4.6 (Forum), Section 5.3.2(i) (Forum and Forum Content), Section 5.4 (Responsibility for Employees, Contractors and other Contributors), Section 6.3 (Payment Terms), Section 7 (Automatic Renewal, Termination, Survival), Section 8 (Confidentiality), Section 10 (Warranty and Disclaimers), Section 11 (Limitation of Liability) and Section 12 (General Provisions).
8.1 The Recipient shall protect all Confidential Information which the Discloser provides to it (whether orally, in writing or in any other form) using the same standards as the Recipient applies to its own comparable Confidential Information, and in no event less than a reasonable standard of care. The Recipient may only use Confidential Information for the purposes of and as authorized under these Terms of Service.
8.2 The Recipient will, except as additionally authorized by the Discloser in writing, limit access to Confidential Information of the Discloser (i) to those of its and its Affiliates’ owners, employees, agents and contractors who need that access for the purposes of exercising the party's rights or carrying out its obligations specified in these Terms of Service; and (ii) to those of its and its Affiliates’ financial, legal and other professional advisors (all under (i) and (ii) hereinafter referred to as “Permitted Third-Party Recipients”). Recipient shall cause any such Permitted Third-Party Recipients to be obligated to confidentiality protections not materially less protective of the Confidential Information than those applicable to Recipient.
8.3 Subject to the provisions of these Terms of Service, advice of legal counsel, and applicable laws, upon request by the Discloser, the Recipient will return or destroy Discloser’s Confidential Information. Notwithstanding the foregoing, each party may retain copies or archived computer system backups in accordance with Recipient’s record retention policies established for the purpose of compliance with applicable laws, or to the extent required for the exercise of the party’s rights under these Terms of Service, provided that such party shall continue to treat any such materials as Confidential Information in accordance with these Terms of Service for so long as the same remain in its custody, possession or control.
8.4 The Recipient’s confidentiality obligations will not apply to information: (i) already known to it at the time of disclosure without restrictions on disclosure; (ii) in the public domain or publicly available other than as a result of a breach of these Terms of Service; (iii) provided to it by a third party who is under no such obligation of confidentiality; or (iv) independently developed by the Recipient without reference to the Discloser’s Confidential Information. If any court, regulatory authority or legal process requires the Recipient to disclose information covered by this confidentiality obligation, then the Recipient may make any such disclosure, provided that the Recipient will, if permitted by law, advise the Discloser promptly of any such requirement and cooperate, at the Discloser’s expense, in responding to it.
8.5 The Recipient acknowledges and agrees that unauthorized use or disclosure of Confidential Information would cause irreparable harm and significant injury to the Discloser that would be difficult to ascertain. Accordingly, Recipient agrees that the Discloser shall have the right to obtain injunctive or other equitable relief to enforce the confidentiality obligations under these Terms of Service.
9.1 Bitrise Indemnities.
9.1.1 Subject to the provisions of Section 9.1.3, Bitrise shall defend, indemnify and hold Customer harmless in respect of all damages and reasonable costs (including reasonable legal fees) awarded in a final, non-appealable judicial decision arising directly from an IPR Claim which is valid and enforceable in the legal jurisdiction in which the IPR Claim is commenced, as set forth in Section 9.3 below.
9.1.2 If any IPR Claim is made, or in Bitrise’s reasonable opinion is likely to be made, against Customer, Bitrise may at its sole option and expense:
i. obtain for Customer the right to continue using the Services in the manner permitted under these Terms of Service; or
ii. modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement, but in such a way that does not materially adversely affect the functionality of the Services; or
iii. terminate the relevant portion of the Services.
9.1.3 Sections 9.1.1 and 9.1.2 shall not apply to any IPR Claim which arises from: (i) any changes, modifications, updates, add-ons or enhancements made to or available through the Services other than those developed by Bitrise; (ii) combination or use of the Services with any other software, program, hardware or device not developed by Bitrise or which is combined in a manner other than that specified by Bitrise, if such infringement would not have arisen but for such combination or use; or (iii) compliance by Bitrise with designs, plans, instructions or specifications furnished by Customer.
9.1.4 The provisions of Section 9 state the entire liability of Bitrise to Customer in connection with an IPR Claim and shall be Customer’s sole and exclusive remedy in that regard.
9.2 Customer Indemnities. Subject to the provisions of Section 9.3, Customer shall defend, indemnify and hold harmless Bitrise in respect of all damages and reasonable costs (including reasonable legal fees) arising directly from a third party claim against Bitrise involving claims that Customer Data infringes the intellectual property rights of a third party.
9.3 Conduct of Claim.
9.3.1 Actions which fall within the scope of Sections 9.1 and 9.2 above shall be a “Claim”. The indemnifying party’s obligations for Claims are subject to the provisions of this Section 9.3.
9.3.2 The indemnified party shall not admit any liability or agree to any settlement or compromise of a Claim without the prior written consent of the indemnifying party.
9.3.3 The indemnifying party shall be entitled at any time from the notification in accordance with Section 9.3.5 to assume exclusive conduct of the Claim (which shall include, but not be limited to, the exclusive right to conduct any proceedings or action, negotiate the settlement of the Claim, provided that any settlement contains no admission of liability or wrongdoing by the indemnified party, and to conduct all discussions and dispute resolution efforts in connection with the Claim).
9.3.4 The indemnified party shall, at the indemnifying party’s request, cost and expense, give the indemnifying party all reasonable assistance in connection with conduct of the Claim.
9.3.5 The indemnified party gives the indemnifying party prompt notice of any Claim or threatened Claim.
9.3.6 The indemnified party takes all reasonable steps to mitigate any liabilities which are the subject of the indemnity in this Section 9.
10.1 Provision of Services. Bitrise shall use commercially reasonable efforts to provide the Services in accordance with these Terms of Service and the applicable Documentation.
10.2 Warranty Disclaimers. NOTWITHSTANDING THE FOREGOING, THE WEBSITE AND THE SERVICES ARE PROVIDED "AS IS". BITRISE AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NEITHER BITRISE, NOR ITS SUPPLIERS AND LICENSORS MAKE ANY WARRANTY THAT THE WEBSITE OR THE SERVICES WILL BE ERROR FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS, SECURE, OR UNINTERRUPTED. CUSTOMER UNDERSTANDS THAT CUSTOMER DOWNLOADS FROM, OR OTHERWISE OBTAINS CONTENT OR SERVICES THROUGH, THE WEBSITE AT ITS OWN DISCRETION AND RISK. ALTHOUGH BITRISE MAKES REASONABLE EFFORTS TO UPDATE THE INFORMATION ON THE WEBSITE, BITRISE MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE SERVICES OR THE WEBSITE.
10.3 Additional Disclaimers. Bitrise does not guarantee:
10.3.1 that its Website, or any content on it, or the Services will always be available or be uninterrupted;
10.3.2 that the Website, the Services, or any content, will be free from errors or omissions;
10.3.3 that the Website or Services will be secure or free from bugs or viruses.
10.4 Content available on the Website and the Services. Bitrise has not reviewed, and cannot review, all the material, including computer software and Forum Content, posted to the Website or the Services by Customer or any other user of the Website or the Services, and therefore is not responsible for that content, its use or its effects including, but not limited to, Third-Party Services. However, Bitrise has the right to review such materials for the purpose of operating the Services, to ensure compliance with these Terms of Service, and to comply with applicable law or other legal requirements. By operating the Website and the Services, Bitrise does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful.
10.5 Content Posted on Links. Bitrise has not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which the Website links, and that link to the Website. Bitrise provides access only as a convenience, and does not have any control over those external resources, websites and webpages, and is not responsible for their contents or their use. By linking to an external (i.e., non-Bitrise controlled) website or webpage, Bitrise does not represent or imply that it endorses such website or webpage. Customer is solely responsible for taking precautions as necessary to protect itself and its computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and assumes all risk arising from its use of any such external resources, websites or webpages.
10.6 Third-Party Services. Bitrise makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content, effect or use of any Third-Party Services, or any transactions completed, and any contract entered into by Customer, with any such third party providing Third-Party Services. Any contract entered into and any transaction completed via any third party providing the Third-Party Services is between Customer and the relevant third party, and not Bitrise. Bitrise recommends that Customer refers to the third party's terms and conditions and privacy notice prior to using the relevant Third-Party Services. Customer is solely responsible for and may only use Third-Party Services at its own risk.
10.7 Beta and Evaluation Offerings. Bitrise makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content, effect or use of any Beta and Evaluation Offerings.
11.1 GENERAL.
11.1.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, OR THEIR AFFILIATES, SUPPLIERS, LICENSORS, OR SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF PROCUREMENT FOR SUBSTITUTE PRODUCTS OR SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY SUBJECT MATTER OF THESE TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON ANY WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT EITHER PARTY, OR THEIR AFFILIATES, SUPPLIERS, LICENSORS, OR SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
11.1.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN ANY WAY IN CONNECTION WITH THESE TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO BITRISE FOR USE OF THE SERVICES UNDER THESE TERMS OF SERVICE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION (OR ONE HUNDRED U.S. DOLLARS ($100), IF CUSTOMER HAS NOT HAD ANY PAYMENT OBLIGATIONS).
11.2 ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 11 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN BITRISE AND CUSTOMER, AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS TERMS OF SERVICE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11.3 Other. Without limitation on Section 11.1 above:
11.3.1 Bitrise shall not be liable for the use, contents, effects or availability of Beta and Evaluation Offerings, Third-Party Services, or the use of any interactive service by a user in contravention of these Terms of Service, the Acceptable Use Policy or Bitrise’s content standards, whether the service is moderated or not.
11.3.2 Bitrise shall not be liable for any loss or damage from Customer’s failure to comply with Customer’s security obligations set forth in these Terms of Service, including, but not limited to, the obligations set forth in Section 5.2 above.
11.4 Excluded. The foregoing limitations of liability shall not apply to the extent determined by a court of final jurisdiction that any of the limitations are prohibited by applicable law, such as, for instance, liability for death or personal injury arising from a party’s gross negligence, willful misconduct, fraud or fraudulent misrepresentation, or any liability that cannot be excluded or limited by the governing law specified in Section 12.14 below.
12.1 Marketing approval. Subject to prior mutual agreement of the parties, and subject to each party’s applicable tradename usage guidelines, each party shall have the right to indicate in its marketing materials the tradename and trademark of the other party, and the fact that this other party is a customer or service provider to the party.
12.2 Independent Contractors. Nothing in these Terms of Service or a Bitrise Order is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, appoint either party as the agent of the other party, or authorize either party to make or enter into any commitments for or on behalf of the other party. The sole relationship of the parties hereto is that of independent contractors.
12.3 Reseller Agreements. Bitrise may authorize resellers to resell the Services. If Customer concludes an agreement with such authorized reseller, any Fees due shall be paid in accordance with the applicable order. Customer explicitly acknowledges that such an agreement between Customer and the authorized reseller (i) is otherwise without prejudice to these Terms of Service; (ii) is only between Customer and the authorized reseller; and (iii) does not bind Bitrise in any way. Bitrise may terminate Customer’s access to the Services, the Website or the Plan or (any part of) these Terms of Service in the event Bitrise fails to receive payment for the Services from the reseller. Customer acknowledges that Bitrise has no warranty, support or any other obligations that go beyond these Terms of Service regardless of the warranty, support or other terms stated in the agreement between the authorized reseller and Customer, or in a reseller’s purchase order issued to Bitrise.
12.4 Assignment.
12.4.1 Customer shall not, without the prior written consent of Bitrise (which shall not be unreasonably withheld or delayed), assign its rights or obligations under these Terms of Service or any Bitrise Orders. Any attempt by Customer to so assign or transfer all or any of its rights or obligations under these Terms of Service or any Bitrise Orders without such consent shall be void.
12.4.2 Bitrise may not assign these Terms of Service without Customer’s prior written consent, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Bitrise shall not be required to obtain the prior written consent of Customer in the event of a change in Control of Bitrise, provided that the acquirer(s) assume(s) Bitrise’s obligations under these Terms of Service or any Bitrise Orders after such change of Control.
12.4.3 Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
12.5 Force Majeure. Bitrise shall have no liability to Customer under these Terms of Service if it is prevented from, limited from or delayed in performing its obligations under these Terms of Service, or from carrying on its business, by or through acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Bitrise or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, communicable disease, epidemic or pandemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. Bitrise shall notify Customer of such an event and its expected duration.
12.6 Notices.
12.6.1 General inquiries. For general inquiries, Customer shall send an email to letsconnect@bitrise.io or use the online channels available on the Website.
12.6.2 Support inquiries. For support inquiries, Customer shall use the online channels available on the Website, or reach out to the Bitrise contact designated in the Bitrise Order.
12.6.3 Mailing addresses. For purposes of notifications from Customer to Bitrise other than as specified in Sections 12.6.1 and 12.6.2 above, Customer shall use the following address:
Bitrise, Inc.
548 Market St, ECM #21638
San Francisco, CA 94104-5401
With a copy to:
Bitrise Limited
483 Green Lanes
London N13 4BS UK
12.6.4 Legal inquiries. For legal inquiries, Customer shall send an email to legal@bitrise.io, with a copy by mail to the addresses indicated in Section 12.6.3 above.
12.6.5 Notice to Customer. Bitrise shall have the right to provide notices to Customer using its standard processes for contacting its customers. For Customers with Bitrise Orders, Bitrise, when applicable, shall further utilize the contact information specified in the Bitrise Order.
12.6.6 Notices in writing. To the maximum extent permitted by applicable law (i) any notice sent by Bitrise shall be deemed valid when sent electronically, (ii) Bitrise reserves the right to post notices using the channels on the Website, rather than individually, (iii) Bitrise shall send Customer an individual notice, such as by email, as and when required by law or otherwise in accordance with Bitrise notice practices, (iv) notices will be deemed to have been delivered on the next business day after the date of being sent electronically, and not later than five (5) business days after the date of postmark of a notice being sent by mail (whether postal service or an internationally recognized overnight courier service) to an address permitted in this Section 12.6.
12.7 Benefit of the Bargain. Customer acknowledges and agrees that Customer would be able to insure itself against business interruption and theft, loss, destruction or corruption of data or information (and shall give due consideration to acquiring such insurance).
12.8 Compliance with Laws. Customer and Bitrise shall comply with all applicable laws, statutes, regulations, and Bitrise Policies.
12.9 Severability. If any court or relevant authority determines that any provision of these Terms of Service is unlawful or unenforceable, all remaining provisions will remain in full force and effect, and the provision at issue shall be deemed modified to the maximum extent permissible under law to effect its original intent. Bitrise retains the right in its sole discretion to terminate any Customer’s account in the event of any such determination that renders a material provision unlawful or unenforceable.
12.10 Waiver. If either party fails to insist that the other party performs any of its obligations under these Terms of Service, or if either party does not enforce its rights against the other party, or if either party delays in doing so, that will not mean that the party has waived its rights against the other party and will not mean that the other party does not have to comply with those obligations. If either party does waive a default by the other party, the party will only do so in writing, and that will not mean that this party has waived any later default by the other party. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise.
12.11 Headings. The section headings in these Terms of Service are for informational purposes only.
12.12 Dispute Resolution. In the event of a Dispute, the parties agree as follows:
12.12.1 If Customer elects to seek resolution of a Dispute, Customer must first send to Bitrise, by certified mail (signature required), a written notice of Customer’s claim addressed in accordance with Section 12.6.3 and 12.6.4 above. If Bitrise elects to seek resolution of a Dispute, Bitrise shall send a notice to the then-current email address specified in Customer’s account at the Website and/or using such other method of contacting Customer as Bitrise deems most effective. The foregoing notices shall describe the nature and basis of the Dispute, and the specific relief sought.
12.12.2 The parties agree to use good faith efforts using discussion among the parties’ respective management to settle any Dispute within thirty (30) days of a party’s receipt of notice of a Dispute from the other party. The parties may, by mutual agreement, extend such period by successive thirty (30) day periods.
12.12.3 Any Dispute arising out of or related to these Terms of Service that is not resolved under Section 12.12.2 (including, but not limited to, any question regarding its existence, applicability, validity or termination), shall be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which rules are deemed to be incorporated by reference into this section as modified by these Terms of Service. The arbitration shall be administered by the AAA. The AAA Commercial Arbitration Rules and filing forms are available online at www.adr.org, by calling the AAA using its current phone number(s), or by contacting Bitrise. Customer may download or copy a form notice and a form to initiate arbitration at www.adr.org.
12.12.4 Arbitration shall be conducted by a single arbitrator who is competent in conducting arbitration remotely and who is experienced in the field of enterprise SaaS contracts and enterprise data center service contracts. The arbitration will take place remotely by video conference calls unless either (i) the arbitration requires a physical location in which case it shall be at the offices of Bitrise in London, England, or (ii) the parties mutually agree to a different physical location. The parties will share the costs of arbitration, including the fees and expenses of the arbitrator, equally, unless the AAA Rules and/or the arbitration award provides otherwise. Each party will bear its cost of preparing and presenting its case.
12.12.5 The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of these Terms of Service. The arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which any and all decisions and awards, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding, and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits. During any arbitration, the amount of any settlement offer made by Bitrise or Customer must not be disclosed to the arbitrator. The arbitrator shall not permit discovery absent a written decision by the arbitrator based on a showing of substantial need by a party based on written submissions of both parties. The arbitrator shall have no authority to award specific performance or any award or damages in excess of the limitations of liability specified in these Terms of Service. The arbitrator shall state his/her opinions in writing along with his/her reasons for the decision.
12.12.6 Customer understands and agrees that, by entering into these Terms of Service, Customer and Bitrise are each waiving the right to a trial by jury and to participate in a class action. As limited exceptions to the above, Customer and Bitrise agree that nothing in these Terms of Service will be deemed to waive, preclude, or otherwise limit their rights to: (i) bring an individual action in small claims court if such individual action qualifies; (ii) pursue enforcement of an arbitrator’s award through applicable federal, state, or local judicial or other agencies where such actions are available; or (iii) seek injunctive relief or to file suit in a court of law to address intellectual property infringement claims.
12.12.7 Except as provided in Section 12.12.6 above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that Bitrise or Customer prevails on a claim and seeks public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
12.13 No Class Actions.
12.13.1 Customer and Bitrise agree that each may bring claims against the other only in their individual capacity, to be resolved by binding, individual arbitration as set forth above, and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both Customer and Bitrise agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of Section 12.12 and this Section 12.13 shall be null and void; provided that, with the exception of any of the provisions in this Section 12.13.1, if an arbitrator or court of competent jurisdiction decides that any part of these Terms of Service is invalid or unenforceable, the other parts of these Terms of Service will still apply.
12.13.2 Customer may opt-out of the class action waiver above within thirty (30) days from the date that Customer first accepts these Terms of Service. Customer may opt out of the waiver by mailing written notification to Bitrise at the address stated in these Terms of Service. The written notification must include (i) Customer name, (ii) Customer address, and (iii) a clear statement that Customer does not agree to the class action waiver. Customer’s decision to opt-out will have no adverse effect on its relationship with Bitrise. Any opt-out request received after the 30-day deadline will not be valid. Neither Customer, nor any other user of the Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
12.14 Governing Law. These Terms of Service (and any further rules, policies, or guidelines incorporated by reference), and any Dispute arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims), whether interpreted in a court of law or in arbitration, shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions.
12.15 Jurisdiction. To the extent that any lawsuit or court proceeding is permitted under these Terms of Service, each party irrevocably agrees that the state and federal courts located in the Northern District of California shall have exclusive jurisdiction to adjudicate and settle any dispute or claim arising out of or in connection with these Terms of Service or their subject matter or formation (including non-contractual disputes or claims), and each party waives any objection to jurisdiction and venue in such courts.
12.16 Updates/Amendments to these Terms of Service. Bitrise reserves the right to update and change the Terms of Service from time-to-time. Such updates or changes to these Terms of Service shall take effect from the date indicated in the updated Terms of Service, or the related notification provided by Bitrise. Bitrise will inform Customer of such updates and changes to the Terms of Service in accordance with Section 12.6 above. Customer’s continued access or use of the Services on or after the effective date of the updates and changes to these Terms of Service constitutes Customer’s acceptance of any updates and changes. If Customer does not agree to any updates or changes, Customer must stop using the Services. Customer may at any time terminate these Terms of Service in accordance with the termination provisions applicable to Customer in these Terms of Service. Customer can review the most current version of the Terms of Service at any time at https://www.bitrise.io/terms (or such other link as Bitrise may provide for its Terms of Service). Bitrise may post and update the Bitrise Policies from time-to-time in accordance with Bitrise’s applicable procedures therefor.
12.17 Entire Agreement. These Terms of Service, the Bitrise Add-ons Terms and Conditions (if applicable), and the Bitrise Order (if applicable), constitute the entire and exclusive understanding and agreement between Bitrise and Customer in relation to the Services. These Terms of Service supersede and replace all prior and contemporaneous oral or written understandings or agreements between Bitrise and Customer regarding the Services. In case of conflict, the order of precedence of the documents constituting these Terms of Service is as follows, each listed document superseding in the event of any conflicting provision in a later listed document: (i) Terms of Service, (ii) Bitrise Add-ons Terms and Bitrise Conditions, (if applicable). A Bitrise Order shall expressly specify whether these Terms of Service or a master services agreement apply, and, in the absence of expressly so stating, then these Terms of Service shall govern Bitrise Orders. Except as expressly stated in these documents, Bitrise does not undertake other commitments or obligations to Customer. All conflicting terms in any purchase order or other business form employed by Customer, including any electronic invoicing portals, or vendor registration processes are hereby rejected by Bitrise and null and void ab initio. Customer acknowledges that Customer has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Bitrise which is not set out in these Terms of Service and that Customer shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms of Service. Any additional or amended terms sent to Bitrise at any time by Customer are hereby expressly rejected.