Terms and Conditions / Website Terms of Use / Privacy Policy © 2024 Instabug, Inc.
Updated: June 8th, 2023
This Instabug Customer Agreement ("Agreement") is entered into as of the date you click "Sign up” or “I agree” or otherwise indicate your assent (the "Effective Date") by and between Instabug, Inc. ("Instabug") and you ("Customer" or "you"). Instabug and Customer are each sometimes individually referred to herein as a "Party" and both entities are sometimes collectively referred to herein as the "Parties." By clicking "Sign up" or "Agree" or otherwise indicating your assent, by accessing or using the Instabug SDK (as defined below) or any Services (as defined below), or by entering into an Order Form (as defined below), you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of an entity, you represent that you have the authority to and you hereby bind such entity to this Agreement. If you do not have such authority or you do not agree to this Agreement, do not access or use the Instabug SDK or any Services. This is a legally enforceable contract.
Instabug and Customer, intending to be legally bound, agree as follows:
1.1 Provision of Services. Instabug will make certain products and services (collectively, "Services") available to Customer pursuant to this Agreement and the applicable Order Form(s) or through Instabug’s proprietary Software Development Kit ("Instabug SDK"). An "Order Form" is an ordering document that (a) specifies the Services to be provided thereunder; (b) is governed by the terms of this Agreement; and (c) is entered into between Customer and Instabug. Each Order Form, which may include supplemental terms and conditions, is incorporated into this Agreement by reference. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by Instabug regarding future functionality or features.
1.2 Access. Any access to the Instabug SDK by or on behalf of Customer shall be (a) adequately and appropriately monitored by Customer; (b) limited solely to then-current employees, consultants, contractors, or agents of Customer whom Customer has expressly authorized for such access; and (c) subject to, and Customer shall ensure that each Authorized User (as defined below) agrees to and complies with Instabug’s then-current End-User Terms of Service.
1.3 Additional Services & Modules. Instabug may, from time to time, offer additional modules and value added Services in connection with the Instabug SDK.Customer shall not be obligated to purchase any additional Services, but in the event Customer agrees to use any additional Services, Customer will be charged accordingly.
1.4 Fees. Access to Services that Customer purchases or licenses is provided for the fees set forth in each Order Form, and Customer shall pay Instabug all such fees in accordance with the payment terms set forth in the applicable Order Form. With respect to Instabug SDK Services (as described in Exhibit A, which is attached hereto and incorporated herein) received by Customer for which an Order Form is not in effect, Customer shall pay Instabug for such Instabug SDK Services in accordance with the pricing set forth in Exhibit A. If an Order Form is not in effect, when you subscribe to a paid Customer plan, you will be asked to selecta plan to access the Services, which includes: (a) the Services you will receive and (b) the fee you must pay to Instabug in exchange for your right to access the Services. You will also have the ability to select additional services beyond your plan. All such information is incorporated into this Agreement by reference. The fees for any additional Services shall be set forth in the applicable Order Form(s). Customer may also make purchases, or incur pass-through fees, via the Instabug SDK or the Services. Customer shall acknowledge that by continuing with any such transaction, Customer authorizes any additional charges therefore (including any applicable charges for cancelling such transaction). All payment obligations are non-cancelable, and all fees paid are non-refundable.
1.5 Payment. Customer authorizes Instabug to charge, debit or otherwise obtain from Customer’s designated payment method for all payments due. Customer is responsible for providing complete and accurate billing and contact information to Instabug and notifying Instabug of any changes to such information. In the event that a scheduled payment is declined or fails for any reason, Instabug shall notify Customer of such failure and Customer shall provide updated payment within forty-eight (48) hours. If any amount due is not received by Instabug by the due date, then without limiting any of Instabug’s rights or remedies (whether under this Agreement, at law, in equity or otherwise), Instabug may take any or all of the following actions: (a) charge late interest on such overdue amounts at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; or (b) suspend access to any or all Services.
1.6 Taxes. Customer will be responsible for paying or, at Instabug’s option, reimbursing Instabug for, all taxes, if any, based upon the provision of the Services, including federal, state and local property, privilege, sales, use, excise or similar taxes, other than taxes on Instabug’s net income, property, and employees. With respect to any payment or reimbursement obligation of Customer in connection with this Agreement, Customer hereby authorizes Instabug to, without prior notice and without any further approval, deduct such amounts from any prepaid or outstanding balance or to charge, debit or otherwise obtain such amounts from any designated payment method, as applicable.
1.7 Exclusivity. This Agreement is non-exclusive. Nothing in this Agreement shall preclude Instabug from (a) marketing, selling, integrating, licensing, providing or maintaining any products or services for the benefit of any third party; or (b) conducting any business or developing or commercializing any products or services (even if such business, products or services are competitive with any of Customer’s businesses, products or services), provided that Instabug is not expressly violating the terms of this Agreement with respect to such activities.
1.8 Free Trial. If Customer obtains a free trial or free Services, the applicable provisions of this Agreement will also govern that free trial or those free Services.Such free trial or free Services might be services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly indicated as beta, pilot, developer preview, non-production, evaluation, or another similar description. Instabug will make such Services available to Customer free of charge until the earlier of (a) the end of the free trial period, (b) the start date of any Order Form for such Services, or (c) termination by Instabug in its sole discretion. Additional trial terms and conditions may appear on Instabug’s website or the Instabug SDK, and any such additional trial terms and conditions are incorporated into this Agreement by reference.
2.1 Authorized Users. Customer shall be responsible for Authorized Users' compliance with this Agreement, compliance with the law, and use of the Services. An "Authorized User" is an individual that (a) is an employee, consultant, contractor, or agent of Customer; and (b) has been provided personal access credentials to the Services by Customer, or at Customer’s request.
2.2 Use Restrictions. Customer shall not, and shall not permit any third party to, access or use the Services except as expressly authorized by this Agreement and Applicable Order Forms. For purposes of clarity and without limiting the generality of the foregoing, except as expressly authorized by this Agreement, Customer shall not:
a) copy, modify, or create derivative works or improvements of the Services;
b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
d) bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;
e) input, upload, transmit, or otherwise provide to or through the Services or Instabug’s systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Malware (as defined below);
f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Instabug’s systems, or Instabug’s provision of services to any third party, in whole or in part;
g) remove, delete, alter, or obscure any warranties, disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Instabug SDK or any Services or from any software or other materials incorporated by Instabug into the Instabug SDK or otherwise provided or made available to Customer (or Authorized Users) by Instabug (collectively, including the Instabug SDK, "Instabug Materials");
h) access or use the Services or Instabug Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Instabug customer), or that violates any applicable law;
i) access or use of the Services or Instabug Materials in, or in association with, the transmission of "Highly Sensitive Personal Information" defined as an (i) individual's government-issued identification number (including Social Security number, driver's license number, or state-issued identification number); (ii) confidential financial information, financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, or password that would permit access to an individual's financial account; or (iii) biometric, genetic, health, medical, or medical insurance data;
j) access or use the Services or Instabug Materials for purposes of competitive analysis of the Services or Instabug's Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Instabug's detriment or commercial disadvantage; or
k) otherwise access or use the Services or Instabug’s materials beyond the scope of the authorization granted.
2.3 Effect of Customer Failure or Delay. Instabug is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform or comply with, any of its obligations under this Agreement.
2.4 Customer’s Plan Limits. Customer’s employees, consultants, contractors, or agents designated as named Authorized Users shall not share their login information (username and password) to the Services with any other party, including without limitation other employees, consultants, contractors, or agents of the Customer. Customer shall not exceed any limitations of Customer's selected Services. Customer is obligated to promptly inform Instabug and upgrade Services prior to exceeding the limitations of the Services they have purchased, whether that is Authorized Users, number of apps, number of monthly sessions, or otherwise.
2.5 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data (as defined below), including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
2.6 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of theServices.
2.7 Corrective Action and Notice. If Customer becomes aware of any actual or threatened unauthorized activity, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within the irrespective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their system and destroying any data to which any of them have gained unauthorized access); and (b) notify Instabug of any such actual or threatened activity.
3.1 Term. This Agreement commences on the day Customer first accepts it and continues until all Services hereunder have ceased to be provided and/or Order Forms hereunder have expired or been terminated. The term for Services shall be as specified in the applicable Order Form. Except as otherwise specified in anOrderForm, Order Forms will automatically renew for additional one-year periods, unless either Party gives the other written notice at least 30 days before the end of the relevant Order Form term. Any Services received on an annual basis prior to Instabug’s Order Form process, or the Instabug SDK Services received by Customer for which an Order Form is not in effect, shall auto-renew in the same manner.
3.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (a) Instabug may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues for more than seven days after Instabug's delivery of written notice of such failure; (b) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 60 days after the non-breaching Party provides the breaching Party with written notice of such breach; and (c) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. In no event will termination relieve Customer of its obligation to pay any fees payable to Instabug for the period prior to the period prior to the effective date of termination. If this Agreement is terminated by Instabug in accordance with this provision, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. Except as otherwise expressly set forth in the applicable Order Form, the Parties may not terminate any Services for convenience. Upon expiration or termination of this Agreement, Instabug will, at no additional cost to Customer, provide Customer with certain access to Customer Data, provided that such access (y) will be provided in a commercially reasonable manner designated by Instabug (as such manner may be updated by Instabug from time to time); and (z) is subject to the terms of this Agreement (including Sections 2.2and 4.1).
4.1 Confidentiality. "Confidential Information" means confidential or other proprietary information that is disclosed or made available by one Party to the other Party under this Agreement, including without limitation the Instabug SDK, any hardware and software designs, specifications and documentation, business and product plans, other confidential business information, and any non-public personal information ("NPPI"). Confidential Information excludes information that the receiving Party can demonstrate (a) is or becomes public knowledge without any breach of this Agreement (or any other written agreement between the Parties); (b) is disclosed by the receiving Party with the prior written approval of the disclosing Party; (c) is already known to the receiving Party (from a source other than the disclosing Party) without an obligation of confidentiality; (d) is rightfully received by the receiving Party, without confidentiality restrictions, from a third party; or (e) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Each Party agrees to observe complete confidentiality with respect to the Confidential Information; not to disclose, or permit any third party or entity access to, the Confidential Information (or any portion thereof) without prior written permission of the Party disclosing such Confidential Information unless compelled by law to do so; and to ensure that any employees or third parties who receive access to the Confidential Information are advised of the confidential nature thereof and are prohibited from copying, utilizing or otherwise revealing the Confidential Information without prior authorization; provided that such Confidential Information may be disclosed to the extent required by any applicable law or judicial or governmental order, provided further that the receiving Party gives the disclosing Party (to the extent legally permissible) sufficient prior notice to contest such order. Without limiting the foregoing, each Party agrees to employ with regard to the Confidential Information procedures no less restrictive than the procedures used by it to protect its own confidential and proprietary information. The receiving Party shall notify the disclosing Party in writing as soon as reasonably possible, and as not otherwise precluded by law or order, after discovery of any unauthorized use or disclosure of the disclosing Party’s Confidential Information. Subject to any retention or use reasonably necessary to perform or enforce this Agreement, the receiving Party agrees to return or destroy the disclosing Party’s Confidential Information (including any copies, summaries or excerpts thereof) upon expiration or termination of this Agreement (or the applicable Order Form), and any such destruction shall be certified in writing and provided to the disclosing Party upon reasonable request. Customer represents, warrants, and covenants that it has not and shall not improperly use, or disclose or make available to Instabug or any of Instabug’s directors, officers, employees or agents, any confidential information of any current or former client or other person or entity with whom Customer has an agreement or duty to keep such information confidential, except to the extent such use or disclosure is consented to in writing by such client, person or entity.
4.2 Customer Data. As between Customer and Instabug, Instabug hereby confirms Customer’s ownership of any data, information, access, credentials, instructions, materials or other content provided or made available by or on behalf of Customer to Instabug through the Instabug SDK or otherwise under this Agreement (collectively, "Customer Data"). Customer represents, warrants, and covenants to Instabug that (a) the Customer Data shall at all times be current, accurate, true, lawful, lawfully obtained and complete, shall not infringe or violate any third party rights, and shall, as applicable, be updated by Customer as soon as practicable; (b) Customer has provided all notices and obtained all rights, consents and authority necessary to (i) provide to Instabug, and for Instabug to use as permitted under this Agreement, the Customer Data and (ii) obtain or access any data, materials or other content that Customer requests or orders through or in connection with the Instabug SDK or any Services; and Customer Data does not contain: (i) protected health information or information subject to HIPAA compliance or other relevant law or regulation; (ii) information subject to SOX, GLBA requirements or other relevant law or regulation; (iii) information that falls within the definition of “special categories of data” under data protection laws. Customer understands that Instabug requires access to certain data in order to provide the Services. However, Instabug does not request or require NPPI of the Customer’s end users in order to provide the Services. Any NPPI shared with Instabug is done at Customer’s discretion and Customer is responsible for ensuring it: 1) has obtained all necessary consents to share such NPPI; and 2) does not unnecessarily provide Instabug with its end users’NPPI. Customer hereby grants to Instabug the non-exclusive right to use Customer Data, solely in accordance with Instabug’s Privacy Policy and this Agreement, as reasonably necessary for Instabug to offer, provide and improve the Services. However, Instabug will not retain, use, or disclose NPPI or any other personal information (as defined by applicable data protection laws) provided by Customer to Instabug hereunder for any purpose other than the specific purpose of performing the Services specified in this Agreement. Customer authorizes Instabug to contact Customer for any lawful purpose, including marketing and sales. Customer is required to request explicit user consent whenever the Customer is using Services to track data about how the Customer’s users are using Customer’s mobile application. Customer is required to add to the Customer’s privacy policy a clear clause that explains the data that is being tracked and the terms of using such data. To the extent that Instabug processes any personal data on Customer’s behalf, in the provision of the Services, the terms of the Data Processing Addendum available at http://www.instabug.com, which is hereby incorporated by reference, shall apply. Customer hereby grants to Instabug a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable license to create, process, reproduce, store, display, modify, translate, create derivative works from, distribute, make available and otherwise use Aggregated Data (as defined below) in connection with developing, providing, maintaining, supporting, or improving Instabug’s current and future products and services, in connection with developing, using, or distributing general analyses or insights, or for any other lawful purpose. "Aggregated Data" means any data that is based on or derived from any data provided or made available by Customer or an Authorized User through the Instabug SDK or otherwise under this Agreement, which has been aggregated and de-identified in a manner that does not designate or identify Customer or its Authorized Users as the source of such data and modified so that it cannot be associated with a specific individual.
4.3 Intellectual Property. No intellectual property rights of Instabug are transferred pursuant to this Agreement. Customer hereby recognizes that Instabug retains all rights, title, and interest in and to the Instabug SDK and Services, including all related intellectual property rights. Customer hereby confirms Instabug’s ownership of all of the Instabug SDK and Services and agrees that (a) any and all rights acquired by Customer regarding the Instabug SDK or Services shall inure to the sole benefit of Instabug; and (b) Customer shall not engage in or authorize any act or omission that would violate, contradict, challenge or limit Instabug’s intellectual property rights. Customer has the right to access and use the Services subject to the terms of applicable Order Forms and this Agreement. Instabug reserves all rights not expressly granted to Customer under this Agreement.
4.4 Residual Knowledge. Nothing contained in this Agreement will restrict Instabug from using any feedback, skills, knowledge, concepts, methodologies, functionalities, processes, techniques or information in intangible form that is gained through the performance of this Agreement or access to Customer’s information or materials (collectively, "Residuals"). All Residuals shall remain the property of Instabug. If Customer provides any ideas, proposals, suggestions or other materials to Instabug (collectively, "Feedback"), Customer hereby acknowledges and agrees that such Feedback is not confidential, and that Customer’s provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Instabug under any fiduciary or other obligation. Customer agrees that Instabug does not control and is not responsible for any Feedback or the use or misuse (including any distribution) by any third party of Feedback. In addition, by providing Feedback, Customer hereby grants to Instabug a non-exclusive, perpetual, irrevocable, non-terminable, transferable, worldwide right and license (including the right to grant and authorize sublicenses through multiple levels) to such Feedback and all intellectual property rights pertaining to Feedback for any and all purposes and in any and all media, whether alone or together or as part of any material of any kind or nature, and Customer waives all moral and similar rights in connection therewith.
5.1 Indemnification. The Parties shall each defend and hold harmless the other Party (including its directors, officers, employees and agents) from and against any and all liabilities, damages, costs and expenses (collectively, “Losses”) incurred by the other Party to the extent resulting from any claim, action, suit, or other legal proceeding (“Action”) by a third party (other than an affiliate of Customer) to the extent arising from (i) the indemnifying Party’s breach of this Agreement or (ii) the indemnifying Party’s gross negligence or willful misconduct in connection with this Agreement.
5.2 Exclusions. The foregoing indemnification obligation as to Instabug does not apply to the extent that any alleged infringement or misappropriation arises from:
a) Customer Data;
b) other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Instabug's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User;
c) products or services made, made available, marketed, commercialized, supported or distributed by Customer;
d) access to or use of the Instabug SDK in combination with any hardware, system, software, network, or other materials or service not provided by Instabug;
e) modification of the Instabug SDK or Services not made by Instabug;
f) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Instabug; or
g) any act or omission by or on behalf of Customer not in compliance with this Agreement.
5.3 Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Agreement, as the case may be. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that imposes any liability or obligation on any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed.
5.4 Mitigation. If any of the Services or Instabug Materials are, or in Instabug's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Customer's or any Authorized User's use of the Services is enjoined or threatened to be enjoined, Instabug may, at its option and expense:
a) obtain the right for Customer to continue to use the Services and Instabug Materials materially as contemplated by this Agreement;
b) modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services, as applicable, under this Agreement; or
c) in the event that Instabug cannot secure either of the foregoing options using reasonable efforts, then Instabug may terminate this Agreement and any licenses granted hereunder, and Instabug shall provide a pro-rata refund to Customer for any pre-paid but unused fees at the time of such termination.
5.5 Warranty Disclaimer. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT, INSTABUG DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE,CONCERNING THE INSTABUG SDK OR ANY OTHER INSTABUG PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. INSTABUG DOES NOT PROVIDE LEGAL ADVICE, DOES NOT GUARANTEE ANY PARTICULAR RESULTS AND DOES NOT WARRANT THAT ANY SERVICES WILL BE ERROR FREE OR THAT ANY PARTICULAR ERROR OR INACCURACY WILL BE CORRECTED. INSTABUG’S PERFORMANCE OF THE SERVICES SHALL AT ALL TIMES BE CONDITIONED UPON CUSTOMER’S PROPER AND TIMELY (A) PROVISION OF CURRENT,ACCURATE, TRUE, LAWFUL, LAWFULLY OBTAINED AND COMPLETE CUSTOMER DATA; AND (B) PERFORMANCE OF ITS OBLIGATIONS HEREUNDER.
5.6 LIMITATION OF LIABILITY. IN NO EVENT WILL INSTABUG, ITS AFFILIATES OR ANY OF ITS OR THE IRRESPECTIVE LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A) LOSS OF PRODUCTION, USE, DATA, BUSINESS, OPPORTUNITY, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT,INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (C) COST OF REPLACEMENT OR SUBSTITUTE GOODS OR SERVICES; (D) LOSS OF GOODWILL OR REPUTATION; OR (E) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY,ITS AFFILIATES AND ITS AND THE IRRESPECTIVE LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY,EXCEED EITHER (A) THE TOTAL AMOUNTS PAID BY CUSTOMER TO INSTABUG UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) $100,000.00, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
5.7 Third Party Providers. Instabug may use certain third-party providers to gather Customer-related data and other information from, and transmit such information to, financial institutions for accounting purposes or other purposes related to the Instabug SDK or Services. Customer hereby appoints such third-party providers as Customer’s authorized agents to access and transmit such information for such purposes and to perform such services. Customer will be responsible for providing reasonably requested (or customary) pertinent information to or for such third-party providers, and taking reasonably requested (or customary) actions, in connection with such services. Instabug shall not be liable or responsible for any acts or omissions of any third-party provider, or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto.
5.8 Sole Remedy. THIS SECTION SETS FORTH CUSTOMER'S SOLE REMEDIES AND INSTABUG'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
5.9 Miscellaneous.
5.10 Representations and Warranties. Each Party represents and warrants to the other the following: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate, partnership or limited liability company action, as applicable, and do not and shall not violate any law; and this Agreement is a valid obligation of such Party, enforceable against such Party in accordance with its terms; (b) it is in compliance with all laws applicable to its performance under this Agreement; (c) it will perform its respective obligations set forth in this Agreement in a professional manner; and (d) neither the execution and delivery of this Agreement, nor the performance of any obligations under this Agreement shall conflict with or result in a default under any of the terms or conditions of any agreement or obligation to which such Party is bound.
5.11 Independent Contractors. The Parties are independent contractors. Neither Party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other Party. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.
5.12 Publicity. Instabug may use Customer’s name and logo in marketing. Public announcements beyond referencing Customer as a customer of Instabug shall be subject to Customer’s approval, not to be unreasonably withheld.
5.13 Notices. All notices to Instabug shall be in writing and delivered by hand or by certified mail or overnight delivery service to Instabug; Attn: Instabug, Inc. Legal Department;855 El Camino Real, Suite 13A-111; Palo Alto, CA 94301 in addition to sending a copy to legal@instabug.com. All notices to Customer shall be sent by email to the email address associated with Customer’s account. Notices shall be effective when delivered in accordance with the foregoing.
5.14 Force Majeure. Neither Party shall be liable to the other for failure or delay in performance under this Agreement if such failure or delay is caused by riot, flood, earthquake, natural disaster, electronic virus, electronic attack of infiltration, internet disturbance, government act or any other cause beyond such Party’s control, provided that the affected Party gives prompt notice of such condition and uses reasonable efforts to resume performance as soon as practicable.
5.15 Assignment.Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that Instabug may assign (a) any rights or obligations hereunder to an affiliate; or (b) this Agreement in its entirety in connection with a merger, acquisition or similar transaction.
5.16 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of California, excluding its conflict of laws provisions.
5.17 Dispute Resolution. In the event of any controversy or claim arising out of or in connection with this Agreement, or a breach thereof, the Parties agree to use the following procedure. Except as otherwise set forth in this Agreement, the Parties shall first attempt to settle the dispute by good faith discussion. The Parties consent and submit to the exclusive jurisdiction and venue over any Action that may arise out of or in connection with this Agreement in the courts located in San Francisco County, California, provided that either Party may, without limiting any of its rights or remedies (whether under this Agreement, at law, in equity or otherwise), seek injunctive relief and other equitable remedies at any time in any court of competent jurisdiction for any actual or threatened breach of this Agreement relating to intellectual property rights or confidentiality obligations. Each Party acknowledges that its breach of any of the provisions related to its confidentiality obligations or the other Party’s intellectual property rights may cause irreparable injury to the other Party for which monetary damages are not an adequate remedy.
5.18 Trade Compliance. Customer agrees and understands that the Instabug SDK and Services are subject to U.S. export controls and sanctions laws and regulations, and the export controls and sanctions laws of any other applicable jurisdiction. Customer agrees and acknowledges that Customer will not access, register for, or otherwise use the Instabug SDK or Services in a country or region subject to U.S. comprehensive trade sanctions (including Cuba, Iran, North Korea, Syria, the Crimea region, the Donetsk People’s Republic (“DNR”), and Luhansk People’s Republic (“LNR”) of Ukraine) (“Embargoed Countries”), nor will Customer use the Instabug SDK or Services in any manner prohibited by U.S. export controls or sanctions laws and regulations. Customer represents that it is not (i) a resident or national of any Embargoed Countries, or an entity organized under the laws of any Embargoed Countries; (ii) designated on any list of prohibited or restricted parties maintained by the U.S. Government or other applicable jurisdictions, including but not limited to the Office of Foreign Assets Control’s (OFAC) Specially Designated Nationals and Blocked Persons List; other OFAC Lists or Directives; the Entity, Denied Persons, Military End User, and Unverified Lists maintained by the U.S. Department of Commerce; and the UN Security Council Consolidated List; or (iii) 50% or more owned by any party designated on any of the above lists. Customer agrees and understands that Instabug may terminate Services and this Agreement immediately without notice or liability to comply with applicable export controls and sanctions laws and regulations, in its sole and absolute discretion.
5.19 Entire Agreement. This Agreement, including any applicable Order Form and any document attached hereto and incorporated by reference to this Agreement or an Order Form, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. For the avoidance of doubt, (a) this Agreement shall replace any prior version of this Agreement, whether titled “Instabug Customer Agreement”, “Terms of Service” or otherwise, and (b) any Services previously purchased under an Order Form, Statement of Work, or under any addendum or amendment to a prior version of this Agreement shall remain in full force and effect and will be governed by the terms of this Agreement. In the event of any conflict between the terms and provisions of this Agreement and those of any Order Form or exhibit, the following order of precedence shall govern: (a) first, the applicable Order Form; (b) second, the exhibit to the applicable Order Form; (c) third, this Agreement, exclusive of its exhibits; and (d) lastly, any exhibits to this Agreement. In the event that there is more than one Order Form between the Parties for the same Services, the more recent Order Form will serve to replace and terminate the prior Order Form for such Services.
5.20 Amendment. From time to time, in Instabug’s sole discretion, Instabug may amend the terms and conditions of this Agreement (other than the terms expressly set forth in an Order Form). Such changes will become effective upon notice to Customer but will not apply retroactively. By continuing to receive, use or access the Instabug SDK or any Services, Customer agrees to be bound by the amended terms of this Agreement. No other change of any of the provisions hereof shall be effective unless and until set forth in writing and duly signed by an officer of Instabug and by Customer.
5.22 Severability. This Agreement is severable, and if any provision of this Agreement is, for any reason, finally determined to be invalid, illegal or unenforceable, such provision shall be enforced to the maximum extent legally permissible and such invalidity, illegality, or unenforceability shall not affect any of the remaining provisions of this Agreement.
5.23 Waiver. The failure to insist upon strict compliance with any of the provisions of this Agreement shall not be deemed a waiver of any such provision, nor shall any waiver or relinquishment of any right or power hereunder, at any one or more times, be deemed a waiver or relinquishment of such right or power at any other time or times.
5.24 Survival. Subject to the terms of this Agreement: (a) the confidentiality and indemnification obligations of the Parties contained herein will survive the expiration or earlier termination of this Agreement; and (b) any provision that, in order to give proper effect to its intent or express terms, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement.
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