Terms of Service
TERMS AND CONDITIONS OF SERVICE
Effective date: 22.06.2023.
BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON OR USING THE TENDERLY PLATFORM, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK “I ACCEPT” AND YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE TENDERLY PLATFORM.
FURTHER, THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND TENDERLY ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS UNLESS YOU OPT OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 8 “AGREEMENT TO ARBITRATE”).
- Access to and Use of the Tenderly Platform Subject to the terms and conditions of this Agreement and any other agreement between You and us (including your compliance with applicable payment obligations), Tenderly hereby grants You, up until such time as your subscription to the Tenderly Platform is terminated by You or Tenderly as set forth herein, a limited, personal, revocable, non-exclusive, non-sublicensable, non-transferable right for You to access and use the Tenderly Platform, solely for Your personal use and not for the benefit of any other person or entity. You are responsible for obtaining, deploying and maintaining all computer hardware, software, modems, routers and other equipment necessary for You to access and use the Tenderly Platform via the Internet.
- Eligibility In order to access and use the Tenderly Platform, You must be 18 years of age or older.
- Registration; Login Credentials You will be required to register with Tenderly in order to access and use the Tenderly Platform. In order to register, You will be required to share certain information with Tenderly (“Registration Information”). Tenderly reserves the absolute and unrestricted right to reject or terminate Your registration for any reason in Tenderly’s sole discretion. Tenderly will enable You to create a user login and password for access and use of the Tenderly Platform (“Login Credentials”). You are responsible for maintaining the confidentiality of Your Login Credentials and for any and all access and use of the Tenderly Platform that occurs under Your Login Credentials. You agree to immediately notify Tenderly of any unauthorized use of Your Login Credentials. You warrant, represent and covenant to Tenderly that (i) all Registration Information shall be correct and complete when provided and that You shall update such Registration Information when errors are identified and (ii) You have the right to provide the Registration Information to Tenderly for the purposes set forth herein, without misappropriation, violation or infringement of any third party intellectual property rights and the provision of such information complies with all applicable laws and regulations.
- Restrictions You shall not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Tenderly Platform; (ii) modify, translate, or create derivative works based on any element of the Tenderly Platform or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer Your rights to use the Tenderly Platform; (iv) use the Tenderly Platform for the benefit of any person or entity other than for Your benefit; (v) remove any proprietary notices from any content You receive through the Tenderly Platform; (vi) publish or disclose to third parties any evaluation of the Tenderly Platform without Tenderly’s prior written consent; (vii) use the Tenderly Platform for any purpose other than its intended purpose; (viii) interfere with or disrupt the integrity or performance of the Tenderly Platform; (ix) use any ‘robots’, ‘spiders’ or other methods to extract or copy bulk content from the Tenderly Platform; or (x) attempt to gain unauthorized access to the Tenderly Platform.
- Security Tenderly will deploy commercially reasonable security precautions intended to protect against unauthorized access to any Registration Information. Tenderly will exercise reasonable efforts to deploy corrections within the Tenderly Platform for security breaches made known to Tenderly. However, You acknowledge that, notwithstanding the security precautions deployed by Tenderly, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Tenderly Platform, Your Registration Information and information and data relating to your use of the Tenderly Platform. Tenderly cannot and does not guarantee the privacy, security, integrity, or authenticity of any information or data transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
FEES AND PAYMENT
- Subscription Fees The Tenderly Platform user interface will identify the applicable fees for the use of the Tenderly Platform (“Subscription Fees”). You will be billed in advance on a monthly basis for the Subscription Fees. If you register for any subscription period other than a month-to-month subscription, your subscription and Subscription Fees are non-cancellable during the applicable subscription period. Tenderly may change the Subscription Fees in its sole discretion at any time.
- Payment Terms Except as otherwise expressly set forth on the Tenderly Platform, You shall pay Tenderly on a monthly basis for the ability to use the Tenderly Platform. You agree that we may automatically charge the payment method You have provided on a monthly basis, unless and until You cancel Your subscription to the Tenderly Platform. You represent that You have the legal right to use any payment method that You submit to us. You shall pay Tenderly the amount due under any invoice within thirty (30) days of the date of invoice by such payment methods as are supported by Tenderly at the time of payment. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction. All amounts paid to Tenderly are non-refundable except as expressly set forth herein. Your payment and related payment information is managed through a third-party payment processor, and Tenderly is not responsible for such third-party processor’s use of Your payment information. By submitting Your payment method information, You grant us the right to store and process Your information with the third-party payment processor, which may change from time to time; You agree that we may change the third-party payment processor and move Your information to other service providers that encrypt Your information using transport layer security (TLS) or comparable security technology. Before we transfer Your information to another third-party payment processor, You will be notified in writing. Once we notify You of the transfer, You will have the option to opt out of the transfer, which you must exercise promptly (or otherwise in such timeframe as may be set forth in the notice to You) if You do not wish us to transfer Your information to the third-party payment processor. If You opt out of any such transfer, please be aware that we may terminate this Agreement for cause as a result of your decision, to the extent permitted by applicable law. You may find a list of our third-party data processors, including our third-party payment processor, at this web page, which we update from time to time.
- Taxes You shall pay all applicable sales, use and value-added taxes (except for taxes imposed on Tenderly’s net income) with respect to the Tenderly Platform.
NO WARRANTIES; DISCLAIMERS
- The Tenderly Platform is provided “AS IS” without any warranties, express or implied. YOUR USE OF THE TENDERLY PLATFORM IS AT YOUR OWN RISK. TENDERLY DOES NOT MAKE, AND TO THE FULLEST EXTENT PROVIDED BY LAW, HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, AND QUALITY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TENDERLY DISCLAIMS ALL LIABILITY FOR THE LOSS OF DATA OR CONTENT ENTERED INTO OR SAVED IN THE TENDERLY PLATFORM. TENDERLY FURTHER DOES NOT REPRESENT OR WARRANT THAT THE TENDERLY PLATFORM WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE.
- You shall indemnify and hold harmless, and at Tenderly’s request defend, Tenderly and its affiliates, licensors, service providers, successors and assigns (and its and their officers, directors, employees, contractors and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to: (a) Your use or alleged use of the Tenderly Platform (other than claims arising from Tenderly’s breach of this Agreement); (b) any breach or alleged breach by You of any of Your covenants, representations or warranties set forth in this Agreement; or (c) your breach of any applicable law or regulation in connection with your use of the Tenderly Platform. You shall not settle any claim for which defense is sought under this Section 4 without the prior written approval of Tenderly, which approval shall not be unreasonably withheld or delayed.
- Ownership You acknowledge that the Tenderly Platform and all content made available in connection therewith, and all related intellectual property rights, are the sole and exclusive property of Tenderly and its licensors. Each party retains all other rights not expressly granted in this Agreement.
- Feedback License You hereby grant to Tenderly, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under Your intellectual property rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Tenderly Platform that You may provide from time to time, including without limitation Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in relation to the Tenderly Platform or any other products or services.
- Usage Data Notwithstanding anything else in the Agreement or otherwise, Tenderly may monitor Your use of the Tenderly Platform for Tenderly’s internal business purposes, including without limitation to create data or information therefrom in an aggregate or de-identified manner, such as compilation of statistical and performance information related to the provision and operation of the Tenderly Platform. You agree that Tenderly may make such data and information publicly available, and use such information to the extent and in the manner required by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify You. Tenderly retains all intellectual property rights in such data and information.
Limitation of Liability
- No Consequential Damages TENDERLY SHALL NOT BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOSS OF USE OR COSTS OF OBTAINING SUBSTITUTE SERVICES, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TENDERLY PLATFORM, EVEN IF TENDERLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE TENDERLY PLATFORM OR RESULTS THEREOF. TENDERLY WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
- Limits on Liability TENDERLY SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE TENDERLY PLATFORM GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY YOU TO TENDERLY UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY TENDERLY TO YOU IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THIS AGREEMENT. YOU RELEASE TENDERLY AND ITS LICENSORS, DATA PROVIDERS AND SERVICE PROVIDERS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE TENDERLY PLATFORM AND THIS AGREEMENT IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 6.2.
- Third Party Liability TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL TENDERLY’S LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR PUNITIVE, AND INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOSS OF USE OR COSTS OF OBTAINING SUBSTITUTE SERVICES, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TENDERLY PLATFORM, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Essential Purpose You acknowledge that the terms in this Section 6 are an essential basis of the bargain described in this Agreement and that, were Tenderly to assume any further liability, the fees payable hereunder would out of necessity be set much higher. THE LIMITATIONS IN THIS SECTION 6 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
TERM AND TERMINATION
- Term The term of this Agreement shall commence on the Effective Date and continue until the expiration or termination of all Subscription Term(s) for the Tenderly Platform, unless earlier terminated as provided in this Agreement.
- Termination Tenderly reserves the right to terminate this Agreement for any or no reason in its sole discretion at any time; provided that, in the event of such termination without cause, Tenderly will provide a pro-rata refund to You of any pre-paid Subscription Fees for the then-current Subscription Term. Further, either party may terminate this Agreement (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.
- Effects of Termination Upon expiration or termination of this Agreement, (i) Your use of and access to the Tenderly Platform shall cease; and (ii) all fees and other amounts owed under this Agreement shall be immediately due and payable by You. Tenderly shall have no obligation to maintain or provide Your Registration Information and may thereafter unless legally prohibited, delete Your Registration Information in its systems or otherwise in its possession or under its control.
- Survival This Section 7.4 and Sections 2 (Fees and Payment), 3 (No Warranties; Disclaimers), 4 (Indemnification), 5 (Proprietary Rights), 6 (Limitation of Liability), 7.3 (Effects of Termination), 8 (Agreement to Arbitrate) and 9 (Miscellaneous) shall survive any termination or expiration of this Agreement.
AGREEMENT TO ARBITRATE
- Opt Out You may opt out of this agreement to arbitrate in this Section 8. If You do so, neither You nor we can require the other to participate in an arbitration proceeding. To opt out, You must notify us in writing within thirty (30) days of the date that You first became subject to this arbitration provision. The opt out notice must state that You do not agree to the agreement to arbitrate and must include Your name, address, phone number, Your Login Credentials to which the opt out applies and a clear statement that You want to opt out of this agreement to arbitrate. You must sign the opt out notice for it to be effective. This procedure is the only way You can opt out of the agreement to arbitrate. You must use this email address to send us Your opt-out notice: email@example.com.
- Survival This Section 8 will survive the termination of Your relationship with Tenderly.
- Notices You agree to the electronic delivery of notices.
- Amendment; Waiver We may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Tenderly Platform user interface, is sent to the email address associated with Your account or otherwise; or (ii) when You opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
- Severability Suppose any provision of this Agreement is held invalid or unenforceable for any reason. In that case, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
- Subject to Section 9.4(b), this Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. Subject to Section 9.4(b), and further subject in all respects to Section 8 (Agreement to Arbitrate), for any disputes arising out of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco County, State of California, USA.
- Solely for individuals or entities that are domiciled in the European Union, this Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of Serbia as applied to agreements entered into and to be performed in Serbia without giving effect to conflicts of laws rules or principles which would apply the laws of any other jurisdiction. Subject in all respects to Section 8 (Agreement to Arbitrate), for any disputes arising out of this Agreement, the parties consent to exclusive jurisdiction of the courts located in Serbia.
- The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
- Attorneys’ Fees In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including without limitation such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
- Force Majeure Neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; epidemic, pandemic, unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, act of terror, insurrection, riot, act of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused, and whether or not foreseeable as of the Effective Date.
- Export and Sanctions Compliance In connection with this Agreement, You shall comply with all applicable import and export laws and regulations, including without limitation in terms of Your usage of our Platform. You shall not knowingly export or re-export any technical data or the Platform, in each case, in whole or in part, directly or indirectly, to any destinations prohibited by the government of the U.S.A. or to any Specially Designated Nationals or other denied or blocked parties specified by the government of the U.S.A. from time to time. The term “technical data,” in this context, means such data as is defined as technical data by applicable export regulations in effect in the U.S.A. We reserve the right to decline to export or re-export any technical data or the Platform, in whole or in part, in connection with this Agreement.
- Assignment You may not assign Your rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without Tenderly’s prior written consent. Tenderly may assign its rights or obligations under this Agreement without Your prior written consent. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
- Relationship of the Parties Tenderly is an independent contractor to You. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
- Construction of Agreement Each party acknowledges that it has had the opportunity to have legal counsel review this Agreement and to negotiate its terms and conditions. Should any questions of construction or interpretation of this Agreement arise, then the parties agree that no presumption shall be applied against the party drafting this Agreement or any portion thereof and that the language of this Agreement shall, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either party.
- Entire Agreement This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.