Last updated: June 11, 2019
This SaaS Services Agreement (“Agreement”) is entered between CÔTÉ CLAIR SPRL, a company incorporated and existing under the laws of Belgium, with registered offices at Quai Paul Verlaine 2 – box 2, 6000 Charleroi, Belgium, listed in the Belgian Trade and Companies Register under n° 0556.685.968 (“Marker.io”), and the company subscribing to Marker.io’s Services (“Customer”).
The following terms, when used with a capital letter in the SaaS Agreement, shall have the following meaning:
« Authorized Users » : means all employees, consultants and other individuals authorized by the Customer entitled to benefit from the Services provided by Marker.io ;
« Defaulting Party » shall have the meaning given to it in article 12.3 ;
« Documentation » : means all documentation (text, video or any other form whatsoever) related to the Services that will be available online and describing in a full, clear and precise manner the functions and functionality of the Services, including all subsequent revisions ;
«Effective Date» : means the date on which the Customer subscribes to Marker.io’ Services;
« Equipment » : shall have the meaning given to it in article 4.4. ;
« Intellectual Property Rights » : means all the intellectual property rights, among others the trademarks, copyrights, protection for computer programs (including source codes), patents, designs and models, sui generis rights to databases, and similar rights, and any filings thereon ;
« License » : means the non-exclusive and non-transferable right to use the Software worldwide and in accordance with the SaaS Agreement,
« Maintenance Services » : shall have the meaning given to it in article 3.6 ;
« Price » : means the fixed price due by the Customer ;
« SaaS Services » : means the service accessible by internet developed by Marker.io and belonging to the latter and providing the Customer with several methods to report actionable bugs, issues and ideas into the Customer’s existing task tracking tools hosted by Marker.io and made available to the Customer on a network on a temporary basis ;
« Services » : shall have the meaning given to it in article 2 ;
« Software » : means the version of the object code of any software to which the Customer has access as part of the Services, including updates or new versions ;
« Support Services » : means the support services described in EXHIBIT I ;
« Term » : the duration for which this SaaS Agreement is concluded in accordance with the chosen subscription plan;
« Third Party Products » means the products, software or services that are not manufactured or realized by Marker.io, including, but not limited to, some of the hardware components, whether integrated or not; and
«Trial Period » : period of fifteen (15) calendar days during which Customer can have access to the SaaS Services without paying any Price.
The SaaS Agreement’s purpose is to define the terms and conditions in which Marker.io shall provide the following services to the Customer (hereinafter the « Services ») :
Marker.io’s SaaS Services make it easy for Customer to report visual bugs. Customer can use the Marker.io browser extension to capture a screenshot. Then Customer can use the built-in annotation tools to get the point across using shapes and tags. Customer can even add a descriptive title to help its team understand and prioritize a bug. Marker.io will create a detailed bug report in the Customer’s favourite task management tools such as - though not limited to - Trello, JIRA, GitHub, Slack ... The Customer’s developer can log in the management tool to check any new incoming bug and will have an immediate visual representation of the bug including the following information: screenshot, page URL, browser type, screen size and operating system.
Unless otherwise provided for in this SaaS Agreement, Marker.io shall provide the Customer with the License for the full term of the SaaS Agreement.
Only Authorized Users will be entitled to benefit from the License. The number of Authorized Users covered by the License is unlimited. However, during the Trial Period, the number of Authorized Users is set to a maximum of fifty (50) per Customer. For more information on Marker.io’s subscription plans: https://marker.io/pricing.
The Documentation provided by Marker.io must be understandable for an ordinary end user and must provide the Authorized Users with adequate instructions to become self-sufficient regarding access and use of the Services.
Marker.io undertakes to provide Support Services as described in EXHIBIT I.
Marker.io undertakes to, and the Customer undertakes to give the necessary access to Marker.io allowing the latter to, provide maintenance services. These maintenance services include bug fixing and other corrections, modifications, improvements, updates and new versions of the Software, that Marker.io deems necessary, at any time, in order to ensure that (hereinafter the « Maintenance services ») :
Unless otherwise agreed upon, Marker.io will inform the Customer, on a case-by-case basis, and within a reasonable time, of the Maintenance Services to be performed. Marker.io will have the right to immediately implement the maintenance without informing the Customer in advance. After the implementation, Marker.io will provide a summary of the Maintenance Services that it performed.
The Maintenance Services do not include preventive maintenance or repairs due to (a) software problems ; (b) modification, adjustment or repair by a person other than Marker.io or its representatives; (c) accidents, misuse or abuse of the system or a component (fire, water leakage, use of incorrect voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation or failure to follow instructions for use) that were not caused by Marker.io; (d) displacement of the system from one entity to another ; or (e) a natural event.
The Customer may not use the Services in any other way than in accordance with his/her needs and the Documentation. In particular, the License is granted for the sole purpose of enabling the Customer to use the Services.
The Customer may in no way put the Services at the disposal of a third party and strictly prohibits the usage for any other purpose than those described in Article 3.8, in particular any adaptation, modification, translation, adjustment, distribution, decompilation, without this list being limiting.
The Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or attempt in any way to discover the source code, object code or underlying structure, ideas, know-how or the algorithms related to the Services or the Software or to the Documentation or data belonging to Marker.io.
The Customer agrees not to modify, translate or create derivative works based on the Services or the Software (except as expressly permitted by Marker.io or the SaaS Agreement).
The Customer guarantees that it will only use the Services in accordance with the standards imposed by Marker.io, the purpose as reflected by this SaaS Agreement and all applicable laws and regulations. The Customer agrees to indemnify Marker.io for any and all damages, losses, liabilities, settlements and costs (including, without limitation, attorney’s fees and expenses) arising out of any claim or action from an assumed violation of the foregoing or in any other way connected to the usage of the Services by the Customer.
The Customer shall be responsible for obtaining and maintaining ancillary equipment and services required to connect to, access or use the Services, including, without limitation, modems, computer, hardware, servers, software, operating systems, networks, web servers and other (collectively, the « Equipment »). The Customer shall be responsible for maintenance and security of the Equipment, the Customer account, passwords (including, without limitation, administrative and user passwords), files and any usage of the Customer account or Equipment, with or without knowledge or consent of the Customer.
If the Customer does not comply with its obligations under this SaaS Agreement, Marker.io shall be entitled to suspend its obligations without this constituting a cancellation of the SaaS Agreement. When the Customer has executed its obligations, Marker.io will be free to continue to perform its contractual obligations without prejudice to modifications to the price or terms following this suspension.
The Price will be determined in accordance with the subscription plan chosen by the Customer. The Price will be charged immediately at the subscription by the Customer to its credit card. Payments will be processed via Stripe. The Customer will receive a confirmation email for the subscription plan. The Customer can download the corresponding invoice via his own account.
Marker.io has the right to modify the Price of its subscription plans. With respect to ongoing subscription plans, the new Price will be applicable to the Customer only in case of renewal of its subscription plan.
Customer shall not have access to the SaaS Services should it not have proceeded to the payment of the Price in accordance with Article 5.1.
Marker.io, without waiving any other right or remedy and without incurring liability to the Customer, may suspend or terminate all or part of the Services until all outstanding amounts are paid in full. Marker.io is entitled to all reasonable legal and the associated costs of recovering overdue amounts.
To be valid, any claim or refusal must be sent by email within five (5) business days of receipt of the Services. The absence of any dispute in accordance with the foregoing, implies the unconditional acceptance by the Customer of the Services provided and the corresponding invoice. The defects of a part of the delivery do not authorize the Customer to refuse the totality of the delivery.
Marker.io is and remains the owner of any property, including the Intellectual Property Rights, relating to any element of the Services implemented or developed under the SaaS Agreement.
Except as otherwise provided in the SaaS Agreement, nothing in the SaaS Agreement shall be construed as a waiver of any intellectual property of Marker.io, including the copyright, trademarks, know-how, patents and sui generis right on the databases.
The SaaS Agreement does not confer on the Customer any right of ownership over the Services. The temporary availability of the Services, including the Software, under the conditions provided for in this SaaS Agreement shall not be considered as the assignment of any Intellectual Property Rights for the benefit of the Customer.
The Customer shall refrain from reproducing any element of the Services, or any documentation concerning them, by any means whatsoever, in any form whatsoever and on any medium whatsoever.
The Customer acknowledges and agrees that for the elements of the Services that rely on an « open source » system the conditions of the respective licenses apply.
The Parties are authorized to communicate for commercial purposes on the existence of this SaaS Agreement without being authorized to disclose the economic conditions.
For the purposes of article 7.1, each Party is authorized to use in good faith the name and logo of the other Party and any material provided by the other Party in accordance with the specific instructions, if any, given by the other Party, without affecting his/her image or reputation and in accordance with the relevant trademark guidelines. For the avoidance of doubt, the Parties confirm that such authorization may not be construed as an assignment of intellectual property rights over the name, logo, material provided or otherwise.
Without prejudice to Article 8.2, each Party shall (i) keep all information it receives from the other Party confidential, and notably (ii) not disclose the confidential information of the other Party to any third party, other than employees or agents who need to know them ; and (iii) not use the confidential information of the other Party for any other purpose than to exercise its rights and to fulfil his/her obligations under the SaaS Agreement.
Notwithstanding the foregoing, no Party shall be bound by the confidentiality set forth in Article 8.1 with respect to information that (i) would have fallen or would fall into the public domain irrespective of fault by the receiving Party, (ii) would be developed independently by the receiving Party, (iii) would be known to the receiving Party before the other Party discloses it to him, (iv) would be legitimately received from a third party not submitted to an obligation of confidentiality, or (v) should be disclosed by law or by court order (in which case they shall only be disclosed to the extent required and after having notified the Party that provided it in writing.
The Parties’ obligations regarding confidential information shall remain effective for the full term of the SaaS Agreement and for so long, after the term, as the information concerned shall remain confidential to the disclosing Party and, in any event, for a period of five (5) years after termination of the SaaS Agreement.
Each party shall return all copies of documents and material containing confidential information of the other Party, as of the termination of the SaaS Agreement, whatever the cause.
The Parties undertake that these provisions are respected by their personnel and by any agent or third party who might be involved in any capacity in the framework of the SaaS Agreement.
Each Party shall ensure that any personal data communicated to or received from the other Party is treated in a manner that complies with applicable legal and regulatory data protection requirements, including those of the General Data Protection Regulation (Regulation EU of 27 April 2016, hereinafter “GDPR”) , the law of 30 July 2018 on the protection of natural persons with regard to the processing of personal data, and any future development in the applicable national and European legislation on the protection of privacy and processing of personal data.
Nothing in this SaaS Agreement and in particular in this section excludes or limits any liability that cannot be excluded under applicable law.
Except as otherwise provided, and with the exception of personal injury, Marker.io and its subcontractors (including but not limited to all suppliers of equipment and technology), directors, subsidiaries, associates, representatives, contractors and employees shall in no event be held liable in respect to any performance of the SaaS Agreement or any general terms thereof, any negligence or any other form of liability notably:
To the extent permitted by law, the total cumulative liability of Marker.io for all claims arising out of or in connection with the SaaS Agreement shall not exceed the total Price paid by the Customer during the twelve (12) months prior to the damaging act.
These limitations, exclusions and disclaimer clauses apply to all claims for damages, whether based on the agreement, the guarantee, strict liability, negligence, tort or otherwise.
The above limitations of liability, however, do not apply if the damages result directly from fraud, gross negligence or wilful misconduct by Marker.io in the performance of the SaaS Agreement or in the event of death or bodily injury caused by its negligence, or any other liability to the extent that it cannot be conventionally excluded or limited.
Marker.io shall use reasonable efforts in accordance with industry standards to ensure upkeep and maintenance of the Services in a manner that minimizes errors and interruptions of the Services and undertakes to provide the Services in a professional manner in accordance with good practice. The Services may be temporarily unavailable for maintenance in accordance with Article 3.6.
Except provided otherwise above or in the express warranties, and to the fullest extent permitted by law, Marker.io (including Marker.io's co-contractors and agents and their respective employees, directors and managers) on their own behalf or on behalf of its suppliers or licensors, makes no express or implied warranties with respect to the Services, including, but not limited to, any warranties (i) of merchantability, fitness for a particular use, performance, adequacy or non-infringement; (ii) for Third Party Products; (iii) for the performance or results to be obtained from any Service; or (iv) the Services will operate or be provided without interruption or error. Marker.io's Services are not fault-tolerant and are not designed or intended to be used in hazardous environments that require intrinsically safe performance, such as any application in which the failure of Services could directly result in death, personal injury or serious physical or material damage. Marker.io expressly disclaims any express or implied warranty of fitness for such activities.
In the event of a force majeure, the Parties may suspend performance of the SaaS Agreement and its Exhibits during the period the force majeure subsists or terminate the SaaS Agreement and its Exhibits if the force majeure persists for more than sixty (60) days, without any compensation being owed.
Each Party shall notify the other Party in writing of the particular circumstances regarding the force majeure and shall do its best to remedy the situation.
For the purposes of this SaaS Agreement, « force majeure » shall be deemed to be what is generally considered by the case law of Belgian courts in this respect, and in particular any event beyond the express will of the Parties which prevents the normal execution of the SaaS Agreement, including a total or partial strike within or outside the company, lock-outs, exceptional weather conditions, epidemics, blocking distribution or stocking for any reason, earthquake, fire, storm, flood, water damage, freezing of computer systems or telecommunication, theft, ….
The SaaS Agreement is concluded for the Term as indicated in the subscription plan chosen by the Customer.
At the end of the Term, the SaaS Agreement will be tacitly renewed for successive periods which -based on the subscription plan chosen initially - can be either of twelve (12) months (if yearly billing) or one (1) month (if monthly billing), unless it is terminated by one of the Parties, in writing no later than one (1) month before the expiry date of the initial term or its successive renewals.
Should Customer subscribe to a Trial Period, the SaaS Agreement will automatically expire at the end of the Trial Period unless Customer subscribed to a subscription plan and proceeded to the payment of the due Price in accordance with Article 5.
Each Party shall have the right to terminate this SaaS Agreement at any time, without notice or indemnity, by giving written notice to the other Party (the " Defaulting Part y") on the date following date of dispatch of the notification, in the event of a serious default by the Defaulting Party to one of its obligations under the SaaS Agreement, provided that that Party has failed to remedy that default within thirty (30) calendar days following the date of its formal notice by registered letter.
Marker.io may terminate the SaaS Agreement at any time without prior notice or indemnity, by sending a notice to the Customer in the event of a payment not in accordance with Article 5 of the SaaS Agreement. In such cases, the resolution shall have immediate effect on the day following the date of dispatch of Marker.io’s notice.
Early termination of the SaaS Agreement, for any reason whatsoever, shall automatically entitle Marker.io to terminate immediately, with immediate effect, any other contract binding upon the Parties at the time of termination – including, but not limited to, any contract of development, assignment, integration and maintenance – without any costs or indemnities on its part and without prejudice to the right of Marker.io to claim any possible damages.
As from the expiration of the SaaS Agreement or its effective termination, regardless of the cause, the Customer will no longer have access to the Software in any form whatsoever.
The SaaS Agreement and its Exhibits contain all the obligations of the Parties, in relation to their scope, and shall supersede all previous contracts and agreements, both written and oral, in relation to this subject .
If one or more provisions of the SaaS Agreement and its Exhibits are declared void, unlawful or unenforceable, this shall not result in the nullity of the entire SaaS Agreement and its Exhibits. The Parties shall replace such provision(s) with a provision that best reflects the content and intent of the provision(s).
Any change or modification of any provision of the SaaS Agreement and/or its Exhibits shall not be valid, unless made in writing and signed by both Parties.
Any notice in execution or in connection with the SaaS Agreement and its Exhibits shall be deemed to be validly brought to the attention of the other Party if it has been sent to the address mentioned in the preamble to the SaaS Agreement (or any other address communicated in writing), by hand, by registered mail, by mail, by fax or by email with acknowledgment of receipt.
The Customer may not assign this SaaS Agreement or sublicense the Software in any way, including by merging, de-merging, or capital contribution, except as expressly authorized beforehand in writing by Marker.io.
Marker.io may resort to subcontracting. The use of subcontracting shall in no way reduce Marker.io’s liability towards the Customer under the SaaS Agreement, Marker.io remains the Customer’s guarantee for the proper performance of the SaaS Agreement.
This SaaS Agreement and its Exhibits are subject to Belgian law.
Marker.io and the Customer will attempt to resolve any dispute relating to the validity, interpretation, performance and/or termination of the SaaS Agreement and its Exhibits by negotiation or by using a mediator agreed by the parties, rather than by litigation. The negotiations and mediations will be treated as confidential. If the Parties are unable to reach a solution within 30 days of the notification of the dispute to the other Party, the dispute will be submitted to the exclusive jurisdiction of the judicial arrondissement Hainaut, department of Charleroi.
Marker.io will provide the Customer with Support Services by telephone and email from Monday to Friday, excluding Belgian public holidays, from 9:00 am to 5:00 pm (GMT+1) (the « Support Hours »).
The Customer may contact Marker.io during the Support Hours via email at the following email address: email@example.com
Guaranteed response time: 7 working days after receipt of the request.
Marker.io will use its efforts to make technical resolution as soon as possible, provided that this does not in any way bind Markerio.io to solve the problem.
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