Welcome to ByteBrew (“ByteBrew”, “Company”, “we” and “us”). Please read on to learn the rules and restrictions that govern your use of the ByteBrew platform (the “Services”). The ByteBrew platform is a mobile measurement platform created to give developers access to tool sets under a centralized service and is made up of multiple individual technologies including: mobile game analytic measurement, monetization analytics, live operation management, mobile install tracking attribution, and marketing campaign automation. The foregoing technologies housed under the ByteBrew platform also constitute the “Services”. If you have any questions, comments, or concerns regarding this Agreement or the Services, please contact us at firstname.lastname@example.org.
These Terms of Service (the “Agreement”) are a binding contract between you and ByteBrew. You must agree to and accept all the terms of this Agreement, or you don’t have the right to use the Services. By clicking a box indicating your acceptance or by using the Services in any way, you or the entity you represent (“Customer” and “you”) agree that you have read and agree to be bound by and a party to the terms of this Agreement. You represent and warrant that you are authorized to bind Customer.
1.1 Subject to the terms and conditions of this Agreement (including any limitations and restrictions set forth on the Services), Company grants to Customer a limited, revocable, non-transferable, non-exclusive right to use and access the Services solely for Customer’s business purposes, only as provided herein and only in accordance with Company’s applicable official user documentation (the “Documentation”). The Services are subject to modification from time to time at Company’s sole discretion, for any purpose deemed appropriate by Company.
1.2 Company reserves the right, at its sole discretion, to modify or replace any of the provisions of this Agreement at any time by posting a notice on the Services or by sending Customer a written notice. It is Customer’s responsibility to check this Agreement periodically for changes. Customer’s continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
1.3 Company reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Company.
2.1 Access to the Services may require the Customer to install certain software applications. Customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications.
2.2 Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (vii) use the Services to build an application or product that is competitive with any Company product or service; or (viii) otherwise use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation).
2.3 Customer will cooperate with Company in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Company may reasonably request. Customer will also cooperate with Company in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.4 Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services (or, if Customer allows any third party to access the Services, such third party’s use of the Services). Although Company has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Company may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 In order to participate in the Services, Customer must complete the registration process on the Company’s website and provide valid and accurate information in the registration form, including Customer’s e-mail address, company/user name and account password. Customer may allow limited third parties to access solely the reporting functions of the Services, provided that in each case such access is only given to applications directly connected and controlled by Customer’s account and Customer will be responsible for such third party’s acts or omissions. In any event, Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account with or without Customer’s knowledge or consent.
2.7 Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties and may allow Customers to work with third parties such as mobile advertising networks and other analytics service providers (collectively, “Third Party Services”). Customer may configure its account and its use of the Services to allow Company to share certain Customer Data with such Third Party Services, and by doing so, Customer hereby grants Company the right to share such Customer Data with Third Party Services (and represents and warrants it has the rights to do so). In any event, Company is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for complying with any applicable terms or conditions of the Third Party Services. Company does not make any representations or warranties with respect to Third Party Services or any third party providers. Except as expressly set forth herein, any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
2.8 If Customer is an agency or party representing or providing services for the benefit of a third party (“Agency Client”), Customer represents and warrants that (i) it is authorized to act on behalf of the Agency Client, (ii) the Agency Client has provided Customer with explicit permission to (and obtained all legally required consents to permit Customer to) collect on its behalf and view Customer Data with respect to such Agency Client, and (iii) the Agency Client is bound in writing to the terms of this Agreement as if they were Customer herein. Customer is responsible for the Agency Client’s compliance with the terms of this Agreement, including without limitation, Section 4. Customer acknowledges and agrees (i) that Company makes no representations or warranties for the direct or indirect benefit of any Agency Client and (ii) Customer will not make any representations or warranties to the Agency Client on behalf of Company. Customer agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from or relates to: (a) any representations and warranties made by Customer in connection with the Services, (b) any claims made by or on behalf of any Agency Client pertaining to Customer’s use of the Services and (c) any claims with respect to acts or omissions of an Agency Client in connection with the Services.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). “Proprietary Information” includes but is not limited to any proprietary data, planned technology development, techniques, data models, algorithms, software, source documents, research, proposed services, SDK’s, API’s and financial information related to or provided by Company.
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Company may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.
3.3 Customer acknowledges that Company does not wish to receive any Proprietary Information from Customer that is not necessary for Company to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Company may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
4.1 Company alone (and its licensors, where applicable) will retain all right, title and interest in and to the Services and Software, and all software, products, works, and other intellectual property and moral rights related thereto or created, used or provided by Company for the purposes of this Agreement, including any copies and derivative works of the foregoing. Customer may from time to time provide suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Service and/or the Software, which are hereby assigned to Company. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
4.2 For purposes of this Agreement, “Customer Data” means all content, data, information and other materials created, submitted, provided or made available by or on behalf of Customer, its Agency Clients and/or its and their end users (including in connection with Customer’s or Agency Clients’ applications) to or through the Services. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest to all Customer Data and the intellectual property rights with respect to that Customer Data. Customer, not Company, shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness and intellectual property ownership or right to use of all Customer Data. If Company receives any notice or claim that any Customer Data, or activities hereunder with respect to any Customer Data, may infringe or violate rights of a third party (a “Claim”), Company may (but is not required to) suspend activity hereunder with respect to that Customer and Customer will indemnify Company from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. Customer acknowledges and agrees that Customer Data may be irretrievably deleted if Customer’s account is delinquent. Notwithstanding anything to the contrary (including any confidentiality terms herein), Customer acknowledges and agrees that Company may use and modify Customer Data for the purposes of (A) providing the Services to Customer, (B) operating, improving or further developing the Services (including generating and using analytics based on the Customer Data for Company’s internal business purposes) and (C) generating Aggregated Anonymous Data (as defined below) and freely using and making available Aggregated Anonymous Data for Company’s business purposes. Customer acknowledges and agrees that it is hereby directing Company to use the Customer Data as set forth in the foregoing subsections (A) through (C). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Company in connection with Customer’s use of the Services, but only in aggregate and/or anonymized form which can in no way be linked specifically to.
4.3 Customer is solely responsible for its compliance with all applicable laws and industry standards and requirements, including all applicable laws and industry standards relating to privacy, security and personal information or personal data, in connection with its use of the Services and the implementation and configuration of its applications. Customer represents and warrants that (i) it has a lawful basis and/or right to collect and share the Customer Data as described in this Agreement, (ii) it has provided appropriate notice to its end users (including end users of Customer’s applications) that complies with any applicable law or regulation, to permit the processing of any Customer Data (including end user data) for the Services, (iii) it has provided end users with accurate disclosures of its privacy practices, and (iv) if required by applicable law, it has obtained appropriate consents to enable the collection, use and processing of any Customer Data (including end user data) by Company pursuant to the terms of this Agreement. In order to validate proper notice and consent measures have been enacted, Company reserves the right to check Customer’s application(s). In the event Customer has not complied with applicable laws or Section 4.3 under this Agreement, Customer will be in material breach of this Agreement and their account will be terminated. Customer agrees to indemnify Company from all liability, damages, settlements, attorney fees and other costs and expenses in connection with a breach of this Section 4.3, including Customer’s failure to provide appropriate notices or obtain appropriate consents in connection with its and/or Company’s use and processing of Customer Data under this Agreement.
5.1 Company provides its Services through two-tiered plans depending on Customer’s number of monthly active users (“MAU”), as described on Company’s website at www.bytebrew.io (the “Website”). If Customer falls under a certain MAU threshold described in the “Developer Tier” on the Website, Customer may use the Services free of charge. If Customer exceeds the MAU threshold as described on the Website, Customer will be “Publisher Tier” and will pay Company its then-standard fees for the Services as set forth on the Website (the “Fees”). At its sole discretion, Company may change its fee and payment structure to require payment for some or all of its Services, including changing the plan tiers and Fee amounts. Company will use commercially reasonable efforts to give advance notice to Customer of any such changes through the Customer’s account or on the Website, and in any event, Customer’s continued use of the Services shall constitute acceptance of such changes.
5.3 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Company's net income) unless Customer has provided Company with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Company on account thereof.
6.1 This Agreement shall commence on the date Customer first accesses the Services and shall continue until either party terminates this Agreement for any reason or no reason upon written notice to the other party. Notwithstanding anything to the contrary, Company reserves the right to refuse the Services and/or remove or terminate Customer from the Services at any time in its sole discretion with or without notice. Upon termination, (i) Customer’s access and rights to the Services shall immediately cease, (ii) any unpaid Fees shall become immediately due and payable, (iii) Customer must promptly delete all Company Proprietary Information, including copies of any Company technology inside any Customer application within (3) business days after the date of termination, and (iv) any historical Customer Data (including any data recorded or collected by Company from the Customer’s applications) will no longer be accessible. Any transfer or exchange of such Customer Data must be made in a written request sent to email@example.com.
6.2 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
THE SERVICES AND COMPANY PROPRIETARY INFORMATION AND ANYTHING PROVIDED BY COMPANY IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. COMPANY (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
IN NO EVENT WILL COMPANY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF COMPANY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, TWO HUNDRED DOLLARS ($200). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any 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. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Company are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Company will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Diego, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Company. Company is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.