Updated 6 July 2023
The DebugBear website monitoring service "Service" is made available by DebugBear Ltd ("DebugBear").
Before you ("you" or "Company") use the Service please read all of the terms and conditions set out in these terms of service ("agreement").
By using any part of the Service you agree (on behalf of yourself and/or your Company) to this agreement and this agreement shall take legal effect between You and DebugBear on the date you start to use the Service ("Start Date").
By using this Service, you declare that you are 16 years or over.
Agreed terms1.1 The definitions and rules of interpretation in this clause apply in this agreement.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. Use of the word "including" shall mean including "without limitation."
1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.4 A reference to writing or written excludes fax but not email.
2.1 Subject to the Company purchasing the Subscriptions DebugBear grants to the Company a non-exclusive, non-transferable revocable right and licence, without the right to grant sublicences, to permit the use of the Service during the Subscription Term solely for the Company's internal business operations.
2.2 The Company shall not access, store, distribute or transmit any Viruses, or any material during its use of the Service that:
(a) is unlawful, harmful, threatening, defamatory, obscene,
infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) promotes unlawful violence;
(d) is discriminatory based on race, gender, colour, religious
belief, sexual orientation, disability; or
(e) is otherwise illegal or causes damage or injury to any person or
property;
and DebugBear reserves the right, without liability to the Company
or prejudice to its other rights, to disable the Company's access to
any material that breaches the provisions of this clause.
2.3 The Company shall not:
(a) except as may be allowed by any applicable law which is
incapable of exclusion by agreement between the parties:
(i) attempt to copy, modify, duplicate, create
derivative works from, frame, mirror, republish, download, display,
transmit, or distribute all or any portion of the Service, any
Software and/or Documentation (as applicable) in any form or media
or by any means; or
(ii) attempt to de-compile, reverse compile,
disassemble, reverse engineer or otherwise reduce to
human-perceivable form all or any part of the Service or the
Software; or
(b) access all or any part of the Service and Documentation in order
to build a product or service which competes with the Service or any
Services and/or the Documentation; or
(c) attempt to obtain, or assist third parties in obtaining, access
to the Service, other than as provided under this clause 2; or
(d) introduce or permit the introduction of any Virus into
DebugBear's network or the DebugBear Portal.
2.4 The Company shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and in the event of any such unauthorised access or use, promptly notify DebugBear.
2.5 The rights provided under this clause 2 are granted to the Company only and shall not be considered granted to any subsidiary or holding company of the Company.
3.1 The Company may, from time to time during the Subscription Term, purchase additional Subscriptions in excess of the number at the Start Date and DebugBear shall grant access to the Service for such additional tests in accordance with the provisions of this agreement upon payment of the additional fees chargeable for such extra Subscriptions.
4.1 DebugBear shall, during the Subscription Term, provide the Service(s) to the Company on and subject to the terms of this agreement.
4.2 DebugBear shall use commercially reasonable endeavours to make the Service available except for:
(a) planned maintenance carried out during the maintenance window
notified by DebugBear on the DebugBear Portal; and
(b) unscheduled emergency.
5.1 DebugBear is granted access to Company Data and any other data comprising the relevant website for the purposes only of:
(a) providing general or technical support in the use of the
Service;
(b) ensuring quality of service; and/or
(c) undertaking analyses, creating metrics and examining the
performance of the Service to facilitate improvements to the
functionality of the Services provided.
DebugBear makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any third-party website whilst using the Service, or any transactions completed, and any contract entered into by the Company, with any such third party.
7.1 DebugBear warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7.2 DebugBear:
(a) does not warrant that:
(i) the Company's use of the Service will be
uninterrupted or error-free; or
(ii) that the Service or the information obtained by
the Company through the Service will meet its requirements.
(b) is not responsible for any delays, delivery failures, or any
other loss or damage resulting from the transfer of data over
communications networks and facilities, including the internet, and
the Company acknowledges that the Service may be subject to
limitations, delays and other problems inherent in the use of such
communications facilities.
7.3 THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. DEBUGBEAR DOES NOT WARRANT THAT THE USE OF THE SERVICES WILL NOT INFRINGE ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. DEBUGBEAR DOES NOT MAKE ANY WARRANTY OTHER THAN EXPRESSLY STATED ABOVE INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING NOR DOES DEBUGBEAR OWE YOU ANYTHING BY WAY OF DAMAGESS IF DEBUGBEAR REMOVES THE SERVICES.
7.4 This agreement is non-exclusive.
8.1 The Company shall:
(a) provide DebugBear with:
(i) all necessary co-operation in relation to this
agreement; and
(ii) all necessary access to such information as may be
required by DebugBear;
in order to provide the Service, including Company Data, security
access information and configuration services;
(b) without affecting its other obligations under this agreement,
comply with all applicable laws and regulations with respect to its
activities under this agreement;
(c) shall be responsible for any of its users breaching this
agreement.
8.2 The Company shall own all right, title and interest in and to all of the Company Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Company Data.
9.1 The Company shall pay the Subscription Fees to DebugBear for the Subscriptions in accordance with this clause 9.
9.2 The Company shall on the Start Date provide to DebugBear valid, up-to-date and complete contact and billing details. When the Company provides:
(a) its credit card details to DebugBear, the Company hereby
authorises DebugBear to bill such credit card:
(i) on the Start Date for the Subscription Fees payable
in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, on each anniversary of the
Start Date for the Subscription Fees payable in respect of the next
Renewal Period;
(b) makes a request for any payment method other than by credit
card, DebugBear will provide the Company with details of the
additional charges and pricing plan which alternative payment
methods attract.
9.3 If DebugBear has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of DebugBear:
(a) DebugBear may, without liability to the Company, disable the
Company's password, account and access to all or part of the Service
and DebugBear shall be under no obligation to provide the Service
while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an
annual rate equal to 3% over the then current base lending rate of
DebugBear's bankers in the UK from time to time, commencing on the
due date and continuing until fully paid, whether before or after
judgment.
9.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in in the currency in which DebugBear's invoice
is provided;
(b) are, subject to clause 13.3(b), non-cancellable and
non-refundable;
(c) are exclusive of value added tax, which shall be added to
DebugBear's invoice(s) at the appropriate rate.
9.5 DebugBear shall be entitled to increase the Subscription Fees, at the start of each Renewal Period upon two months prior notice to the Company.
10.1 The Company acknowledges and agrees that DebugBear and/or its licensors own all intellectual property rights in the Service and the Documentation. Except as expressly stated herein, this agreement does not grant the Company any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service or the Documentation. For the purposes of this clause 10 "intellectual property rights" shall mean patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, including the right to sue for and recover damages for past infringements.
11.1 Confidential Information: Each party shall keep in strict confidence:
(a) all technical and commercial know-how, specifications,
inventions, processes or initiatives which have been disclosed to
the other by employees, agents and consultants of the disclosing
party; and
(b) any other confidential information concerning the other party's
business, products which may be obtained and which is marked as
confidential ("Confidential Information"),
11.2 The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a
result of its disclosure by the receiving party in breach of this
clause);
(b) was available to the receiving party on a non-confidential basis
before disclosure by the disclosing party;
(c) may require disclosure to comply with applicable laws, a court
order or any government or regulatory authority.
11.3 DebugBear shall for marketing or publicity purposes only, be entitled to use the Company's logos, designations and marks on its website indicating that the Company is a customer of DebugBear.
12.1 For the purposes of this clause, Data Protection Legislation means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
12.2 Each party will comply with all applicable requirements of the Data Protection Legislation. In particular, where the Company intends to use the Service for a website that contains personal data, then the Company shall ensure that it has a legitimate basis for the use of such personal data.
13.1 Except as expressly and specifically provided in this agreement:
(a) the Company has sole responsibility for results obtained from
the use of the Service and the Documentation by the Company, and for
conclusions drawn from such use. DebugBear shall have no liability
for any damage caused by errors or omissions in any information,
instructions or scripts provided to DebugBear by the Company in
connection with the Service, or any actions taken by DebugBear at
the Company's direction;
(b) all warranties, representations, conditions and all other terms
of any kind whatsoever implied by statute or common law are, to the
fullest extent permitted by applicable law, excluded from this
agreement; and
(c) the Service and the Documentation are provided to the Company on
an "as is" basis.
13.2 Nothing in this agreement excludes the liability of DebugBear:
(a) for death or personal injury caused by DebugBear's negligence;
or
(b) for fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
(a) DebugBear shall not be liable whether in tort (including for
negligence or breach of statutory duty), contract,
misrepresentation, restitution or otherwise for any loss of profits,
loss of business, depletion of goodwill and/or similar losses or
loss or corruption of data or information, or pure economic loss, or
for any special, indirect or consequential loss, costs, damages,
charges or expenses however arising under this agreement; and
(b) DebugBear's total aggregate liability in contract tort
(including negligence or breach of statutory duty),
misrepresentation, restitution or otherwise, arising in connection
with the performance or contemplated performance of this agreement
shall be limited to the total Subscription Fees paid during the
twelve-month period immediately preceding the date on which the
claim arose.
14.1 Subject to clause 14.2, this agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Start Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 1 month (if monthly subscription plan) or 12 months if annual subscription plan, as applicable (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in
writing, at least 14 days before the end of the Initial Subscription
Term or any Renewal Period, in which case this agreement shall
terminate upon the expiry of the applicable Initial Subscription
Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this
agreement;
and the Initial Subscription Term together with any subsequent
Renewal Periods shall constitute the Subscription Term.
14.2 If you make any use of the free trial period offered by DebugBear, then once the trial period has been completed, for the purposes of this agreement, the "Start Date" shall become the day after the free trial period has ended and you or anyone in your Company continues to use the Service.
14.3 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement
on the due date for payment and remains in default not less than 21
days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of
this agreement and (if such breach is remediable) fails to remedy
that breach within a period of 21 days after being notified in
writing to do so;
(c) the other party goes into administration or suffers an event of
insolvency or a petition is filed for the winding up of the affected
party;
(d) the other party suspends or ceases, or threatens to suspend or
cease, carrying on all or a substantial part of its business;
(e) any event occurs, or proceeding is taken, with respect to the
other party in any jurisdiction to which it is subject that has an
effect equivalent or similar to any of the events mentioned under
sub-clauses (c) - (d) above.
14.4 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately
terminate and the Company shall immediately cease all use of the
Service;
(b) DebugBear may destroy or otherwise dispose of any of the Company
Data in its possession; and
(c) any rights, remedies, obligations or liabilities of the parties
that have accrued up to the date of termination, including the right
to claim damages in respect of any breach of the agreement which
existed at or before the date of termination shall not be affected
or prejudiced.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 30 days written notice to the affected party.
If there is an inconsistency between any of the provisions of this agreement and any DebugBear conditions on the DebugBear website, the provisions of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and agreed by the authorised representative of each party. For the avoidance of doubt "in writing" includes email.
A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
Both parties acknowledge that in entering into this agreement neither party has relied on any statement, representation, assurance or warranty other than expressly included in this agreement.
DebugBear may assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
24.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) sent by email to the addresses on the DebugBear Portal; or
(b) delivered by hand or by pre-paid first-class post or other next
working day delivery service at its registered office (if a
company).
24.2 Any notice shall be deemed to have been received:
(a) if sent by email, at the time of transmission, or, if this time
falls outside Business Hours in the place of receipt, when Business
Hours resume
(b) if delivered by hand, at the time the notice is left at the
proper address;
(c) if sent by pre-paid first-class post or other next working day
delivery service, at 9.00 am on the second Business Day after
posting.
This agreement and any dispute or claim arising out of it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim.
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