SAAS AGREEMENT - TERMS OF SERVICE
These terms of service are entered into by and between you, as a Customer or a User, and Codacy Inc., a US based company (hereinafter referred to as “Codacy”). The following terms and conditions, together with any and all policies referred to herein as well as any of Codacy’s operation rules (collectively this “Agreement”), govern your access to and use of the Services (as defined below).
PLEASE READ THE AGREEMENT CAREFULLY BEFORE YOU START TO USE THE SERVICES. BY USING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THIS AGREEMENT. IF YOU DO NOT WANT TO AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE REFRAIN FROM USING THE SERVICES.
- Customer shall mean the individual or corporation (including its End Users) that subscribes to a paid plan available at the Website.
2. SAAS SERVICES
2.1. Codacy hereby grants to the Customer or User a non-exclusive, non-assignable, right to access and use the SaaS Services solely for its internal business operations subject to the terms of this Agreement. For the avoidance of doubt, Customer shall during the Subscription Term input its proprietary computer code (the “Customer Code”) into the SaaS Services.
2.2 Customer or User represents, covenants, and warrants that will use the Services only in compliance with Codacy’s authorized scope hereunder, standard Codacy-published policies (which may be updated from time to time) and all applicable laws and regulations. Although Codacy reserves the right to monitor Customer or User’s use of the Services, and prohibits any use of the Services it believes may be (or alleged to be) in violation of this Agreement.
2.3. Customer or User hereby acknowledges that this Agreement is a services agreement and Codacy will not be delivering copies of the Software to Customer as part of the SaaS Services.
2.4. As part of the registration process, Customer or User shall use an independent third party application (the “Third Party Application”) to sign up for a Codacy account. Codacy reserves the right at its sole discretion to refuse registration of Customer or User, or cancel accounts it deems inappropriate.
3.1. Customer or User shall not, and shall not permit anyone to:
- copy or republish the SaaS Services or Software;
- use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties;
- modify or create derivative works based upon the SaaS Services;
- remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or remove any proprietary notices or labels;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law;
- access the SaaS Services in order to build a similar product or competitive product;
- distribute, market or otherwise make available the Services to, or perform the foregoing for, any non-User, whether by sublicense, transfer, assignment, license, deposit or otherwise.
3.2. Customer or User shall be responsible for obtaining and maintaining any equipment and ancillary services (excluding the Codacy Third Party Application) needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer or User shall also be responsible for maintaining the security of the Equipment (excluding the security of the Services provided by Codacy), passwords and files, and for all uses of User or Customer account or the Equipment with or without Customer’s or User’s knowledge or consent.
4. SUPPORT AND MAINTENANCE SERVICES
4.1. Support and Maintenance Services are included in the SaaS Service subscription and entitles Customer to the following:
- Electronic support (email@example.com) in order to help Customer or User locate and correct problems with the Software.
- Bug fixes and code corrections to correct Software malfunctions, but only to the extent reproducible by Codacy, in order to bring such Software into substantial conformity with the operating specifications.
- All extensions, enhancements and other changes that Codacy, at its sole discretion, makes or adds to the Software and which Codacy furnishes, without charge, to all other Customers of the SaaS Service.
5. FEES AND PAYMENT
5.1 Our pricing and payment terms are available at Codacy.com/pricing. If Customer agrees to subscribe to a plan subject to payment, such price (the “Fee”) will remain the Customer’s Fee for the duration of the Subscription Term, provided that Codacy may change the Fee at any time and such new fees shall become effective for any subsequent renewal of the Subscription Term. Subject to applicable law, Customers accept the new fees by continuing to use the Services after the price change takes effect. Codacy acknowledges and agrees that it shall notify the Customer in writing of any changes in the Fee.
5.2. Codacy will immediately bill the Customer when the Customer upgrades from the free Service Plan to any paying Service Plan. In case the Customer changes from a monthly billing Service Plan to a yearly billing Service Plan, Codacy will bill the Customer for a full year at the next monthly billing date. If the Customer decides to upgrade to a higher Service Plan or increase the number of End Users in the Service Plan, Codacy will bill the Customer at the date of the upgrade or increase. Customers may change the Service Plan or increase the number of End Users at any time by going to the billing settings available on the “Plan and Billing” section on Services platform. If the Customer chooses to downgrade the Service Plan, the Customer acknowledges that it will lose access to content, features, or capacity of the previous Service Plan. The Customer may also reduce the number of End Users, or replace an End User in the Service Plan.
5.3. For monthly or yearly payment plans, the Service Plan is billed in advance on a monthly or yearly basis respectively and is non-refundable. There will be no refunds or credits for partial months of service (with the exception of the established in Section 5.6.), downgrade refunds, or refunds for months unused with an open account; however, the Service Plan will remain active for the length of the paid billing period.
5.4. By subscribing to a Service Plan, Customer gives Codacy full permission to charge the on-file credit card, or other approved methods of payment for fees that the Customer duly authorised. Customer is responsible for providing Codacy with a valid means of payment for paid accounts. User’s free Service Plans are not required to provide payment information.
5.5. Customer is responsible for all fees, including taxes, associated with its use of the Service. By using the Services, the Customer agrees to pay Codacy any applicable taxes with its use of the Services by the Customer.
5.6. In case Customer registers for a paid Service Plan, Customer may change his/her mind for any or no reason within fourteen (14) days starting from the day the Customer signs-up for the Service Plan (the “Trial Period”).
6. CONFIDENTIALITY AND PROPRIETARY RIGHTS
6.1. During the term of this Agreement and for 5 (five) years thereafter (perpetually in the case of software and trade secrets), each party shall treat information of confidential nature including information about a party’s business affairs, products, operation of the Services, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as "confidential” (“Confidential Information”) as confidential and, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
6.2. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of these Terms of Services and the relationship of the parties, but agrees that the specific terms of these Terms of Services will be treated as Confidential Information; provided, however, that each party may disclose the terms of these Terms of Services to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.
6.3. Codacy shall have the right to collect and analyze Customer or User data and Codacy will be free (during and after the term hereof) to, to the extent and manner permitted under applicable law (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Codacy offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
7. INTELLECTUAL PROPERTY
7.1. Customer or User acknowledges and agrees that Codacy owns all Intellectual Property Rights in the Services including all modifications, improvements, upgrades and derivative works. Codacy acknowledges and agrees that Customer owns all Intellectual Property Rights in all materials including the Customer Code that it: (a) provides to Codacy; (b) inputs into the Services; and/or (c) uses as part of the Services (the “Customer Intellectual Property”). Codacy shall not use the Customer Intellectual Property for any purpose other than to provide the Services during the Subscription Term.
Nothing in this Agreement shall operate to transfer any Intellectual Property Rights owned by Codacy and/or the Customer prior to the date of this Agreement.
Customer shall not violate the Intellectual Property Rights of Codacy, nor assist or cause any third party to commit any such violation. Codacy warrants, undertakes and represents that the Services do not (as at commencement of the Subscription Term of this Agreement) and will not, throughout the Subscription Term, infringe and/or violate any third party’s Intellectual Property Rights. Customer’s sole remedy for violation of the Customer’s use of the Services violating any third party’s Intellectual Property Rights is provided in clause 7.2 herein.
7.2. Codacy at its expense and in its sole discretion, will defend, a third party action, suit or proceeding against the Client (“Claim”) to the extent such Claim is based upon an allegation that its use of the Services during the Term infringes a valid U.S. patent or copyright. Codacy will indemnify Customer for any judgments, settlements and reasonable attorney’s fees resulting from a Claim as provided in this clause 7.2. Codacy’s obligations under this clause 7.2 are conditioned on the following: (i) Client promptly notifies Codacy of the Claim in writing upon Customer being made aware of the Claim; (ii) Customer gives Codacy sole authority and control of the defense or settlement of the Claim; and (iii) Customer provides all information and assistance requested by Codacy to handle the defense or settlement of the Claim. The Customer shall give such assistance and information as Codacy may reasonably require in connection with the investigation, defense or settlement of such Infringement Claim.
7.3. If Customer’s use of the Services becomes the subject of a Claim, or if Codacy reasonably believes use of such Services may become the subject of a Claim, Codacy may at its sole option and expense: (a) procure for the Customer the right to continue Use of the Services or the allegedly infringing part thereof; (b) modify the Services or the allegedly infringing part thereof, or replace the Services so the Services or part thereof as so modified, amended or replaced has substantially the same or better capabilities as the original Services or part thereof; or (c) if neither of the foregoing solutions is commercially practicable, Codacy may terminate this Agreement with respect to the allegedly infringing part of the Services and refund a prorated amount of Fees paid by the Client to Codacy for time period for which Customer had access to the Services prior to such termination. Codacy shall have no defense or indemnity obligation for any Claim to the extent the alleged infringement arises as a result of or is based upon Customer’s access and/or use of the Services in a manner not included in the Codacy-provided documentation or instructions, or otherwise authorized by Codacy in writing. THIS CLAUSE 7.3 STATES CODACY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PARTY.
7.4. Codacy’s website may contain links to third party websites, advertisers, or other events or activities that are not owned or controlled by Codacy. Codacy does not endorse or assume any responsibility for any such third party sites, information, materials, products, or services. If User or Customer access any third party website, service, or content from Codacy’s website, User or Customer remain at their own risk and expressly accept that Codacy has no liability arising from your use of or access to any third party website, service, or content.
8. CUSTOMER REFERENCE
8.1. Customer grants Codacy a non-exclusive, worldwide, royalty-free license to use, reproduce, display the Customer logos in electronic form via the Internet and third party networks for marketing and corporate communication. All such uses will be in compliance with Customer's written trademark guidelines as provided by Customer to Codacy, if applicable, upon signature of the agreement.
8.2. Codacy agrees that it will not in any way suggest or imply by the use of the Customer logos that Codacy is affiliated with, endorsed or sponsored by or created in association with Customer except as agreed by Customer. Codacy acknowledges that Customer owns all right, title and interest and to the Customer Logos. Codacy agrees not to do anything inconsistent with such ownership and all uses of the Customer Logos will inure to the benefit of Customer.
8.3. Customer shall provide Codacy with reasonable prior notice of any significant enhancements that generally affect the appearance, updating, delivery or other elements of the Customer logos, and shall make such enhancements available to Codacy upon commercially reasonable terms.
8.4. Codacy agrees to (i) comply with all legal requirements in connection with the use of the Customer logos; (ii) not to sublicense, assign, transfer, pledge, offer as security, or otherwise encumber the Customer logos or any of the rights granted in this agreement in any way other than as expressly provided in the agreement; (iii) not to use any of the Customer logos in any manner or for any purpose in violation of the terms of this agreement; (iv) not to challenge the title or any other rights of Customer or its licensors, (v) not contest the validity of the copyrights or other proprietary interests in and to the Customer logos or (vi) claim any right, title or interest in or to the Customer logos or any parts or derivatives or variations.
10. TERM AND TERMINATION
10.1. The term of this Agreement shall begin on the subscription of any Service Plan and continues until all subscriptions hereunder have expired or have been terminated in accordance with this Agreement. The term of each Service Plan shall be specified by the Customer upon subscription. Subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term.
10.2. Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach or if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Either party may terminate this Agreement with immediate effect by providing written notice to the other party, if the other party breaches any laws relating to privacy and data security.
10.3. Codacy reserves the right to suspend delivery of the Services if Customer fails to timely pay any undisputed amounts due to Codacy under this Agreement, but only after Codacy notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the Services shall not release Customer of its payment obligations under this Agreement. Customer agrees that Codacy shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the Services resulting from Customer’s non-payment.
10.4. Codacy may terminate the Agreement or suspend User and Customer’s access to the Service at any time, including in the event of User or Customer’s actual or suspected unauthorised use of the Service and/or Software, non-compliance with the Agreement, or if Codacy withdraw Services (in which case Codacy shall provide User and Customer’s reasonable notice in advance of doing so).
10.5. In case of Agreement termination, User or Customer agrees that Codacy shall have no liability or responsibility to User or Customer, and Codacy will not refund any amounts that Customer has already paid, to the fullest extent permitted under applicable law.
10.6. Upon termination of this Agreement, Codacy shall immediately cease providing the Services and all usage rights granted under this Agreement shall terminate.
10.7. If Codacy terminates this Agreement due to a breach by Customer, the Customer shall immediately pay to Codacy all amounts then due under this Agreement and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to a breach by Codacy, then Codacy shall immediately repay to Customer all pre-paid amounts for any unperformed Services scheduled to be delivered after the termination date.
10.8. Upon termination of this Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
11. WARRANTY AND DISCLAIMER
Codacy shall use reasonable efforts in accordance with best and prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform Other Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance or updates required to reflect changes in relevant laws and regulatory requirements, either by Codacy or by third-party providers, or because of other causes beyond Codacy’s reasonable control, but Codacy shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND CODACY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE REGARDING OR RELATING TO THE SERVICES, OR ANY MATERIALS OR SOFTWARE FURNISHED OR PROVIDED TO THE CUSTOMER UNDER THIS AGREEMENT. CODACY DOES NOT WARRANT THAT THE CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE, OR THAT THE SERVICES WILL SUFFICIENTLY MEET THE CUSTOMER’S REQUIREMENTS. FURTHER, CODACY IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM THE MODIFICATION, MISUSE OR DAMAGE OF THE SERVICES BY PARTIES OTHER THAN THE CUSTOMER. CODACY DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO NON- CODACY PRODUCTS AND SHALL HAVE NO LIABILITY UNDER ANY WARRANTY IF THE CUSTOMER’S USE OF THE SERVICES IS NOT IN ACCORDANCE WITH THE TERMS AND CONDITIONS IN THIS AGREEMENT.
Codacy warrants, undertakes and represents that it has all rights, title and authority to enter into this Agreement and provide the Services to Customer.
Each party to this Agreement represents, warrants and undertakes to the other that it fully complies with and shall continue to comply with all applicable laws and regulations.
12. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT SOFTWARE OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE LIMITATIONS SET OUT IN THIS CLAUSE SHALL NOT APPLY TO PERSONAL INJURY, INCLUDING DEATH, CAUSED BY EACH PARTY’S NEGLIGENCE. IN NO EVENT WILL EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED IN AGGREGATE THE FEES PAID BY CUSTOMER DURING THE SUBSCRIPTION TERM OF THIS AGREEMENT.
The Customer shall indemnify, defend and hold Codacy and its directors, officers, employees, agents, successors and permitted assigns (“Codacy Indemnitees”), harmless, at the Customer’s own expense, from any and all losses, damages, liabilities, costs (including attorneys’ fee) (collectively, “Losses”) asserted or claimed against Codacy Indemnitees by any third-party that arises out of the Customer’s use of the Services in a manner that violates the terms of this Agreement. Codacy shall notify the Customer promptly in writing of any such claims and agrees to cooperate with the Customer in the defense and settlement of any such claims as reasonably requested by the Customer at the Customer’s expense. Codacy’s failure to provide written notice to the Customer shall not affect the Customer’s indemnification obligations hereunder except to the extent that the Customer is materially prejudiced thereby. Notwithstanding anything to the contrary in this Section 12, Codacy may select its own legal counsel to represent its interests, and the Customer shall: (a) reimburse Codacy Indemnitees for its costs and attorneys’ fees immediately upon request as they are incurred; and (b) remain responsible to Codacy Indemnitees for any Losses indemnified under this Section 12.
14. EQUITABLE RELIEF
A breach of any provision of this Agreement may cause Codacy irreparable injury and damage and therefore the Customer may be enjoined through injunctive proceedings, in addition to any other rights or remedies which may be available to Codacy, at law or in equity.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Codacy’s prior written consent. Codacy may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User or Customer does not have any authority of any kind to bind Codacy in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or that would require or permit the application of the laws of any jurisdiction other than those of the State of New York and each party agrees to submit to the exclusive jurisdiction and venue in the applicable federal courts of the United States or the courts of the State of New York in each case located in the City of New York and the County of New York.