This Bitontop SaaS Agreement (“Agreement”) is made and entered into as of the date of first use, or date of first payment (the “Effective Date”), by and between Rewardli, Inc., doing business as Bitontop (Bitontop or “Party”) a Delaware corporation, with its principal place of business at 400 Second Street, Suite 400, San Francisco, CA 94107, and the SaaS customer (“Customer” or “Client” or “Subscriber” or “Party”).
The Parties hereto agree as follows:
1. Contract Period
The term of this Agreement will commence on the Effective Date and continue until either Party terminates the Agreement in accordance with Section 11 below (the “Term”).
2. Service and payment
Bitontop agrees to provide Customer the services listed in Schedule A (the “Services”). Payments outlined in Schedule B are due in advance monthly. Customer must have a credit card on file to cover payments. Service will not start until the payment is received. Services will be terminated if payments are not received within the terms.
3. Representations and Warranties
General. Each Party represents and warrants that it has the right and authority to enter into this Agreement, and that by entering into this Agreement, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.
Compliance with the Laws. Each Party represents and warrants that no consent, approval or authorization of or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of this Agreement. Each Party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and this Agreement, including copyright, privacy and communications decency laws.
Acceptable Use. Customer is solely responsible for the content of any postings, data, or transmissions on or through any website that incorporates the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. Customer represents and warrants that it will: not use the Services in a manner that: (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (ii) will disrupt a third parties’ similar use or Licensed Materials; not violate or tamper with the security of any Bitontop computer equipment or program.
If Bitontop has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purpose Bitontop may suspend the Services immediately with or without notice to Customer.
Bitontop may terminate the Agreement as contemplated in Section 11 if Customer in fact fails to adhere to the foregoing acceptable use standards.
DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY WARRANTIES MADE BY EITHER PARTY. NEITHER PARTY MAKES ANY OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITH RESPECT TO THE SERVICES, ANY RELATED SERVICE OR SOFTWARE. BITONTOP HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN BY BITONTOP, ITS EMPLOYEES, LICENSORS, OR THE LIKE WILL CREATE A WARRANTY.
4. Limitation of Liability
UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING, PROVIDING OR USING THE SERVICES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BITONTOP’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY EITHER PARTY OF THIS AGREEMENT, SUCH PARTY’S LIABILITY TO THE OTHER WILL NOT EXCEED THE AMOUNT PAID OR OWED TO BITONTOP BY CUSTOMER DURING THE PREVIOUS THREE MONTHS.
5. Confidential Information
Definition. For purposes of this Agreement “Confidential Information” shall mean information including, without limitation, all Customer data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include third party software, if any, that may be provided to Customer under this Agreement, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor.
Confidential Information excludes information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is independently developed by the receiving Party without the use of any Confidential Information or the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; and (v) the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing Party (at the disclosing Party’s expense) in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
Nondisclosure: During this the term of this Agreement and for a period of 2 years thereafter, each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under this Agreement; Each Party agrees to only disclose the other Party’s Confidential Information to its employees: (a) with a need to know to further permitted uses of such information; and (b) who are informed of the nondisclosure/ non-use obligations imposed by this Section 5. Both parties shall take steps each determines appropriate to implement and enforce such non-disclosure/non-use obligations.
Terms of Agreement Confidential. Each of the Parties agrees not to disclose to any third party the terms of this Agreement, including pricing, without the prior written consent of the other Party hereto, except to advisors, investors, prospective investors and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law.
Injunctive Relief. In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching Party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
6. Customer Responsibility
Customer is solely responsible for the content of communications created and transmitted by Customer to its end users, and shall defend, indemnify and hold harmless Bitontop from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such communications.
Customer is not permitted to resell the Services.
Customer shall use the Services only for lawful purposes. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized users and shall maintain a procedure external to the Services for reconstruction of lost or altered files, data or programs. Customer is responsible for establishing designated points of contact to interface with Bitontop.
Bitontop hereby grants to customer nonexclusive, worldwide, royalty free nontransferable license during the Term of this Agreement to use, in object code form, all software and related documentation provided by Bitontop (“Licensed Material”), which may be furnished to Customer under this Agreement.
Customer agrees to use commercially reasonable efforts to ensure that its employees and users of all Licensed Material hereunder comply with the terms and conditions set out in this Agreement.
Customer also agrees to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Licensed Material. All Licensed Material furnished to Customer under this Agreement shall be used by Customer only for Customer’s internal business purposes, shall not be reproduced or copied in whole or in part, and shall not be removed from the United States.
8. Customer Data
All data obtained or collected by Bitontop or otherwise supplied by Customer or any end user using the Services in connection with this Agreement is and will be owned by Customer and is to be strictly held by Bitontop as confidential (the “Customer Data”). Bitontop shall not use any Customer Data for any purpose other than to permit Customer’s end users to redeem offers Customer elects to make available to its end users through the Services or to otherwise fulfill Bitontop’s obligations hereunder. Bitontop will delete and destroy all copies of Customer Data once the Agreement is terminated with or without default. Customer has the option to receive a backup of Customer Data prior to deletion per section 10.
All right, title and interest in and to the Licensed Material, and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating thereto, belong exclusively to Bitontop. Any modification to the Software performed by Customer directly or indirectly extending the current capabilities shall be the property of Bitontop and all copyrights and other rights are hereby assigned to Bitontop.
9. Customer support
Bitontop will respond to support requests via email within one business day. Bitontop shall make a telephone number available in case of emergency or unplanned service disruption.
10. Back-up of Customer Data
Bitontop will deliver a full backup of Customer Data in .csv format via email or other electronic means, if customer agrees to pay a charge of $250 per backup copy.
Either party may terminate this agreement upon thirty (30) days written notice, which termination will be effective at the expiration of such thirty (30) day period (or any longer period specified in the notice) without need for an additional notice.
If a Party fails to perform or observe any material term or condition of this Agreement (including Client’s payment obligations) and the failure continues unremedied for seven (7) days after receipt of written notice, the other Party may terminate this agreement immediately by a second written notice.
Notwithstanding the foregoing, this Agreement may be terminated immediately upon written notice by either Party if the other Party becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors.
In the event of any termination of this Agreement, Customer shall be responsible for payment of all unpaid charges accrued and validly owed to Bitontop prior to the effective date of such termination.
12. General Provisions & Force Majeure
This Agreement, including any amendments and attachments hereto that are incorporated herein, constitute the entire agreement between the parties and shall be binding on the Parties when executed by both Parties. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). No provision of any purchase order or other document issued by either Party, which purports to alter, vary, modify or add to the provisions of this Agreement, shall be binding upon either Party or effective for any purpose, unless accepted by both Parties in a writing signed by authorized representatives thereof. It is further expressly understood and agreed that, there being no expectations to the contrary between the Parties, no usage of trade or other regular practice or method of dealing either within the computer software industry, Bitontop’s industry or between the Parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any part thereof.
Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.
The Licensed Materials shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction.
This Agreement may not be assigned, sublicensed or transferred, in whole or in part, by Customer without the prior written consent of Bitontop. Any attempted assignment, subletting or transfer shall be void.
(e) If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
No delay or failure of Bitontop or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by Bitontop or Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach.
In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”) the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice immediately terminate this Agreement.
On Bitontop’s request, no more frequently than annually, Customer shall furnish Bitontop with a signed certification (i) verifying that the Licensed Material is being used pursuant to the terms of this Agreement and (ii) listing the locations where the Licensed Material is being used.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute a single instrument.
This Agreement shall be governed by and construed under the laws of the State of California applicable to contracts made in and wholly to be performed in the State of California without regard to conflicts of law.
Use of the service is your consent to the terms and conditions of this agreement.
SCHEDULE A: SERVICES TO BE PROVIDED
Bitontop will provide Customer with the ability to provide offers, perks, deals and discounts (collectively, “Perks”) from the Bitontop network to Customer’s end users as more fully described at the following URL (or any successor or alternative URL used by Bitontop for the same purpose): https://bitontop.com
This Service includes the ability for Customer to:
- Select perks from Bitontop’s network partners to be made available to its users
- Allow its users to view and redeem perks
- Allow its users to request and vote on potential perks
- Allows its users to create their own perks for distribution within their company or within the broader customer network
Bitontop shall make a reasonable effort to attempt to contact national vendors to negotiate discounts where warranted by the number of requests. Bitontop makes no guarantee regarding the participation or lack thereof of new or existing perks on its network.
SCHEDULE B: COST OF SERVICES
The cost of services will be that which has been communicated to the customer via email or on a signup page given to customer.