Terms of Service

Terms of Service

May 2017

Bonanza.com, Inc., (“GitClear”, “Company”, “our”, “us” or “we”) offers certain features and services via the Site (as defined herein), allowing companies to measure performance, identify areas of improvement and better understand their internal software development process to ultimately reduce risk and maximize performance (the “Service” or “Services”), different versions of which can be selected as part of the ordering or registration process, through our website, accessible at http://www.gitclear.com (the “Site”). Please read carefully the following terms of service (“Terms”) and our Privacy Policy, which is incorporated into these Terms and may be found by accessing the “Privacy Policy” tab above. These Terms govern your access to and use of the Site and the Services and constitute a binding legal agreement between you and GitClear.

References made to the Services shall include all versions and editions of the Services offered through the Site. All Services will be available to you pursuant to these Terms, in addition to any terms and conditions listed in any subscription agreement, order form, or purchase order in connection with your Service (collectively, the “Service Agreement”). You agree that your purchase of any Service is not contingent on the delivery of any future functionality or features, nor is it dependent on any oral or written public comments made by GitClear regarding future functionality or features. In the event the Service Agreement contains different terms and conditions or requires you to agree with and accept additional terms and conditions, and if there is a conflict between those terms and conditions and these Terms, the terms and conditions provided in the Service Agreement will take precedence with respect to your use of or access to the Site and Services.

YOU ACKNOWLEDGE AND AGREE THAT, BY OR ACCESSING OR USING THE SITE OR THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR SERVICES.

If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

I.TERM & USERS

Unless otherwise specified in your Service Agreement: (i) Services are accessible through user subscriptions (the maximum number of users that can access the Services is specified in your Service Agreement) and will last for a specific subscription term (“Term”), (ii) additional user subscriptions may be added during your Term at the same pricing that is listed in your Service Agreement (the cost will be prorated monthly for the remainder of the effective Term at the time that additional user subscriptions are added), and (iii) the added user subscriptions shall terminate on the same date as the original subscription under the Service Agreement (i.e., at the end of the Term). User subscriptions are for designated specific users only and cannot be shared or used by more than one individual, but may be reassigned to new users replacing former users who no longer require ongoing use of the Services.

II.FEES

You shall pay all fees specified in your Service Agreement hereunder. Except as otherwise specified herein or in your Services Agreement: (i) fees are based on the Services you purchase and not actual usage, and (ii) payment obligations are non-cancelable and fees paid are non-refundable. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for user subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Term.

III.PAYMENT TERMS

Payment Method & Billing

To affect purchase of your Services, you will provide GitClear with valid and updated credit card information along with a valid purchase order or with an alternative document or payment method that GitClear, in its sole discretion, agrees to accept. If you provide credit card information to GitClear, you authorize GitClear to charge such credit card for all purchased Services listed in your Service Agreement for the initial subscription term and for any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the Service Agreement. GitClear may use third party payment processing to accept and process payments. GitClear is not liable for the acts or omissions of these third parties except to the extent imposed by applicable law. If the Service Agreement specifies that payment will be made by a method other than a credit card, GitClear will invoice you in advance in accordance with the relevant Service Agreement. Unless otherwise stated in the Service Agreement, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to GitClear and notifying GitClear of any changes to such information.

Late Payments

If GitClear does not receive payments from you by the due date, then at GitClear’s discretion, (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (ii) GitClear may condition future subscription renewals on different payment terms. If any amount owing by you under this or any other agreement for the Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized GitClear to charge to your credit card), GitClear may, without limiting its other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend the Services to you until such amounts are paid in full. GitClear will give you at least 7 days’ prior notice that your account is overdue before suspending services to you. GitClear shall not exercise its rights hereunder if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

Taxes

Unless otherwise stated, GitClear’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchased Services. In the event that GitClear has a legal obligation to pay or collect Taxes for which you are responsible, GitClear will bill you the appropriate amount for any such Taxes.

Automatic Renewal

User subscriptions purchased by you commence on the start date specified in the applicable Service Agreement and continue for the Term specified. All user subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal. In the event that you intend to provide GitClear with a notice of non-renewal, you understand and acknowledge that you shall deliver a notice of non-renewal prior to GitClear billing you for the upcoming month in order to avoid incurring additional fees. For the avoidance of doubt, all pre-paid fees are deemed non-refundable. The renewal charge will be equal to the fee in effect during the prior term, unless GitClear has given you advance notice of a fee increase, or posted the fee increase on the Site or through the Services, which shall be effective upon renewal thereafter.

IV.TERMINATION

Without limiting other remedies, GitClear may at any time refuse to provide access to the Site or Services to you, or suspend your access to the Site or Services, permanently or temporarily without reason or notice to you. Such suspension amounts to a termination by GitClear of these Terms (i) if GitClear suspects you have failed to comply with any terms or conditions of these Terms or any rules or policies established by GitClear or (ii) if GitClear suspects that your actions may be illegal or cause liability, harm or disruption to you, other companies, GitClear or any other users of the Site or Services or third parties. Upon such termination, you will cease all use of the Site and Services.

Except for paid accounts, we reserve the right to terminate and delete your account if you have not accessed our Services for 12 consecutive months. We will of course provide you with notice via the email address associated with your account before we do so.

V.YOUR STUFF & YOUR PERMISSIONS

When you use our Services, you provide us with things like your repository, commit information, and codebase (the “Code”), along with email addresses, contacts and other information provided during the registration process (the “Other Information”, and together with the Code, collectively “Your Stuff”). Your Stuff is yours. These Terms do not give us any rights to Your Stuff except for the limited rights that enable us to offer the Services. Our Services provide you with features like photo thumbnails, document previews, email organization, easy sorting, editing, sharing and searching. These and other features may require our systems to access, store and scan Your Stuff. By making available any of the Other Information through the Site and Services, you hereby grant GitClear the right to use, copy and otherwise exploit the Other Information solely for the purposes of providing the Services. Additionally, by making available any of the Code through the Site and Services, you hereby grant GitClear the right to use the Code solely for the purposes of maintaining a copy in order to provide the Services. GitClear does not claim any ownership rights in any of Your Stuff and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any of Your Stuff.

VI. YOUR RESPONSIBILITIES

You are responsible for your own conduct, Your Stuff and complying with these Terms. Our Services allow you to share Your Stuff with others, so please think carefully about what you share. Content in the Services may be protected by a third party’s intellectual property rights. Please do not copy, upload, download or share content unless you have the right to do so. We may review your conduct and content for compliance with these Terms. With that said, we have no obligation to do so. We are not responsible for the content people post and share via the Services. Please safeguard your password to the Site and Services, make sure that others do not have access to it, and keep your account information current. Finally, our Services are not intended for and may not be used by people under the age of 18. By using our Services, you are representing to us that you are over the age of 18.

VII.OWNERSHIP

The Site and Services are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, these Terms do not grant you any right, title or interest in the Site, Services, others’ content in the Services, GitClear trademarks, logos and other brand features. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or Services.

VIII.GENERAL PROHIBITIONS

You agree not to, and to not allow third parties (including end users) to, do any of the following:

• violate, or encourage the violation of, the legal rights of others (including allowing end users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act of 1988);
• engage in, promote or encourage illegal activity;
• use the Site and Services for any unlawful, invasive, infringing, defamatory or fraudulent purpose (including phishing, creating a pyramid scheme or mirroring a website);
• to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
• to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
• to disable, interfere with or circumvent any aspect of the Services;
• to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (ie. “spam”); or
• to use the Services, or any interfaces provided with the Services, to access any other GitClear product, platform, or service in a manner that violates the terms of service of such other GitClear product or service.

IX.COPYRIGHT POLICY

GitClear respects copyright law and expects its users to do the same. It is GitClear’s policy to terminate, in appropriate circumstances, the accounts of registered users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see GitClear’s Copyright Policy which is incorporated into these Terms and may be found by accessing the “Copyright Policy” tab above.

X.DISCLAIMERS

THE SITE AND SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, GitClear EXPLICITLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE AND SERVICES INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. YOU HEREBY AGREE TO RELEASE GitClear FROM ANY DAMAGES OR CLAIMS IN ANY WAY CONNECTED WITH THE SITE OR SERVICES. GitClear MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. GitClear MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SERVICES OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM GitClear OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE ABOVE DISCLAIMERS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

XI.INDEMNITY

You agree to defend, indemnify, hold GitClear, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders harmless from and against all claims, liabilities, damages, losses and expenses, including without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site and Services or any breach or alleged breach by you of these Terms.

XII.LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE AND SERVICES REMAINS WITH YOU. GitClear WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR SERVICES, OR FROM ANY COMMUNICATIONS, INTERACTIONS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GitClear HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL GitClear’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO GitClear FOR USE OF THE SITE AND SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT MADE ANY PAYMENTS TO GitClear, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND GitClear. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

XIII.CONTROLLING LAW

These Terms and any action related thereto will be governed by the laws of the State of Washington, excluding its conflict of laws rules.

XIV.DISPUTE RESOLUTION

We want to address your concerns without needing a formal legal case. Before filing a claim against GitClear, you agree to try to resolve the dispute informally by contacting hello@gitclear.com. We’ll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or GitClear may bring a formal proceeding in accordance with these Terms.

We Both Agree To Arbitrate

You and GitClear agree to resolve any claims relating to these Terms or the Services through final and binding arbitration. The parties agree to submit such dispute to binding arbitration before a single impartial arbitrator from JAMS to hear and determine the dispute. The arbitration shall be conducted pursuant to, and the arbitrator will be selected in a manner consistent with, JAMS Comprehensive Arbitration Rules & Procedures. The determination of the arbitrator shall be conclusive and binding upon the parties. Each party to an arbitration shall pay its own expenses, including reasonable fees, costs and disbursements of counsel. The parties shall equally share the fees of the arbitrator and any administrative fees of JAMS. The sole and exclusive venue for the arbitration and or any legal dispute shall be chosen by GitClear upon its reasonable discretion.

Judicial Forum For Disputes

In the event that the agreement to arbitrate is found not to apply to you or your claim, you and GitClear agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Seattle, Washington. Both you and GitClear consent to venue and personal jurisdiction there.

XV.NOTICES

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by GitClear via email (in each case to the address that you provide) or (ii) by posting to the Site or through the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.

XVI.ENTIRE AGREEMENT

These Terms, together with any Service Agreement, constitute the entire and exclusive understanding and agreement between you and GitClear regarding the Site and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements, between you and GitClear regarding the Site and Services. These Terms create no third party beneficiary rights.

XVII.ASSIGNMENT

You may not assign or transfer these Terms, by operation of law or otherwise, without GitClear’s prior written consent; provided, however, you shall have the right to assign these Terms, in whole or in part, to any acquirer or successor of all or substantially all of your business or assets to which these Terms relate (whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise) so long as such acquiring entity agrees to be bound by the terms and conditions of these Terms. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. GitClear may assign or transfer these Terms, at its sole discretion, without restriction.

Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

XVIII.MODIFICATIONS

GitClear reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or through the Services or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site or the Services after we have posted a modification on the Site or through the Services or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and the Services.

XIX.GENERAL

The failure of GitClear to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of GitClear. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

XX.QUESTIONS & CONTACT INFORMATION

If you have any questions about these Terms, please contact GitClear at hello@gitclear.com.

To request that your data is removed from GitClear, please contact us by sending an email to privacy@gitclear.com