Terms of Service
THESE TERMS OF SERVICE (“TOS”) GOVERN (I) YOUR USE OF THE BITWAVE WEBSITE LOCATED AT http://www.bitwave.io (THE “SITE”), AND (II) YOUR USE OF THE BITWAVE PLATFORM AND OTHER RELATED SERVICES PROVIDED BY BITALPHA, INC. DBA BITWAVE (“BITWAVE”) (COLLECTIVELY THE BITWAVE PLATFORM AND SERVICES ARE REFERRED TO HEREIN AS “SOLUTIONS”). MORE SPECIFICALLY, THIS TOS GOVERNS SOLUTIONS PROVIDED TO (I) YOU AS A CUSTOMER LEGAL ENTITY (“CUSTOMER”) THAT HAS ENTERED INTO AN ORDER IN WRITING WITH BITWAVE INCORPORATING THIS TOS BY REFERENCE (EACH AN “ORDER”), AND (II) YOU AS AN END CLIENT (“END CLIENT”) RECEIVING MANAGED SERVICE PROVIDED BY A BITWAVE CUSTOMER. THE ORDER AND TOS ARE REFERRED TO HEREIN COLLECTIVELY AS THE “AGREEMENT.” BY ENTERING INTO AN ORDER REFERENCING THIS TOS OR BY ACCESSING OR USING THE SOLUTIONS AND/OR SITE, YOU AND BITWAVE MUTUALLY AGREE TO BE BOUND BY THIS TOS. AS USED HEREIN, THE TERM “YOU” OR “YOUR” REFERS INDIVIDUALLY AND COLLECTIVELY AS APPLICABLE TO (I) THE INDIVIDUAL USER OF THE SITE AND/OR (II) THE CUSTOMER OR END CLIENT ACCESSING THE SOLUTIONS. IF YOU ARE ENTERING INTO THIS TOS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS TOS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS TOS, YOU MAY NOT USE THE SOLUTIONS OR SITE. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER. WITH RESPECT TO EACH CUSTOMER, THE LICENSED ENTITY AUTHORIZED TO USE THE SOLUTIONS SHALL BE SPECIFIED IN THE ORDER. BITWAVE MAY CHANGE THIS TOS FROM TIME TO TIME BY PROVIDING TEN (10) DAYS PRIOR NOTICE, EITHER BY EMAILING SUCH NOTICE TO THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT IF YOU HAVE AN ACCOUNT AND/OR TO YOUR USERS, OR IF YOU DO NOT HAVE AN ACCOUNT, BY POSTING A NOTICE ON THE SITE. THE MOST CURRENT VERSION OF THIS TOS IS AVAILABLE AT [https://www.bitwave.io/terms-of-service]. THE REVISED TOS WILL BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH NOTICE IS PROVIDED, AND USE OF THE SOLUTIONS AFTER THAT DATE, CONSTITUTES ACCEPTANCE OF THE REVISED TOS. IF ANY CHANGE TO THIS TOS IS NOT ACCEPTABLE TO YOU, (I) WITH REGARD TO CUSTOMERS ONLY, IF YOU NOTIFY BITWAVE PROMPTLY IN WRITING OF YOUR OBJECTION TO THE NEW TOS AND BITWAVE DOES NOT AGREE TO EXCLUDE THE OBJECTIONABLE MODIFIED TERMS, THEN THE PRIOR TOS WILL APPLY THROUGH THE END OF YOUR THEN CURRENT ORDER TERM AND THE UPDATED TOS WILL TAKE EFFECT COMMENCING ON THE NEXT RENEWAL DATE, UNLESS YOU TERMINATE YOUR ORDER PRIOR TO SUCH RENEWAL IN ACCORDANCE WITH THE TERMS OF YOUR AGREEMENT, AND (II) WITH RESPECT TO INDIVIDUAL SITE USERS
Definitions: Definitions are set forth at the end of this TOS.
Exhibits: The Digital Millennium Copyright Act Notice (DMCA NOTICE) is attached to this TOS as Exhibit 1 and is incorporated herein by reference
1.1 Bitwave Site -- License Rights. Bitwave hereby grants You a non-exclusive, non-transferable, non-sublicensable right and license to use the Site subject to the terms of this TOS.
1.2 Bitwave Platform – Customer License Rights. Bitwave hereby grants each Customer, during the Order Term, a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Bitwave Platform, as made available in object code form; in each case subject to and in accordance with the terms of the Order, this TOS and the Documentation. Customer shall use the Documentation solely for their internal use in connection with their use of the Bitwave Platform.
1.3 Bitwave Platform -- Licensed Entities and End Clients Access Rights. The Bitwave Platform shall be used solely by Customer provided that Customer may extend use rights to its Licensed Entities (which may include its Affiliates) to the extent authorized in the Order. If the description of the Licensed Entities in an Order expressly permits use by the Licensed Entities for the benefit of End Clients, then in such case and only in such case, the license grant includes the right of Customer (and/or its Affiliates as Licensed Entities) to use the Bitwave Platform to provide managed services to their End Clients. In such case, unless otherwise expressly stated in the Order, Customer and/or its Affiliate are required to manage the use of the Bitwave Platform for their End Clients and Customer may grant the End Clients access rights (limited to read-only access unless otherwise agreed to in writing by Bitwave) for the purpose of reviewing reporting. Customer is responsible for the acts and omissions of the Licensed Entities and their Authorized Users (including as applicable, their End Clients) and for their respective Representatives compliance with the terms of this Agreement to the same extent as it is responsible for its own acts and omissions hereunder. To the extent End Client use is expressly authorized in an Order, (i) the End Client use is governed by this TOS as made available on the Bitwave Site and the End Client must electronically accept the terms of this TOS; and (ii) Customer shall ensure that the End Client access and use rights are limited to read-only access unless otherwise authorized by Bitwave in writing to Customer; and (iii) Bitwave hereby grants End Client a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Bitwave Platform, as made available in object code form; subject to the terms of this TOS, the Documentation and the use limitations agreed to by Customer and Bitwave in the Agreement.
1.4 License Restrictions and Reservation of Rights. Except as expressly authorized in Section 1.3 hereof, You and Your Representatives shall not (i) sublicense, resell, transfer, loan or make available the Site or Bitwave Platform to any third parties or use the Site or Bitwave Platform on behalf of, or for the benefit of any third party; (ii) frame, scrape, modify, create derivative works of, reverse engineer, decompile or attempt to expose or recreate the source code of the Site or Bitwave Platform; (iii) violate Bitwave’s Intellectual Property Rights in the Site or Solutions; (iv) publish or disclose to any third party any benchmarking or comparative analysis of the Bitwave Platform; or (v) remove, obliterate, obscure, or conceal the proprietary notices or legends which appear on the Bitwave Property. Customer, the Licensed Entities and their Representatives have no right to obtain or have access to the source code or systems and programming documentation of the Site or Bitwave Platform or any part thereof. Any rights not expressly granted in this Section are reserved by Bitwave. Without limiting the foregoing, Bitwave reserves the right to license the Bitwave Platform and Site to others on such terms as Bitwave may establish in its sole discretion. You acknowledge that no exclusive right of any kind is granted to You by the terms of this TOS.
1.5 Your Obligations. You (and in the case of Customer on behalf of itself and its End Clients’ and their respective Representatives) will use the Site and Bitwave Platform solely for lawful purposes and will comply with any codes of conduct, policies or other notices Bitwave provides or publishes in connection with the Site or Bitwave Platform. You are responsible for (i) exercising the lowest level of read, write or other type of access that is strictly necessary for Your applications to interact with the Bitwave Platform for Your authorized use thereof; (ii) providing the computer and internet systems necessary to connect to and access the Bitwave Platform; (iii) ensuring that such systems conform to all configuration and specifications set forth in Bitwave’s published Documentation then in effect; (iv) obtaining Your own licenses to any third party software used on Your Systems or other third party systems used in combination with the Bitwave Platform; and (v) securing and backing up any data stored on Your Systems. Bitwave will not be liable for any loss or damage arising from Customer’s failure to comply with its obligations under this Section.
1.6 Additional Use Restrictions. You (and in the case of Customer on behalf of itself and its End Clients’ and their respective Representatives) will not (i) interfere with or disrupt the Site or Bitwave Platform or servers or networks connected thereto the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site or Bitwave Platform; (ii) impersonate any person or entity, or falsely state or otherwise misrepresent its affiliation with a person or entity; (iii) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; (iv) obtain or attempt to access or otherwise obtain any data, content or information through any means not intentionally made available or provided for through the Site or Bitwave Platform; and/or (v) circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any data, content or information available on or through the Site or Bitwave Platform, including through the use of virtual private networks.
1.7 Authorized Users. As part of the registration process, Customer is responsible for establishing an administrative user name and password for Customer’s account which may be used to create individual Authorized User accounts. Each Authorized User must use a unique login and password combination, which may not be shared with any other individual, and the rights of an Authorized User may not be transferred to another individual without Bitwave’s prior written consent. Customer is responsible for ensuring that each Authorized User maintains the confidentiality of the password and other account information that the Authorized User uses to access Bitwave’s Confidential Information. Customer will be fully responsible for any and all activities that occur under the passwords or accounts of its Authorized Users. Customer agrees to
1.8 Open Source. The Bitwave Platform and Site may contain open source software. Bitwave represents and warrants that the open source software components of the Bitwave Platform will not contain any license or other terms that require that other software incorporating or used with such open source software be disclosed or distributed in source code form, be licensed for the purpose of making derivative works, or be redistributable at no charge.
1.9 Support and Service Levels. Bitwave may (but has no obligation to) provide technical support services for the Bitwave Platform, through email or other means, in accordance with our standard practice as determined by Bitwave and reserves the right to access Your account to provide such support services. The Bitwave Platform and/or Site may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Bitwave or by third-party providers, or because of causes beyond Bitwave’s reasonable control.
1.10 Professional Services. Bitwave will provide set-up and training in the form of Professional services solely to fee-bearing Customers to the extent set forth in an Order entered into by the parties. Bitwave will not provide any other Professional Services unless otherwise agreed by the parties in writing, and Customer will be solely responsible for its use of the Bitwave Platform.
2. Fees and Payment; Invoices & Taxes
The following terms in this Section 2 are applicable to solely to fee-bearing Customers:
2.1 Fees & Taxes. Customer agrees to pay Bitwave the fees specified in an Order entered into by the parties. The fees set forth in the Order remain in effect for the Initial Order Term as stated in the Order. Bitwave reserves the right to change the fees applicable to any Renewal Term by providing notice prior to the applicable renewal date to Customer’s email address identified in the Order. Customer’s use of the Bitwave Platform after the price change becomes effective constitutes Customer’s agreement to pay the changed fee amount. Customer is responsible to pay any use, services, contract, VAT, withholding or similar taxes applicable to the use, provision, license or sale of Bitwave Solutions, other than taxes based on Bitwave’s net income. Customer will pay such taxes directly or, if Bitwave pays or is required to pay any such taxes, Customer will reimburse Bitwave.
3. Representations & Warranties
3.1 Compliance with Laws. You and Bitwave each represent and warrant that (i) it has the necessary right and authority to enter into this Agreement; and (ii) it will comply with all applicable laws in connection with the performance of its obligations and the exercise of its rights under this Agreement.
3.2 Bitwave Performance Warranty. This warranty is provided solely to Customers and is not applicable to End Clients. During the Order Term, solely for Solutions provided for a fee pursuant to an Order, Bitwave represents and warrants that the Bitwave Platform will materially conform to the terms of the Documentation. In the event Customer provides notice of a breach of the foregoing warranties within 30 days of the performance of the Solution giving rise to the breach, as Customer sole and exclusive remedy for such breach, Bitwave shall reperform or correct the nonconforming Solution within 30 days.
3.3 Sufficient Rights and Compliance Warranty. Customer represents and warrants that it owns or has the legal rights to, has obtained the necessary permissions, consents, licenses and/or approvals for, and has provided proper notices for the lawful transfer and use of any Customer Data and/or any Customer Property provided or made available to Bitwave in connection with this Agreement for the purpose of performing the Solutions and that such Customer Property, and the authorized use thereof, will not violate or infringe any third party intellectual property, privacy, publicity or other proprietary right. If you are an individual user of the Site or an End Client, You represent and warrant that (i) You own or have the legal rights to, have obtained the necessary permissions, consents, licenses and/or approvals for, and have provided proper notices for the lawful transfer and use of any User Content and the User Content will not violate or infringe any third party intellectual property, privacy, publicity or other proprietary right; and (ii) Your User Content does contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing
3.4 Proof of Concept. From time to time, Customer may have the option to participate in a program with Bitwave where Customer gets to use proof of concept products, features or documentation (collectively, “Beta Products”) offered by Bitwave. THE BETA PRODUCTS ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES. BITWAVE MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME BY WRITTEN NOTICE.
3.5 No Tax or Accounting Advice. Bitwave does not advise on any accounting matters or on the merits of any particular transaction or their taxation consequences. By using the Bitwave Solutions, You represent, warrant and covenant that You have been, and will be solely responsible for making Your own independent appraisal and investigation into the risks of any transactions and the underlying currencies involved in any such transactions, and agree to seek independent accounting advice as reasonably necessary. You represent that You have sufficient knowledge, market sophistication, professional advice and experience to make Your own evaluation of the merits and risks of any transactions and any underlying currency. Bitwave makes no warranty to You as to the suitability of the cryptocurrency transactions in Your portfolio(s) and Bitwave assumes no fiduciary duty in its relations with You. You acknowledge and agree that Bitwave is not responsible for determining whether or which taxes apply to Your transactions. You further acknowledges and agrees that You are solely responsible for reporting and paying any taxes arising from Customer’s cryptocurrency transactions.
3.6 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE SITE AND SOLUTIONS ARE PROVIDED “AS IS” AND BITWAVE DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, ACCURACY OR COMPLETENESS OF DATA OR INFORMATIONAL CONTENT, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BITWAVE DOES NOT WARRANT THAT THE SITE, BITWAVE PLATFORM OR SOLUTIONS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. BITWAVE DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OR USE OF THE SITE OR BITWAVE PLATFORM WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, BITWAVE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE RESULTS, ACCURACY OR CORRECTNESS OF ANY DATA OR INFORMATION MADE AVAILABLE THROUGH OR AS A RESULT OF YOUR USE OF THE BITWAVE PLATFORM INCLUDING WITHOUT LIMIATION ANY PRICING, BLOCKCHAIN, ACCOUNTING, OR TAX DATA AND BITWAVE ASSUMES NO LIABILITY OF ANY KIND RELATED THERETO.
4.1 Bitwave Indemnity Obligation. This indemnity is provided solely to Customer and not to End Clients or other Users: Bitwave shall defend, indemnify and hold Customer and its Affiliates and their officers, directors and employees harmless from and against any and all claims, suits, actual damages, costs and expenses, including reasonable attorneys' fees, brought against or suffered by such Customer indemnified parties arising out of a third party claim that the Bitwave Platform infringes or violates any U.S. patent, copyright or trade secret of a third party; provided however Bitwave’s indemnification obligations shall not apply to the extent the claim arises out of (i) Customer’s use of the Solution in an unauthorized manner, or (ii) Customer Property. In the event of an infringement claim for which Bitwave is obligated to indemnify Customer, Bitwave shall have the right, at its option, to (a) procure for Customer the right to continue to use the infringing Bitwave Platform or provide Customer with a non-infringing substitute that would avoid the infringement, or (b) terminate the affected Order (or the affected portion) and provide a pro-rata refund of the unused prepaid fees paid for the Bitwave Platform for the period after the effective date of the termination.
4.2 Your Indemnity Obligation. You shall defend, indemnify and hold Bitwave and its Affiliates and their officers, directors and employees harmless from and against any and all claims, suits, actual damages, costs and expenses, including reasonable attorneys' fees, brought against or suffered by such Bitwave indemnified parties arising out of any third party claim arising out of (i) with respect to Customer, the Customer Property; (ii) with respect to End Clients or individual users, User Content; (iii) Yours or Your Representatives’ unauthorized use of the Bitwave Platform; or (iv) Yours or Your Representatives’ violation of applicable law in connection with its use of the Site or Solutions.
4.3 Indemnity Process. The indemnifying party shall have the right to conduct and control the defense and settlement of any indemnified claim; provided that the indemnified party shall have the right to provide for its separate defense at its own expense. The indemnified party shall give prompt notice of any claim for which indemnity is sought and shall cooperate in defending against such claims at the indemnifying party’s expense.
4.4 Exclusive Remedy. This Section 4 sets forth Customer’s sole remedies and Bitwave’s sole liability for any actual, threatened or alleged claims that the Solutions infringe, misappropriate or otherwise violate any third party Intellectual Property Rights
5. Limitations on Liability; Remedies.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE THEORY OF LIABILITY: (I) IN NO EVENT SHALL BITWAVE HAVE ANY LIABILITY OF ANY KIND, WHETHER DIRECT, INDIRECT OR OTHEWISE, UNDER THIS TOS OR RELATING TO THE SOLUTIONS OR SITE TO ANY END CLIENT OR OTHER USER OTHER THAN A CUSTOMER AND ANY RIGHTS UNDER THIS TOS OR ORDER OR RELATING TO THE SOLUTIONS OR SITES SHALL BE ENFORCEABLE SOLELY BY THE CUSTOMER; (II) IN NO EVENT SHALL BITWAVE’S TOTAL AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS TOS, ORDER, SOLUTIONS AND/OR SITE EXCEED THE TOTAL OF THE FEES PAID AND PAYABLE BY YOU TO BITWAVE PURSUANT TO THE APPLICABLE ORDER DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THE CLAIM AROSE OR IF NO FEES ARE PAID OR PAYBLE BY YOU, THE AMOUNT OF US$100.00; AND (III) IN NO EVENT SHALL BITWAVE BE LIABLE IN CONNECTION WITH THIS TOS OR RELATING TO THE SITE OR SOLUTIONS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS, LOSS OF BUSINESS, OR LOSS OF OR DAMAGE TO SOFTWARE OR DATA) FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE SITE, SOLUTIONS, ORDER OR TOS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, BITWAVE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE TERMS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
6. Term & Termination.
6.1 TOS Term. This TOS shall remain in effect (i) with respect to an End Client or individual Site users, for so long as You use the Site and/or Bitwave Platform; and (ii) with respect to a Customer, for so long an Order is in effect.
6.2 Order Term. The Order shall remain in effect for the Order Term as stated in the Order and will renew solely as set forth in the Order. An Order may be terminated solely as set forth in Section 6.3 hereof shall not otherwise be subject to either cancellation or termination.
6.3 Termination of TOS and Order. This TOS and any Order may be terminated (in whole but not in part) by a party for cause if the other party fails to cure a material breach of the TOS and/or Order within thirty (30) days after receiving written notice of the breach.
6.4 Termination of Site Use. Notwithstanding the foregoing, Bitwave may terminate Your access to (or modify any content) on the Site at any time, for any reason, in its sole discretion.
6.5 Effects of Termination. Immediately upon the termination of the TOS or an Order as applicable, (i) Bitwave shall cease providing the Solutions and Customer’s rights to access the Solutions and/or Site shall terminate provided that Bitwave may provide Customer with access for up to 30 days to allow Customer to download any Customer Data from the Bitwave Platform; (ii) Customer (on behalf of itself and its End Clients and their Representatives) shall securely destroy all Bitwave Property and Bitwave Confidential Information under its control and upon request shall certify to such destruction; (iii) upon request, Bitwave will promptly and securely destroy all of Customer Data, Customer Confidential Information and User Content under Bitwave’s control and shall confirm such destruction; and (iv) Customer shall pay all fees owing and/or payable under any Order provided that if Customer terminates for cause pursuant to Section 6.2 hereof and Customer has a fee-bearing account, Customer shall only be responsible for the fees owing through the effective date of termination and shall be entitled to a pro rata refund of any unused prepaid fees for the period after the effective date of termination. Bitwave reserves the right to permanently delete all Customer Data and/or User Content from the Bitwave Platform and Site 30 days after termination of the applicable Order. All terms intended to survive termination of the TOS and/or Order shall survive such termination. 7 Confidentiality and Personal Information.
7. Confidentiality and Personal Information.
7.1 Confidentiality. During the Order Term and continuing after termination, You and Bitwave shall each retain in confidence, and not use except as expressly authorized in this Agreement, the Confidential Information disclosed or made available by a disclosing party, (including as to Customer, its Licensed Entities or their respective Representatives), whether disclosed in written, oral, electronic or visual form, which is identified as confidential at the time of disclosure or should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including without limitation proprietary or non-public information relating to the business, operations, finances, technologies, products and services, pricing, personnel, customers and suppliers and expressly includes (i) with regard to Customer, Customer Property, and (ii) with regard to Bitwave, Bitwave Property (“Confidential Information”). The parties understand and agree that certain information is public as part of blockchain services. Except as otherwise authorized in this Agreement or an Order, the receiving party will not disclose the Confidential Information of the disclosing party to a third party, other than to its Affiliates and the Licensed Entities and their respective Representatives having a need to know in connection with the performance of this Agreement and subject to a written obligation of confidentiality at least as protective as the terms hereof (or in the case of lawyers and accountants, professional obligations), and the receiving party shall be liable to the disclosing party for any violation of this Agreement by its Affiliates, Licensed Entities and/or their respective Representatives. The receiving Party will secure and protect the Confidential Information under its control through security measures at least as protective as those used by the receiving party to maintain the security of its own information of a similar nature and value, and in any event no less than a reasonable degree of security. Confidential Information shall not include information that (a) is or subsequent to disclosure becomes is publicly known or generally available in the public domain provided the receiving party did not violate its obligations hereunder, (b) is lawfully received from a third party not bound in a confidential relationship with the disclosing party, (c) is already rightfully known to the receiving party prior to receipt from the disclosing party, or (d) was or is generated independently without use of the disclosing party’s Confidential Information. In the event that the receiving party is required by law to make any disclosure of any of the Confidential Information, by subpoena, judicial, administrative order or other legal process, the receiving party will first give written notice of such requirement to the disclosing party, and permit the disclosing party to intervene in any relevant proceedings to protect its interests, and provide full cooperation and assistance to the disclosing party, at the disclosing party’s expense, in seeking to obtain such protection.
7.2 Personal Information. In the event that You or Bitwave party provide the other party with Personal Information, then the receiving party shall use such Personal Information solely for the purpose of the performance of its obligations and the exercise of its rights as provided for in this Agreement. The receiving party shall use such Personal Information solely in accordance with the instructions of the other party and in compliance with all applicable laws and the terms of this TOS.
7.3 Data Security. Bitwave will establish and maintain administrative, physical and technical safeguards designed to guard against the destruction, loss, or alteration Your Confidential Information and Personal Information. Without limiting the foregoing, with respect solely to the Bitwave Platform, Bitwave shall at all times in connection with this Agreement: (i) maintain and enforce an information security program including administrative, physical and technical security policies and procedures with respect to its processing of Confidential Information and Personal Information consistent with commercially reasonable industry practices and shall maintain SOC2 Type I and II certification (or another comparable recognized professional industry standard) designed to protect against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling or processing of such information and endeavor to ensure a level of security appropriate to the risks presented by the processing of such information and the nature of such information.
7.4 Ownership. Bitwave owns and retains all right, title and interest to the Bitwave Property. Customer owns and retains all right, title and interest to the Customer Property. Bitwave expressly owns any derivative works of or improvements to any of the Bitwave Property whether made by Bitwave, You, End Client, Customer or their Representatives. You agrees to assign, and hereby do assign, to Bitwave any right, title or interest which You may have or obtain in any derivative works of the Bitwave Property which You have developed or may in the future develop and will upon Bitwave’s request execute and deliver such instruments of transfer and other documents to effect, complete and confirm such assignment.
7.5 Customer Property -- License Grant to Bitwave. Customer hereby grants Bitwave a non-exclusive, royalty-free, worldwide right during the Order Term to use, access, copy, store, transmit and transfer the Customer Property provided or made available to Bitwave solely for the purpose of providing the Solutions. Bitwave has the right to remove any Customer Property from the Bitwave Platform which Bitwave reasonably believes violates applicable law. Customer and End Client each respectively agree that Bitwave has the right to collect and create deidentified and anonymous usage data, statistical data and meta data derived from Your use of the Bitwave Platform for the purpose of testing and improving the Bitwave Platform provided that such derived data cannot be used to identify or be linked to Customer or any entity or individual or reveal any identifiable Customer Data or be used to recreate any Customer Data (“Derived Data”). Notwithstanding anything herein to the contrary, Customer hereby grants Bitwave an unlimited, royalty-free, worldwide, irrevocable, perpetual right to modify, copy, store and use, the Derived Data solely for the purposes of testing, improving and providing the Bitwave Platform. Bitwave agrees not to sell, distribute and/or disclose the Derived Data to any third parties except that Bitwave may disclose the Derived Data to its Representatives, subcontractors and assignees as permitted hereunder.
7.6 User Content – License Grant to Bitwave. By posting Your User Content on the Site, You hereby grants Bitwave a non-exclusive, royalty-free, worldwide right to use, access, copy, modify, display, publish, store, transmit and transfer the User Content provided or made available to Bitwave in connection with your use of the Site solely in connection with the operation of the Site, as applicable. Bitwave has the right to remove any User Content from the Bitwave Platform which Bitwave reasonably believes violates applicable law. Bitwave has the right, but not the obligation, to monitor the Site and User Content. You further agree that Bitwave may remove or disable any User Content at any time for any reason.
7.7 Bitwave Property – License Grant to Customer. Bitwave grants Customer a non-exclusive, royalty-free, non-transferrable, non-sublicensable, worldwide, perpetual license to use, access, copy, store, any Bitwave Property embodied in any deliverables provided in connection with the Solutions solely for Customer’s business purposes in connection with Customer’s authorized use of the Solutions.
7.8 Third Party Data. Under no circumstances will Bitwave be liable in any way for any data, content or materials of any third parties (including users), including for any errors or omissions in any such third party data or content, or for any loss or damage of any kind incurred as a result of the use of any such data or content. Customer acknowledges that Bitwave does not pre-screen third party data or content, but that Bitwave and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any data or content that is available via the Site or Solutions. Without limiting the foregoing, Bitwave and its designees will have the right to remove any data or content that violates this TOS or is deemed by Bitwave, in its sole discretion, to be otherwise objectionable. You must evaluate, and bear all risks associated with, the use of any third party data and content, including any reliance on the accuracy, completeness, or usefulness of such data and content.
7.9 Reservation of Rights and Feedback. Notwithstanding anything herein to the contrary, provided that Bitwave does not use or disclose Customer or End Client Confidential Information, Bitwave shall be free to use, exploit and disclose its general skills, concepts, ideas, know-how, and expertise gained or learned in connection with the provision of the Solutions or Site or otherwise in connection with this TOS, and Bitwave shall not be restricted from creating output for other customers similar to that provided to Customer and/or End Clients. Bitwave is entitled to the unlimited, unrestricted, free use and dissemination of any suggestions, ideas, and/or feedback relating to the Bitwave Platform provided by You. Customer and/or End Clients.
7.10 Trademarks. Customer hereby grants Bitwave a limited, worldwide, non-exclusive, royalty-free right and license to use and display Customer’s corporate name and logos (and any other identifying marks as agreed upon by the Parties in writing) (the “Customer Marks”) on Bitwave’s website and social media pages, and in other marketing materials, in each case, in connection with marketing and advertising the Bitwave Platform. Bitwave will reasonably comply with Customer’s trademark guidelines, as may be furnished in writing by Customer to Bitwave from time to time. All use of the Customer Marks, and all goodwill associated therewith, will inure to the benefit of Customer. Customer may decline and/or terminate such right to use the Customer Marks by sending an email to firstname.lastname@example.org stating that you do not wish to be used as a reference. The Bitwave name and logos are trademarks and service marks of Bitwave (collectively the “Bitwave Marks”). Other company, product, and service names and logos used and displayed via the Bitwave Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Bitwave. Nothing should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Bitwave Marks or any third party trademarks, without our prior written permission in each instance. All goodwill generated from the use of Bitwave Trademarks will inure to our exclusive benefit of Bitwave.
8.1 Governing Law. Any legal proceedings under or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in California. Each Party submits to the personal jurisdiction of, and waives any objection against jurisdiction by, such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the governing state laws.
8.2 Assignment and Related Matters. Neither party may assign this Agreement, or any of its rights or obligations hereunder (in whole or in part) except with the prior written consent of the other party provided that Customer and/or Bitwave may assign the Agreement (in whole but not in part), without consent (but with notice), to a successor in interest resulting from a merger, sale of substantially all of its assets or a change of control of such party provided that in the case of an assignment by Customer, the assignee is not a direct competitor of Bitwave. Subject to the foregoing, the terms of this Agreement shall be binding upon the permitted successors and assigns of each party. Bitwave shall have the right to use subcontractors in connection with the performance of the Solution provided that Bitwave shall be responsible for the acts and omissions of its subcontractors to the same extent as Bitwave would be responsible hereunder for its own acts and omissions.
8.3 Government Matters and Export Restrictions. You and Bitwave will each comply with any applicable export or trade restrictions applicable to its performance of its obligations and/or use of the Site and Solutions. Customer agrees not to remove or export from the United States or allow the export or re-export of the Site or Bitwave Platform or anything related thereto in violation of any trade or export restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
8.4 General. The terms and conditions of the TOS and Order supersede all previous agreements, communications, proposals or representations related to the subject matter hereof. This TOS may be amended solely by the mutual agreement of both parties in writing or by the process of updating this TOS as described at the outset of this TOS. Any additional or different terms in purchase order or other documents other than the Order shall not modify or be binding on the other party. If the performance of any obligation hereunder (other than payment) is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labor disturbances, power surges or failures, the party shall be excused from such performance to the extent necessary, provided the party shall use reasonable efforts to remove such causes of nonperformance. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of this TOS and You do not have any authority of any kind to bind Bitwave in any respect whatsoever. Notices shall be submitted in writing using registered mail to the address or email address set forth in the Order or to the email address associated with the End Client or Your user account. Notices sent by email will be deemed delivered the next business day after being sent and if sent by mail, upon delivery. The exchange of a signature by electronic means shall be sufficient to bind the parties to this Agreement or to any Order
9. DMCA Notice
The DMCA Notice attached hereto as Exhibit 1 applies to the Bitwave Site and use of the Solutions as applicable.
11. Defined Terms.
“Affiliate” shall mean any entity controlled by, controlling, or under common control with a party to this Agreement during the period such control exists. For the purposes hereof “control” means the power to direct the operation, policies and management of an entity through the ownership of more than fifty percent (50%) of the voting securities of such entity, by contract, or otherwise. “Authorized User” means a single, identifiable employee of Customer and/or the Licensed Entity or third-party independent contractor (such as a consultant) who access the Bitwave Platform on Customer’s behalf. “Bitwave Platform” means the proprietary computer software platform(s) identified in a Customer Order (including any tools, dashboard, data or content forming a party of the software), including any Updates and related support services; and expressly excludes any third party software not forming a part of the Bitwave Platform and the Customer Property. “Bitwave Property” means any technical information, content, techniques, ideas, analytics, methods, processes, software, interfaces, utilities, data, data templates or files, reporting templates, dashboard, databases, libraries, documents, directories, designs, know-how, intellectual property, information or materials of any kind (regardless of form) which has been or is acquired, created, developed or licensed by Bitwave prior to or outside the scope of this Agreement and any improvement, modification or other derivative works thereof and all Intellectual Property Rights therein; and expressly includes, without limitation the Site, Bitwave Platform and Documentation. “Customer Data” means all data, content, information and media including without limitation any Personal Information, posted, provided or made available or otherwise input into the Bitwave Platform or Site by or on behalf of Customer and/or the Licensed Entities or their respective Representatives including any derivative works thereof, but excluding Bitwave Property. “Customer Property” means the Customer Data, Customer Systems and any other software, applications, computer systems, user accounts to third party software applications or other materials provided or made available by or on behalf of Customer and/or the Licensed Entities or their respective Representatives in connection with this Agreement. “Customer Systems” any computer software, applications, servers, networks, platform or systems within Customer’s or its Representatives’ custody or control or licensed from a third party that is used to interact with the Bitwave Platform. “Data Protection Laws” means any data privacy or data protection laws under any law applicable to a party’s performance under this Agreement. “Documentation” means the user manuals and operator instructions and specifications issued by Bitwave in conjunction with the Bitwave Platform. “End Client(s)” means a third party that is an end client of Customer and/or its Affiliate to which Customer or its Affiliate provide managed services in connection with the Bitwave Platform. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. “Licensed Entity” means the legal entity(ies) of Customer (and/or its Affiliates) that are authorized (as stated in the Order) to use the Bitwave Platform; and if expressly stated in the Order as part of the Licensed Entity designation, Customer and/or its Affiliates as Licensed Entities may use the Solution to provide managed services to their End Clients, and in such case, the End Clients are deemed Licensed Entities solely for the limited purposes set forth in Section 1 of this Agreement. “Order” means the document(s) by which the Customer orders the Solutions and which is mutually signed by Customer and Bitwave and may take the form of a sales order and/or a statement of work. “Order Term” the subscription term specified in the Order during which the Bitwave Platform is available for use and any renewal term as expressly described in the Order. “Personal Information” or “Personal Data” means information that identifies or could be used to identify an individual and expressly includes ‘personal information’ or ‘personal data’ as such terms are defined in any applicable Data Protection Laws. “Professional Services” means consulting, training, installation or other professional services to be provided by Bitwave to a Customer as described in the Order. “Representatives” means the employees, contractors, consultants, subcontractors and professional advisors of a party and/or its Licensed Entities and/or Affiliates, including in the case of Customer its Authorized Users. “Solution(s)” means the Bitwave Platform and the Professional Services. “Updates” means any maintenance releases, bug fixes, error corrections, or other changes made to the Bitwave Platform that are made generally available by Bitwave from time to time in its sole discretion as part of the licensed Solution, but excluding solutions, functionality or modules sold separately. “User Content” means any data, information and/or content (including any Personal Information) provided or made available by or on behalf of You in connection with your use of the Solution or Site.
Digital Millennium Copyright Act Notice
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Bitwave will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Bitwave’s Copyright Agent at email@example.com (subject line: “DMCA” Takedown Request”). You may also contact us by mail or facsimile at:
60 Russell St
San Francisco, CA 94109
Notice: To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
Counter-Notice: If you believe that the relevant Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Bitwave will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Bitwave’s sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Bitwave has adopted a policy of terminating, in appropriate circumstances and at Bitwave 's sole discretion, members who are deemed to be repeat infringers. Bitwave may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.