This Software as a Service Agreement (in the following “Agreement”) is made and entered into by and between Marcin Kozlowski (later referred as "MK") and Customer.
MK has developed certain software applications (SaaS) which it makes available to Customers via the internet on a free and/or pay-per-use basis for the purpose of helping Customers to automate their code quality management.
Customer wishes to access and use the SaaS in its business operations;
MK has agreed to provide services as set out below and the Customer has agreed to accept and pay, when not free, for MK's services subject to the terms and conditions of this agreement.
Now, therefore, in consideration of the background set forth above and the mutual covenants contained herein, the parties hereby agree as follows:
- “Software as a Service (SaaS)” means the MK Software defined as follows:
Betterscan.io is an online platform to process, analyze, manage and improve source code that is owned, operated and maintained by MK, and that will be made available to the Customer’s Authorized Users as a Service via the internet and accessed at a unique URL to be provided to Customer and which includes MK’s website (https://www.betterscan.io/ or any successor website), blog, documentation, API and any other software, sites, and services offered by MK in connection to any of those.
- “Authorized Users” means those employees, agents, independent contractors, consultants or other individuals who are authorized by the Customer to use the SaaS and for whom rights to use the SaaS have been purchased and User Accounts have been supplied.
- “Change of Control” means the direct or indirect acquisition of either the majority of voting stock of a party or all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or the merger of such party with another entity, in which such party is not the surviving entity.
- “Code Snippet” means small regions / parts of Customer’s Source Code.
- “Code Pattern” means an abstract representation of a Code Snippet including additional metadata (e.g. pattern name, description etc.) which is created by MK or Customer.
- “Customer” means anyone who accepted this agreement.
- “Paying Customer” will only be business Customers and means the business with whom MK contracts.
- “Customer Data” means the Customer’s data stored, processed, transmitted, collected, or generated by Customer and/or its Authorized Users in connection with the use of the SaaS.
- “Customer Source Code” means any source code the Customer submits to MK for the purpose of using the SaaS.
- “Fees” means the subscription fees payable by the Customer.
- “Public Repositories” means source code repositories that are publicly available (no matter which license they adhere to) or that have been flagged by Customer as public and that can be accessed without access restrictions (e.g. passwords, SSH keys)
- “Private Repositories” means source code repositories that are access restricted (e.g. via password or SSH keys) or that have been flagged by Customer as private.
- “Repository Hosting Service” means an online platform where Customer’s Source Code is stored in a version control system like Git, SVN or Mercurial.
- “Start Date” means the date when the Customer signed up for the SaaS.
- “Support” means the provision of web-based technical assistance by MK to the Customer with respect to installation, errors and technical product problems.
- "Taxes" means any duties, customs fees, or taxes (other than MK’s income tax) associated with the sale of the Service, including any related penalties or interest.
- “Term” and “Term of Service” means the term of this Agreement.
- “User Account” means the account established with MK in order to access the SaaS.
- “User Generated Content” means any suggestions, comments, posts, articles, enhancement requests, recommendations or other feedback provided by Customer or its Authorized Users, relating to the operation of the SaaS.
Grant of Rights
- Subject to the fulfillment of the obligations arising out of this Agreement by Customer MK grants to Customer’s Authorized Users a limited, non-exclusive, non-transferable (except to a successor in interest in the event of Customer’s Change of Control), non-sublicensable right to use the SaaS via the internet during the Term.
- Customer shall only allow access to or use of the SaaS to Authorized Users.
Customer is not granted any additional right to the SaaS or any other intellectual property of MK. Customer shall not be entitled to make copies of the software and Customer shall not translate the program code into other forms of code (decompilation) or employ other methods aimed at revealing the software’s code in the various stages of its development (reverse engineering). Customer is not entitled to remove or make alterations to copyright notices, serial numbers or other features which serve to identify the software.
- User Generated Content and Code Patterns.
Customer grants MK a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to reproduce, modify, adapt and publish, to use or incorporate into the SaaS or any on-premise model of the software or any future enhancements or future (technical) forms of the SaaS (particularly but not exclusively Plugins, Toolbars, APIs, databases, local cloud distributions, mobile applications (e.g., Apps or any other forms of mobile software), databases, standard software, (online) training material, custom software, videos, print media, digital media (particularly but not exclusively blogs, social media channels, websites, tweets, short messages, news articles) and documentations) any User Generated Content even if such User Generated Content has been contributed and subsequently removed by Customer.
By submitting Code Patterns which have been created or edited by Customer and which have been explicitly approved by Customer to be public to MK, Customer grants MK and its users a royalty-free, worldwide, transferable, sublicensable irrevocable, perpetual and non-exclusive license to reproduce, modify, adapt and publish the Code Patterns solely for the purpose of using the Code Patterns for the SaaS or any on premise model of the software or any future enhancements or future (technical) forms of the SaaS (particularly but not exclusively Plugins, Toolbars, APIs, databases, local cloud distributions, mobile applications (e.g., Apps or any other forms of mobile software), databases, standard software, (online) training material, custom software, videos, print media, digital media (particularly but not exclusively blogs, social media channels, websites, tweets, short messages, news articles) and documentations) even if such Code Patterns have been contributed and subsequently removed by Customer.
- New Versions / Changes.
Customer acknowledges and agrees that the SaaS may change from time to time without prior notice. Changes include, without limitation, security patches, added or removed functionality, and other enhancements or restrictions. For Paying Customers MK will not limit the essential functions of the SaaS. MK reserves the right to enforce quotas and usage limits (to any resources, including the API) or to disable Customer’s account at its sole discretion, with or without notice, which may result in MK disabling or throttling Customer’s usage of the Service for any amount of time if bandwidth, storage, API request or other resources significantly exceed the average usage (as determined solely by MK) of other MK Customers.
MK has the right to, in MK’s sole discretion (i) refuse or remove any content that, in MK’s reasonable opinion, violates any MK policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the website to any Authorized User violating any MK policy or third Party rights, in MK’s sole discretion. Adjustments, changes and updates of the SaaS that help to avoid or maintain dysfunctions may lead to temporary service suspensions. MK will try to limit downtime of the service or restrictions of accessibility to 10 hours a month. MK will try to do regular maintenance works during the weekend or at times between 10 p.m. and 6 a.m. (CET). Customer is aware that the SaaS relies on a working internet infrastructure. Additional downtime of the SaaS may occur, if the website is not available in whole or in part, e.g. because of interrupted broadband connection. Customer is aware that the SaaS may not work if Customer’s Repository Hosting Service is not properly available (be it to MK or the Customer).
Any complaints concerning the use of the MK Services shall be notified by e-mail to email@example.com Support is only available in English.
- MK claims no rights over any Customer Source Code. Customer retains copyright and any other rights Customer already holds in the Customer Source Code.
- MK claims rights over Customer’s Code Patterns as specified in section 2.5.
- Customer understands that SaaS will display Customer’s Source Code and corresponding analyses in Public Repositories to the public.
- Customer understands that SaaS will display Private Repositories and corresponding analyses to Customer and its Authorized Users.
- Customer understands that MK may publish Customer’s public Repository Hosting Service data full or in part on MK’s website. This includes any Customer Data displayed on Customer’s Repository Hosting Service which can be accessed e.g., via GitHub API.
- Customer understands that MK uses third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the SaaS.
Promotions and Marketing
- Customer may use the MK brand and logo for promotion and marketing purposes with MK’s prior written consent.
Fees, Expenses, and Taxes
- Trial Period.
Customer can test the SaaS paid accounts free of charge for a 14-day period beginning with the Start Date. At the end of the trial period, the paid SaaS will not be extended automatically, but will initially be downgraded to the free version, unless a subscription is purchased. Customer is made aware of this fact in good time. This means that costs will only be incurred if the Customer additionally books Fee-based product subscriptions. Only then will the Customer have to enter its payment information into the Service.
- Invoices; Payment; Late Payment.
Customer agrees to pay all prices for the SaaS subscriptions which are displayed on the MK website and confirmed by Customer. The subscription prices which can be accessed here shall apply in the version valid at the time of the conclusion of the subscription. Prices are plus statutory value added tax. Invoices will be issued by e-mail and in Euro. Payment must be made at the beginning of the subscription period, using the payment methods provided by MK and selected by Customer in its Account. If the due date for the payment is a fixed calendar date, the Customer shall be in default of payment once this date has expired. Otherwise, the Customer shall be in default after a warning letter has been sent, or, at the latest, if the Customer fails to pay an invoice within 10 days from the due date and receipt of such invoice. In the event of default, the Customer shall pay to MK default interest amounting to 9 percentage points above the applicable base rate. Should Customer fail to fulfil its payment obligations, MK reserves the right to temporarily, up until full payment has been effected, or permanently block the Customer's access to the Service. The Customer's obligation to pay default interest shall not preclude the assertion by MK of default damage going beyond this.
- Pricing and changes
MK shall have the right to adjust the prices for SaaS subscriptions and subscriptions at any time, after a corresponding notification in accordance with legal requirements. Price changes and the introduction of new product subscriptions and/or subscriptions during a subscription term shall apply to subsequent terms and for all new members after the day on which such changes take effect. Unless Customer terminates this Agreement, subscription will automatically renew and Customer authorizes MK to collect then-applicable Fees (as well as any taxes) using any credit card or other payment mechanism Customer has selected in his account.
Customer is responsible for any Taxes, and Customer will pay MK for the Service without any reduction for Taxes. If MK is obligated to collect or pay Taxes, the Taxes will be invoiced to MK, unless Customer provides MK with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to MK, Customer must provide MK with an official tax receipt or other appropriate documentation to support such payments.
- Customer must be human. Accounts registered by “bots” or other automated methods are not permitted.
- Customer login may only be used by one person. Single logins shared by multiple people are not permitted. Customer may create separate logins for as many people as Customer’s plan allows. One person or legal entity may not maintain more than one free account.
- Customer shall use the SaaS exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, and without limitation, Customer will not use the SaaS to knowingly infringe the intellectual property rights of others.
- Customer agrees to comply with all applicable laws and regulations relating to data protection and privacy of personal information, including any and all privacy notification statutes and requirements currently in effect and that may come into effect during the Term.
- Customer is responsible for the security of Customer’s passwords and SSH keys and for any use of Customer’s account.
- Customer agrees to assume full responsibility for configuring the SaaS to allow appropriate access to any Customer Source Code provided to the SaaS.
- Customer retains sole responsibility for any Authorized User that Customer allows to view Customer Source Code in Private Repositories and entrusts them at his own risk.
- MK is not responsible if Customer fails to configure, or misconfigures, the SaaS and inadvertently allows unauthorized parties to access any Customer Source Code in Private Repositories.
- Customer agrees to not engage in any activity that interferes with or disrupts the SaaS such as but not limited to: (i) copying, distributing, or disclosing any part of the SaaS in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the SaaS in a manner that sends more request messages to the MK servers than a human being can reasonably produce in the same period of time by using a conventional online web browser.
- Customer is responsible to inform MK immediately about any possibility of unauthorized access to the SaaS, particularly but not exclusively because of loss of password, stolen password, loss of SSH keys, stolen SSH keys or other breach of security.
- Customer shall promptly notify MK of any known violation of the terms and conditions of this Agreement and shall cooperate with MK with respect to: (a) investigation by MK of any suspected or alleged violation of this Agreement; and (b) any action by MK to enforce the terms and conditions of this Agreement.
- During the registration and use of the SaaS it is required to have a browser which accepts cookie files and local storage. Customer ensures that technical requirements of usage of MK online software are met.
Warranty, Limitation and Exclusions of Liability
- MK represents and warrants that it will provide the SaaS in a professional manner consistent with good industry practices.
- Defects in the supplied Software shall be remediated within a reasonable time following a detailed notification of such defect being given to MK by the Customer. For the purpose of remediating defects, MK may choose to replace the defective Software with a version of the Software which is free of defects.
- Unless otherwise specified at the end of section 8.4 the Customer’s claims for damages are excluded. Particularly but not exclusively MK shall not be liable for any claims, losses, or damages (a) caused by actions taken by MK at Customer’s direction; and (b) arising out of or in connection with Customer’s or any Authorized User’s use of the SaaS in violation of the terms of this Agreement and (c) arising out of Customer’s non-compliance with the technical requirements defined in section 8 (d) arising out of unauthorized access to the SaaS (particularly but not exclusively hacking or theft of data).
- Except as expressly provided in section 8.1, the SaaS is provided "as is", without warranties of any kind whatsoever, express or implied, in contract, in tort or otherwise, including but not limited to the warranties of merchantability, fitness for a particular purpose and accuracy of any information provided. In no event shall either party be liable for any incidental or consequential damages, including loss of income, data, profits, revenue or business interruption, or cost of substitute services, or other economic loss, whether or not such party has been advised of the possibility of such damages, and whether any claim for recovery is based on theories of contract, warranty, tort or otherwise. The limitation and exclusion of warranty and liability set forth in this section shall not apply in cases of death, personal injury, fraud or willful misconduct, where liability is legally mandated, such as under the Product Liability Act, in cases of malicious intent, gross negligence, where assurance of freedom from defect was given or in case of failure to fulfil essential contractual duties.
- Customer shall defend, indemnify and hold harmless MK, against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims made or brought against MK by a third party to the extent that Customer Data, or Customer's use of the SaaS is in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party.
Term and Termination
- The Agreement runs for an indefinite time and will remain in effect until terminated by one of the Parties in accordance with this section. The Parties may terminate this Agreement or any subscription feature for any or no reason at their convenience to the end of the subscription period.
- Termination may be issued in writing (e-mail is sufficient) or by using the provided account closing mechanism, if provided by MK.
- If Customer does not cancel before the end of the booking period, the Service will be extended for one more period.
- In addition each Party’s right to terminate this Agreement for good cause remains unaffected. Good cause for termination of the Agreement by MK shall include, but is not limited to, the following:
- a use of bandwidth, storage, API requests or other resources that significantly exceeds the average usage of other MK Customers;
- a serious breach of the obligations arising from this Agreement by the Customer;
- a default in payment of the Customer with an amount that equals at least the compensation of one month (including, but not limited to, the failure to settle outstanding invoices);
- a serious breach of contract leading to the loss of mutual trust or renders the continuation of this Agreement in consideration of the purpose of the Agreement unreasonable;
- an attempt of a denial of service attack on the SaaS by the Customer or any attempt to hack or break any security mechanism on the SaaS;
- determination that the Customer’s use of the SaaS poses a security or service risk to MK, or to any user of services offered by MK;
- a major change in the working of the provider of your git-server (e.g., GitHub, BitBucket, etc.) that makes it unreasonable for MK to adapt the SaaS accordingly;
- a major change in the co-operation of the provider of your online git-server (e.g., Github, BitBucket, etc.) and MK that makes the further offering of the SaaS unreasonable for MK;
- an application for the initiation of insolvency proceedings concerning the Customer, as well as the refusal to open insolvency proceedings for lack of assets, or the issue of a declaration in lieu of an oath, or any similar proceedings.
- Upon any termination for cause by Customer, MK shall refund to Customer, within thirty (30) days, any prepaid Fees. In no event shall any termination relieve the Customer of the obligation to pay any Fees payable to MK for the period prior to the effective date of termination. Upon any termination for cause by MK, Customer shall pay any unpaid Fees and Fees which would have been payable for the whole subscription period.
- In case of termination of the Agreement, Customer’s Source Code and private Code Patterns including related meta-data and logs will be deleted. Backups thereof will be deleted within 10 business days. Customer Data required for tax or legal reasons, server logs and code statistics (e.g., number of code errors, lines of code, etc.) as well as Code Patterns made public by Customer might not be deleted.
- The rights and obligations of MK and Customer contained in Sections 2.4 (User Generated Content and Code Patterns), 4 (Ownership), 6 (Fees, Expenses and Taxes), 8 (Warranty, Limitation and Exclusions of Liability), 10.5 (Refund of Payment upon Termination), 11 (Survival) and 12 (General) shall survive any expiration or termination of this Agreement.
- This Agreement, and all rights and obligations of the Parties arising from or otherwise relating to this Agreement, shall be governed by, construed in accordance with, and enforced under the laws of the Federal Republic of Germany, without reference to principles of conflict of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
- Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation strikes, riots, fires, flood, storm, explosions, acts of God, war (whether declared or not), acts of piracy, acts of sabotage, terrorism, governmental action, labor conditions not in the control of the applicable party, cyclones, tidal waves, destruction by lightning and earthquakes (each a “Force Majeure Event”)
- Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent (which shall not be unreasonably withheld), except in the event of a Change of Control. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
- This Agreement is drafted in the English language. If this Agreement is translated into any other language, the English language text shall prevail where there are conflicts.