This bitegarden Marketplace Partner Agreement (this “Agreement”) is a binding agreement between bitegarden Solutions SL (ESB40612251) (“bitegarden”, “we” or “us”) and the individual or entity registering as a vendor or partner in the bitegarden Marketplace (“Marketplace Vendor” or “you”). If you are an individual using the bitegarden Marketplace on behalf of your company, organization or other entity (for example, as an employee), then “you” means your entity and you are binding your entity to this Agreement.
Under this Agreement, you appoint and authorize bitegarden, as your commercial agent, to promote, sell, test and distribute Marketplace Apps (as defined below) on the terms and conditions of this Agreement, and bitegarden accepts such appointment. Before clicking to agree to this Agreement, please carefully read the terms and conditions below. The bitegarden Marketplace is not intended for and may not be used by anyone under the age of 16.
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by (i) checking the box (or similar action) to accept the Agreement that is presented to you at the time you sign up to list your products on the bitegarden Marketplace or (ii) by submitting any Marketplace App to the bitegarden Marketplace.
bitegarden may modify this Agreement from time to time, subject to the terms in Section 18 (Agreement Changes) below.
The bitegarden Marketplace is a forum for connecting partners who make Apps for SonarQube™ products with potential end users. Apps can be written using the Sonar Developer Extensions and can be written for use with Sonar’s downloaded server or cloud products. As a vendor, you may charge a fee for your Apps and designate whether end users may order your Apps through bitegarden’s ordering and license management system (in which case revenue sharing will apply). You may also offer your Apps free of charge under certain circumstances.
2.1. “bitegarden Marketplace” or “Marketplace” means marketplace.bitegarden.com or any other webpage, application, interface, service or in-product experience at which bitegarden makes available or lists Apps and any other location that allows for the discovery, download or purchase or Apps (such as bitegarden’s Universal Plugin Manager).
2.2 “bitegarden Marks” means the trademarks, trade names, service marks and logos owned or otherwise used by bitegarden. Nothing contained herein shall grant you any ownership right in the bitegarden Marks, Sonar Marks or any other bitegarden or Sonar intellectual property.
2.3. “Sonar Platform” means Sonar's developer platform, including their APIs, API keys, CLIs, sample code, access tokens, SDKs and other tools. See Sonar developer documentation
2.4. “bitegarden Platform” means bitegarden's developer platform, including our APIs, API keys, CLIs, sample code, access tokens, SDKs and other tools.
2.5. “End User Data” means any data, content or information of an end user that is accessed, collected or otherwise processed by you or your App in connection with use of the bitegarden Marketplace.
2.6. “End User Privacy Policy” means a legally adequate privacy policy provided to each end user from whom you or your App collects, accesses, or otherwise processes End User Data.
2.7. “End User Terms” means a legally adequate agreement governing end user use of your Apps.
2.8. “Marketplace Apps” or “Apps” or “Plugins” means cloud and downloadable applications, plug-ins or extensions that are designed to interoperate with Sonar’s own software and cloud offerings (through use of the Sonar Platform) and that you deliver to Sonar or make available through the Marketplace, as further described in Section 3.1 (Types of Apps). “Apps” also include any New Versions of existing Apps.
2.9. “Marketplace Guidelines” means the terms, rules and policies that bitegarden makes available at https://www.bitegarden.com/marketplace/ and other bitegarden web properties describing the Marketplace, which set forth certain requirements (as may be modified by bitegarden from time to time) for including your Marketplace Apps in the bitegarden Marketplace. Our marketplace brand guidelines are part of the Marketplace Guidelines and are located here.
2.10. “New Versions” means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your Apps.
2.11. “Vendor Portal” means the online platform made accessible to Marketplace Vendor by bitegarden on which bitegarden from time to time will communicate program details and changes, and provide sales tools and services, to Marketplace Vendor. The URL of the portal is: https://marketplace.bitegarden.com/ (as amended from time to time by bitegarden). You can access the Vendor Portal by registering into the Marketplace and creating a Vendor.
2.12. “Revenue Share” means the revenue based on the Marketplace Vendor’s Sale as displayed at the applicable Revenue Share page on the Vendor Portal at the time of the Sale in accordance with Section 4.2 (Revenue Share) below.
2.13. “Security Incident” means any actual or suspected (a) unauthorized access, acquisition, use, disclosure, modification, loss or destruction of End User Data in the possession or control of you or your agents or contractors (whether intentional or accidental), (b) security vulnerability or compromise of your App or (c) issue involving your App that materially degrades Sonar systems or networks.
2.14. “Similar Service” means, in relation to Paid-via-bitegarden Apps, any online distribution service or channel (other than the bitegarden Marketplace) that makes such Apps available for sale, use or download to end users and/or channel vendors, including any website or other distribution method operated by you.
3.1. Types of Apps. Currently, the bitegarden Marketplace allows you to offer the following types of listings for Marketplace Apps. You designate your listing type using your vendor account on the bitegarden Marketplace (subject to approval by bitegarden), based on the options below:
Server Apps
Apps that are downloadable by end users from the bitegarden Marketplace and designed to run in end user instances of Sonar products behind the end user’s firewall. Server Apps include any “SonarQube™ Community” or “SonarQube™ Server” deployments of your Apps
Cloud Apps
Apps that are designed to be used with Sonar’s hosted services, such as SonarQube Cloud offerings. Since Sonar's Cloud architecture doesn't include capabilities for extensions points, these Apps will be stand-alone applications running and hosted the end-user or by the Marketplace Vendor.
3.2. Listing Options: Free and Paid
Free Apps
Apps that you provide free of charge, which may be downloaded from the bitegarden Marketplace or from your external website, in all cases under circumstances specified by bitegarden. Free Apps may be either Server or Cloud Apps.
Paid-via-bitegarden Apps
Apps for which end users pay all fees to bitegarden (with Marketplace Vendor receiving a Revenue Share as described in this Agreement, and bitegarden receiving the Revenue Share from end users as Marketplace Vendor’s commercial agent.) Paid-via-bitegarden Apps may be either Server or Cloud Apps. You must use bitegarden’s licensing mechanisms (see Section 6.4 regarding the Migration API) for all Paid-via-bitegarden Apps. For Paid-via-bitegarden Apps end users will receive license keys from bitegarden.
This Section 4 (Financial Terms) shall only apply to Paid-via-bitegarden Apps.
(a) Generally. Subject to the remainder of this Section 4 and the other terms of this Agreement, you have discretion to set the commercial pricing for initial sales, licenses or subscriptions to your Paid-via-bitegarden Apps (the “List Prices”), all in accordance with bitegarden standard formulas and policies. “Sale” includes any initial or renewal sale, subscription or license of a Paid-via-bitegarden App (or related content or services) through the bitegarden Marketplace, including any Follow-on Sales.
(b) Marketplace Discount Programs. Notwithstanding Section 4.1(a), if you are participating in our Marketplace Discount Programs, eligible end users may purchase your Paid-via-bitegarden App at the applicable discount to the List Price as described in our Marketplace Discount Programs page. Certain Marketplace Discount Programs apply automatically and are required for all Apps as described on such page.
(c) Similar Services. You agree that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable pricing for the Paid-via-bitegarden App (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which you make such Paid-via-bitegarden App available for sale through any Similar Service. You will update the List Price for each Paid-via-bitegarden App as necessary to ensure that it meets the requirements of this Section 4.1(c).
Subject to this Agreement, for each Sale, except as otherwise expressly agreed by bitegarden in writing, bitegarden will pay you the applicable Revenue Share for the Sale. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which bitegarden has received final payment from or on behalf of an end user. If an App is sold to an end user using a credit card, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. The current Revenue Share pages may be amended from time to time by bitegarden. Any changes or updates to the Revenue Share will be effective 30 days after notice.
Unless otherwise specified in the Marketplace Guidelines, you will designate your List Price in Euros (€) and bitegarden will make all Revenue Share payments to you in Euros. In certain non-European countries, bitegarden may, in its discretion, list your Apps and make Sales to end users in currencies other than Euros. In this case, your Euros denominated Revenue Share payment may fluctuate, and bitegarden will make the applicable currency conversions for your Revenue Share payment in accordance with documentation on the Marketplace website and communications to you.
Subject to the terms of this Agreement (including the remainder of this Section 4), approximately thirty (30) days after the end of the calendar month in which the applicable Sale is made, bitegarden will pay you the Revenue Share due to you and provide you with a report that gives further information about your Sales of your Paid-via-bitegarden Apps. You agree to provide bitegarden with information on a valid bank account in your name, and bitegarden will make payments to that account via Electronic Funds Transfer (“EFT”). bitegarden is entitled to accrue and withhold payments, without interest, until the total amount due to you (net of any tax withholding, as further described below) is at least 500 € (or equivalent). You agree that any fees charged by your bank in connection with wire transfers pursuant to this Section 4.4 are solely your responsibility.
bitegarden may issue refunds of the applicable Sale amount (or portions thereof) to end users or bitegarden Vendors in its sole discretion. If bitegarden issues a refund prior to paying you the Revenue Share for the applicable Sale, then you agree and acknowledge that you will not receive and will have no right to receive a Revenue Share on that portion of the Sale amount that was refunded. In addition, if bitegarden pays you a Revenue Share on a Sale and later issues a refund or credit to the end user for such Sale (or receives a chargeback related to the Sale), bitegarden may offset the amount of the Revenue Share that bitegarden previously paid you against future Revenue Share or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to bitegarden. bitegarden may also withhold and offset sums you owe to bitegarden against amounts that are payable to you. When this Agreement terminates, bitegarden may withhold all Revenue Share due for a period of sixty (60) days from the date they would otherwise be payable, in order to ensure bitegarden’s ability to offset any end user refunds or make any other offsets to which bitegarden is entitled.
bitegarden shall only use your banking and payment information for purposes related to this Section 4 (Financial Terms). bitegarden shall not disclose your sales and related financial data to third parties except agents and contractors acting on bitegarden’s behalf and except as required by Laws. The foregoing sentence notwithstanding, bitegarden may use or disclose aggregated sales and other financial data related to the bitegarden Marketplace, which may include your sales and related financial data but does not identify you or your data specifically.
bitegarden is responsible for collecting and remitting any taxes imposed on sales of Paid-via-bitegarden Apps to end users. You are responsible for any income or other taxes due and payable resulting from bitegarden’s payments to you. Accordingly, unless otherwise stated, the amounts due to you hereunder are exclusive of any taxes that may apply to such payments. bitegarden maintains the right to deduct or withhold any applicable taxes payable by you from amounts due from bitegarden, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you. For vendors in Spain, if you do not provide bitegarden with your CIF/VAT number, then bitegarden has the right to withhold the top applicable tax rate from its Revenue Share payments to you.
(a) Apps and Product Information. You will deliver Marketplace Apps to bitegarden on or prior to the initial availability date you designate for the Marketplace App (the “Initial Availability Date”). Together with delivery of each Marketplace App, you will also provide the following information and materials: (a) Marketplace App title, Initial Availability Date, category, Marketplace Vendor name, List Prices (if applicable), product description, icon, logo or banner images, security and privacy information, and any other information related to the Marketplace Apps that bitegarden requires; (b) the metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with you or a particular Marketplace App that you wish to appear in connection with your App; and (c) your End User Terms and End User Privacy Policy ((a)-(c), collectively, “Product Information”). Together, the Marketplace Apps and Product Information are “Content”.
You are responsible for providing accurate Product Information. If any Product Information is inaccurate or needs to be updated or modified, you will promptly provide bitegarden with corrections, updates, or modifications.
You will ensure that all Content complies with this Agreement, including bitegarden’s Marketplace Guidelines (which are hereby incorporated into this Agreement). However, this Agreement will control in the event of any direct conflict with the Marketplace Guidelines or any additional policies included or referenced in the Marketplace Guidelines. In your activities under this Agreement, you also agree to comply with the bitegarden Marketplace Acceptable Use Policy ( as may be modified from time to time by bitegarden) (the “AUP”).
You hereby grant bitegarden, during the Term (and thereafter in accordance with Section 11 (Term and Termination)), the nonexclusive, royalty-free (subject to payment of any applicable Revenue Share), worldwide right and license:
(a) to resell, distribute or make available (including via download), as applicable, the Marketplace Apps through the bitegarden Marketplace to end users by all means of electronic distribution available now or in the future, except that this subsection (a) shall not apply to (i) Paid-via-Vendor Apps that you choose to make available for download directly from your website instead of from bitegarden or (ii) Free Apps available for download only from your own website;
(b) to use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information (and any such excerpts) in any and all digital and other formats for promotional purposes in connection with (i) the bitegarden Marketplace and (ii) listings for your Apps;
(c) otherwise to use, store, copy and distribute your Content (i) for testing and evaluation (including scanning for Viruses, as defined in Section 12.6) conducted by bitegarden and its third party vendors; (ii) for purposes of exercising bitegarden’s rights and fulfilling bitegarden’s obligations hereunder; and (iii) for purposes of enforcing this Agreement and the Marketplace Guidelines;
(d) to use your Apps for bitegarden’s own business purposes internally, within the scope for which the App’s use is reasonably intended (“Internal Use License”). The Internal Use License applies to both Cloud Apps and Server Apps.
The licenses granted to bitegarden in Section 5.4: (i) include rights to distribute, promote and make available New Versions to eligible end users, (ii) include the right, as described in Section 11 (Term and Termination), to continue to retain and make available Apps and Product Information to existing end users after the Term, and (iii) are granted under all applicable intellectual property rights (including patent rights).
You, not bitegarden, license your Apps to end users, and you must provide your own End User Terms and End User Privacy Policy with any Marketplace App. Your End User Terms and End User Privacy Policy must comply with, and be consistent with, the terms and conditions of this Agreement, including Section 8.4 (End User Data and Privacy-Related Obligations). You agree that bitegarden does not and will not have any responsibility or liability related to compliance or non-compliance by you or any end user under the applicable End User Terms or End User Privacy Policy.
6.1. Delivery Commitment. You will deliver electronically to bitegarden (and continue to make available during the Term) all versions of Apps for which you have the rights required under this Agreement. You will deliver any New Versions to the Marketplace Apps, together with any related Product Information, as soon as they are available. For Paid-via-bitegarden Apps, you must deliver to bitegarden all of the same versions and editions of such App (including New Versions) that you or your affiliates make available directly or indirectly through any Similar Service, by no later than the first date you permit the corresponding version or edition to be listed for sale on any Similar Service.
6.2. End User Support. You will use commercially reasonable efforts to provide telephone, web-based and/or email support to the end users for your Marketplace Apps during normal business hours (except in the case of Free Apps, where you must provide the support you promise to end users). You will provide to bitegarden a current email address to which bitegarden may direct inquiries from end users regarding your Marketplace Apps. You are solely responsible for providing all support for your Marketplace Apps, and for providing to end users of your Marketplace Apps all information necessary for their use of your Marketplace Apps. At a minimum you agree to respond within 24 hours to any support request that bitegarden identifies as critical, and in all other cases within five business days of request from an end user or bitegarden.
As between you and us, you retain all right, title and interest in and to Content that you deliver to us, excluding the bitegarden Platform and Sonar Platform or other bitegarden technology or materials used or included in the Content. Subject to your foregoing rights in the Content, bitegarden retains all right, title and interest in and to the bitegarden Marketplace, bitegarden Platform, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any bitegarden code or technology used in connection with the bitegarden Marketplace, including the bitegarden or Sonar Platform. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of bitegarden or of any end user or other third party. You agree not to make any representations, guarantees or warranties (1) that violate any laws or regulations, including any false advertising or consumer protection laws, (2) with respect to bitegarden, the bitegarden Marketplace, or bitegarden’s product or services, or (3) by bitegarden or on behalf of bitegarden, including with respect to handling of Security Incidents. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue bitegarden or the Marketplace.
8.2. Review of Marketplace Apps by You. The bitegarden Marketplace allows you to post reviews of Marketplace Apps offered by other vendors. Any review by you of a Marketplace App shall be made in good faith after reasonable evaluation of the full Marketplace App. You (including your employees and others acting on your behalf) may not review or comment on your own App or those of competitors. As an exception, you may provide informational responses to support requests or other inquiries directed to you within the reviews or comments section of your App. All reviews must comply with bitegarden’s AUP, and bitegarden (in its discretion) may take down reviews or block reviewers in event of a violation of the AUP.
8.3. bitegarden Marketplace Operations. bitegarden maintains sole discretion to determine all features and operations of the bitegarden Marketplace. You acknowledge that bitegarden has no obligation to promote, distribute, list or offer for Sale any Marketplace App, or to continue to do so. With respect to Paid-via-bitegarden Apps only, bitegarden is responsible for and has sole discretion related to processing payments, collecting payments, addressing requests for refunds, and providing customer service related to its obligations, and, for clarity, all Sales through the bitegarden Marketplace will be processed by bitegarden’s payment systems and will be subject to the Revenue Share terms above. bitegarden will have sole ownership and control of all Sales and other data bitegarden obtains from end users in connection with the bitegarden Marketplace, but will make available certain End User Data (as defined below) to you, subject to Section 8.4.
8.4. End User Data and Privacy‐Related Obligations.
(a) End User Data. An end user may enable you or your Apps to access End User Data. Based on the activities under this Agreement, the Sonar platform where the Apps run may provide you with access to End User Data.
(b) Collection and Use. You must obtain all necessary rights, permissions, and consents from end users for your access, collection, storage, transmission, treatment, use, disclosure, sharing, and other processing of any End User Data, and will ensure that all such processing complies with your End User Terms, End User Privacy Policy, and all Laws. If you retrieve End User Data directly from Sonar (e.g., end user information or code) via Sonar-provided APIs, portals or other similar means, you must limit your access and processing of such information to that (a) authorized by the end user or (b) necessary for the purposes of providing the functionality of your App. You may not sell any End User Data. bitegarden shall not be liable for, or have any responsibility in connection with, End User Data processed by you or your App, and such activities with regard to End User Data are not in any way by or on behalf of bitegarden.
(c) End User Communications. You may use End User Data to communicate directly with end users only where required by Law or as consented to or requested by the end user. But you may not send marketing messages to end users within any user experience integrated with bitegarden Products without bitegarden’s express written consent.
(d) End User Terms. You must ensure end users agree to your End User Terms, which must comply with all Laws and clearly describe how the platform quotas and limits for Forge Apps or any other applicable usage limits may impact an end user’s use of your Apps.
(e) End User Privacy Policy. You must provide a clear, complete, and conspicuous End User Privacy Policy that notifies end users (1) how you access, collect and process End User Data, (2) with whom you share End User Data, (3) in which country or countries the End User Data will be stored and (4) that you (not bitegarden) are responsible for your processing of End User Data, along with other disclosures required by Laws. You must comply with the terms and conditions of your End User Privacy Policy, and promptly notify end users and bitegarden of any material changes to it.
(f) Security. You must use industry-standard security measures appropriate for all End User Data and your processing activities, adequate to preserve End User Data’s confidentiality and security and comply with all Laws. You will also comply with any security, coding practices, authentication, encryption, or other requirements for Apps in the Security Requirements. You agree to remediate all security vulnerabilities identified to you by bitegarden within the timeframes described in the Security Requirements.
(g) Security Incidents. Upon discovery or notice of any Security Incident, unless prohibited by Laws, you will promptly (within 24 hours) notify bitegarden via the ticket creation link at support portal. Your notice will provide bitegarden information about the Security Incident and how it may affect bitegarden or Sonar Products, end users or End User Data, and you agree to provide further information and assistance related to the Security Incident described in the Marketplace Guidelines or as bitegarden may request. Without limiting your other obligations, in event of a Security Incident, you will be solely responsible, at your own expense, for investigation, remediation and your own notifications to affected end users and regulatory authorities in accordance with Laws and industry standards. However, you must obtain bitegarden’s approval for any breach notifications to end users that refer directly or indirectly to bitegarden. You must ensure that you have an updated contact name and contact information in your developer account for Security Incidents. Without limiting any other reserved rights of termination or suspension, bitegarden may de-list your App from the bitegarden Marketplace or suspend use of or access of your App to Sonar products as a result of any Security Incident.
(h) Security and Privacy Review. bitegarden, or an authorized third party selected by us, may conduct a security or privacy review of any App or its supporting infrastructure to ensure compliance with (i) your obligations under Section 8.4 or (ii) security and privacy related sections of the Marketplace Guidelines. Security and privacy reviews may include, without limitation: information requests to you, reviews of your documentation, interviews, security testing, technical testing and reviews, code reviews and scans (which may reverse engineer binary code), event logging, network testing, and vulnerability threat assessments. In addition, bitegarden reserves the right to request that you provide the source code for your App, but solely for the purpose of bitegarden conducting security and/or privacy tests. You agree to reasonably and promptly cooperate with such requests and reviews of your App and/or your App’s supporting infrastructure (in the case of Cloud Apps). bitegarden (itself or through third parties) may conduct new or additional App security scans beyond those described in this Section 8.4(h), in which case bitegarden will provide you at least 15 days prior notice and you may choose to opt-out of such scan with notice to bitegarden.
8.5. Export Controls and Economic Sanctions. You acknowledge that you develop and offer Apps through bitegarden via its Marketplace, and therefore you agree to strictly comply with all E.U. export controls and economic sanctions laws and regulations in connection with these activities. You also acknowledge that bitegarden and others may lawfully rely on your determination of your Marketplace App’s export control status. Thus, you hereby represent, warrant, and certify that: (1) your Marketplace Apps are authorized for export from the E.U. and re-export to each country to which you permit them to be distributed or made available through the bitegarden Marketplace; and (2) either (i) the Marketplace Apps do not contain, use or support any data encryption or cryptographic functions (“Encryption Technology”) and have Export Control Classification Number (“ECCN”) EAR99 or (ii) you have qualified each Marketplace App containing, using or supporting Encryption Technology for export as a “mass market encryption item” having ECCN 5D992 in accordance with 15 C.F.R Part 742.15(b)(2), as an item eligible for License Exception ENC pursuant to 15 C.F.R Part 740.17(b)(1) having ECCN 5D002, or as an EAR99 item and will, upon request, provide bitegarden with a copy of the applicable self-classification report or mass market export classification ruling (CCATS), if applicable, issued by the United States Commerce Department, Bureau of Industry and Security. You further agree to comply with any and all ongoing export-control and reporting obligations, if applicable, related to any of your Marketplace Apps. You agree to indemnify bitegarden of any claim brought against bitegarden for violation of any export-controls or economic sanctions law or regulation related to your Marketplace Apps. You represent, warrant, and certify to bitegarden that you will comply with all applicable export control and economic sanctions laws and regulations.
8.6. Feedback. Providing feedback, comments or suggestions about the bitegarden Marketplace (“Feedback”) to bitegarden is wholly voluntary. bitegarden may freely use Feedback for any purpose.
8.7. Aggregated Information. In addition to bitegarden’s other rights, bitegarden may collect aggregated information regarding the bitegarden Marketplace and Marketplace Apps (excluding any personally identifiable information). We will not provide information to any third party about Marketplace Apps, or end users purchasing Marketplace Apps, except as necessary for us to perform our obligations under this Agreement.
8.8. App Programs. bitegarden may offers certain programs under which (i) Marketplace Vendors may self-certify or (ii) bitegarden may approve that Marketplace Vendors, or their Apps, meet certain standards for end user adoption, support, security and/or other criteria (“App Programs”).
(a) To participate in an App Program, you must complete an application, provide any additional information requested by bitegarden. You represent and warrant that all information you provide to bitegarden will be accurate and complete. bitegarden may disclose such information to end users and other third parties in connection with administering the App Programs and the Marketplace.
(b) bitegarden may decide in its sole discretion whether to approve a Marketplace Vendor for an App Program. If a Marketplace Vendor is approved, bitegarden may authorize the Marketplace Vendor to use the related badge or other related marketing assets. Participation in any App Program, including use of badges and marketing assets, is subject to the policies specified by bitegarden from time to time. You understand that bitegarden may flag, revoke or downgrade any Marketplace Vendor certification, approval or badge at any time based on end user complaints, Marketplace Vendor’s failure to meet App Program standards, Marketplace Vendor’s failure to comply with bitegarden policies or the Marketplace Guidelines, or otherwise in bitegarden’s discretion. Further, bitegarden may rebrand, modify or discontinue any App Program, badges or related marketing assets at any time.
(c) App Programs are designed to assist Marketplace Vendors in communicating certain standards and business practices to end users of Apps, and bitegarden administers the App Programs only as a convenience for Marketplace Vendors and end users. Marketplace Vendor remains solely responsible for its Apps and their quality, sufficiency, security and support, notwithstanding bitegarden’s approval, if granted, for a Marketplace Vendor to participate in an App Program or use any badge. Without limiting its obligations in Section 8.1 or elsewhere in this Agreement, in no event will you state or imply that bitegarden endorses, sponsors or guarantees your Apps.
bitegarden may determine in its sole discretion to make available or list any Marketplace App through the bitegarden Marketplace, or to remove any App from the bitegarden Marketplace. bitegarden may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect end users. Inclusion of a Marketplace App in the bitegarden Marketplace does not relieve you of responsibility to ensure the Marketplace App complies with this Agreement or to perform other obligations under this Agreement.
Marketplace Apps can be written or developed using the Sonar Platform (as described in the Sonar documentation), and the development of Apps is subject to the separate Sonar Developer Terms if any (including any product-specific terms incorporated therein). The Developer Terms govern your use of the Sonar Platform and the creation and operation of Apps (or “Add-ons” or "Plugins") generally, while this Agreement contains terms specific to the Marketplace and any Apps you choose to submit to the Marketplace. Nothing in this Agreement changes the Sonar Developer Terms (including any referenced policies or API call limits) or limits any of Sonar’s rights, and you and your Apps must continue to comply with the Sonar Developer Terms. However, in the event of a direct conflict between this Agreement and the Sonar Developer Terms, this Agreement will govern with respect to activities on the Marketplace.
11.1. Term. The term of this Agreement (the “Term”) will begin on the date you agree to it in the manner set forth in the third paragraph of this Agreement and will continue until you or bitegarden terminates it.
11.2. Termination Rights
(a) Either bitegarden or you are entitled to terminate (i) this Agreement, in its entirety or with respect to particular Apps, and (ii) access to your account with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (1) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (2) the party breaches its confidentiality or privacy related obligations under this Agreement, or (3) infringes or misappropriates the terminating party’s intellectual property rights.
(b) Notwithstanding anything to the contrary in this Agreement, immediately upon notice to you (or with the notice specified by bitegarden at the time), bitegarden may also terminate this Agreement (and/or terminate or suspend either your account on the Marketplace or this Agreement with respect to any particular Apps) under the following circumstances: (i) bitegarden ceases to operate the Marketplace, (ii) you violate bitegarden’s AUP, (iii) Sonar suspends or terminates the Sonar Developer Terms as relates to you or your App(s), or (iv) bitegarden determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to bitegarden or any third party or otherwise harm the Marketplace or other Marketplace vendors or users.
11.3 Effect of Termination; Transition
(a) Pending Orders; Transition Period. Following any termination or expiration of this Agreement or withdrawal of your App from the Marketplace, (i) in bitegarden's discretion, bitegarden may continue to fulfill any end user orders for Apps pending as of the date the termination takes effect, and (ii) bitegarden will use reasonable efforts to take down the listing for your App within forty-five (45) days after the effective date of termination (or, if specified by bitegarden, within the same period after notice of termination) (the “Transition Period”). bitegarden may also retain copies of your Content after termination or expiration of this Agreement, or withdrawal of your App, for its own record-keeping purposes.
(b) End User Rights. Unless otherwise specified by bitegarden, all end user licenses and subscriptions to Apps (including any related support or maintenance periods) will survive termination or expiration of this Agreement in accordance with the applicable End User Terms. As such, bitegarden may continue to make available any Apps for further access, downloads or re-downloads by existing end users of those Apps for the duration of their applicable license, subscription or maintenance term (including after the Transition Period) (the “Surviving Term”), directly.
(c) Your Transition Obligations. If you are a Marketplace Vendor of Paid-via-bitegarden Apps, then prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible for doing the following, consistent with bitegarden’s guidance and instructions:
(1) for Cloud Apps, making the App (including any New Versions) available to bitegarden and Marketplace users on an stand-alone basis at least until the conclusion of any Surviving Terms for all end users who have purchased such Apps;
(2) taking all actions necessary to move existing end users with Surviving Terms to your non-bitegarden license mechanism, including, as applicable: (i) providing an equivalent product that integrates to Sonar applications without the use of bitegarden, (ii) contacting end users and providing access, installation and migration instructions, and equivalent license terms and key, and/or (iii) providing end users with data migration tools and migration assistance;
(3) arranging to provide for ongoing support and maintenance (including New Versions) with respect to your Apps for all end users who have purchased such rights for the duration of the term for which you have committed to provide such support and maintenance; and
(4) communicating such matters accurately and in a positive and professional manner to end users.
For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated App to bitegarden for distribution under this Agreement thereafter, but bitegarden’s post-termination rights in this Section 11.3 will apply for the latest version of the App you provided to bitegarden hereunder (and any prior version).
You represent, warrant and covenant that:
12.1. You are at least 18 years of age and are able to form a legally binding contract. If Marketplace Vendor is a business or other legal entity and not an individual, then the individual entering into this Agreement on Marketplace Vendor’s behalf represents that he or she has all necessary legal authority to bind Marketplace Vendor to this Agreement;
12.2. You have the full right, power, and authority to enter into and fully perform this Agreement;
12.3. Before providing bitegarden any Content or listing Content in the bitegarden Marketplace, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to end users in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;
12.4. None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;
12.5. You will immediately notify bitegarden if you lose any IP rights related to your Marketplace Apps or become aware of a third party claim related to these rights;
12.6. Your Content will not contain any viruses, spyware, “Trojan horses,” or other “malware” or harmful code (“Viruses”), and will not cause injury to any person or damage to any property; and
12.7. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of your End User Terms) based on your use of third party “open source” software or other third party intellectual property in any App. You will also promptly make available to bitegarden, end users and any other third party that is entitled to it, the source code corresponding to any App or portion thereof if required, and in the manner required, by applicable third party terms and conditions. bitegarden’s use (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.
13.1. By bitegarden. Subject to the terms and conditions of this Agreement: (1) bitegarden shall defend a Marketplace Vendor of a Paid-via-bitegarden App from claims by third parties alleging that the bitegarden Marketplace itself, when used in connection with such App, infringes such third party’s United States, European Union, or EU member state registered copyright or trademark and (2) bitegarden shall pay damages finally awarded by a court of competent jurisdiction against such Marketplace Vendor for such a claim or, if bitegarden settles the claim, the settlement amounts. bitegarden’s obligations in this Section 13.1 apply only to the bitegarden Marketplace itself and not to any Marketplace Apps, the Sonar Platform, other bitegarden products or services, or other third party content hosted on or used with the bitegarden Marketplace, and in any case bitegarden’s obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the bitegarden Marketplace. As a condition to bitegarden’s obligations under this Section 13.1, you must provide bitegarden (i) prompt written notice of the claim (and in any event notice in sufficient time for bitegarden to respond without prejudice), (ii) the exclusive right to control and direct the investigation, settlement and defense (if applicable) of the claim, and (iii) all reasonable necessary cooperation. This Section 13.1 sets forth bitegarden’s sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
13.2. By You. You will indemnify, defend and hold harmless bitegarden and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) arising out of any third party claim relating to (i) any Content or the use of Content (including any claims made by or arising from end users), (ii) your breach or alleged breach of this Agreement, or (iii) any Security Incidents caused by your Apps or third party services supporting your Apps (individually, a “Claim,” and collectively, the “Claims”). In any defense or settlement negotiations, you will keep bitegarden apprised of all relevant developments, including the choice of counsel. bitegarden may participate in the defense or settlement of any Claim at its own expense. You will provide bitegarden with reasonable notice of any judgment entered against bitegarden or any settlement terms offered to settle a Claim and you will not consent to the entry of a judgment or settle a Claim without bitegarden’s prior written consent, which we may not unreasonably withhold. If you do not promptly assume and reasonably conduct the defense of a Claim or take reasonable action to settle any such Claim after being provided with sufficient reasonable advance notice to evaluate the Claim, then bitegarden may take control of the defense (without limiting your indemnification obligations). Your obligations under this Section 13.2 are independent of your other obligations under the Agreement.
14.1. Definition. All information disclosed by bitegarden that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is “Confidential Information”. Confidential Information includes non-public aspects of the bitegarden Marketplace and bitegarden’s applications; non-public aspects of third-party applications listed in the bitegarden Marketplace to which you obtain access as a result of the relationship between you and bitegarden under this Agreement; non-public End User Data provided to you by bitegarden; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and bitegarden under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to you before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to bitegarden or anyone else.
14.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide bitegarden with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at bitegarden’s cost, if bitegarden wishes to contest the disclosure.
14.3. Injunctive Relief. In event of actual or threatened breach of this Section 14, bitegarden shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
bitegarden develops its own products and services and works with many other partners and developers, and either bitegarden or these third parties could in the future develop (or already have developed) products, concepts or ideas similar to yours or your Apps. Subject to bitegarden’s obligations relating to your financial data in Section 4.6 and App source code in Section 8.4(h) and the terms of any applicable mutually-agreed non-disclosure agreement, nothing limits bitegarden or such third parties from doing so, and bitegarden has no confidentiality obligations for information you submit in connection with this Agreement.
You will not violate bitegarden intellectual property in any form, including bitegarden patents, trademarks, copyrights, and trade secrets. You will: (i) only use the bitegarden Marks in the form and manner as set forth in bitegarden’s Trademark Guidelines, Marketplace Brand Guidelines and AdWords Trademark Policy and only in connection with the sale of your Marketplace Apps in the bitegarden Marketplace (if any conflict, real or perceived, arises in the foregoing Guidelines, bitegarden retains the right to enforce the more restrictive Guideline); (ii) follow any other policies that bitegarden communicates to you regarding the use of bitegarden Marks as keywords in online search engines; (iii) not register any domain names that contain any terms that are the same or similar to any bitegarden Marks; and (iv) upon expiration or termination of this Agreement for any reason, immediately cease all use of the bitegarden Marks, unless you are otherwise authorized to continue using the bitegarden Marks pursuant to a separate written agreement with bitegarden.
17.1. Disclaimer of Warranties. THE BITEGARDEN MARKETPLACE, BITEGARDEN MARKS AND BITEGARDEN PLATFORM ARE PROVIDED “AS IS” AND BITEGARDEN EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
17.2. Limitations of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 ABOVE, FOR MARKETPLACE VENDOR’S BREACH OF SECTION 8.1 (PROHIBITED ACTIONS; RESPONSIBILITIES), SECTION 8.4 (END USER DATA AND PRIVACY-RELATED OBLIGATIONS) OR SECTION 14 (CONFIDENTIALITY): (A) NEITHER YOU NOR BITEGARDEN SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER YOUR OR BITEGARDEN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE BITEGARDEN MARKETPLACE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED BITEGARDEN’S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, “BITEGARDEN’S MARGIN” MEANS THE AMOUNTS RECEIVED BY BITEGARDEN FROM SALES OF YOUR APPS, MINUS THE REVENUE SHARE BITEGARDEN HAS PAID YOU.
17.3. Basis of Bargain; Failure of Essential Purpose.The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties. The parties further agree that all such limitations, disclaimer and other provisions will survive and apply even if any limited remedy is found to have failed of its essential purpose.
As the bitegarden Marketplace evolves over time, we may need to update this Agreement. Therefore, bitegarden reserves the right to change this Agreement at any time in its sole discretion with the changes to the Agreement becoming effective thirty (30) days after notice (unless bitegarden specifies a shorter notice period). bitegarden will give you notice of the changes by posting an updated version of this Agreement on its website or within the Marketplace, or by emailing you at an email address you have provided. If you do not agree to any of the changes, your sole remedy is to terminate this Agreement prior to the date on which the changes are to take effect by (i) providing written notice to bitegarden and (ii) withdrawing all of your Apps from the Marketplace. If you terminate this Agreement according to the preceding sentence, the changes will not apply to you. Otherwise, your continued participation in the bitegarden Marketplace after the changes take effect will constitute your acceptance of the changes. In addition, you may be required to click to agree to the modified Agreement to continue participating in the Marketplace.
19.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 19.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 19.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
19.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of Spain, without giving effect to the principles of that country relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of Spain, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Spain, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
19.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 19.1 (Informal Resolution) and 19.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent bitegarden from seeking injunctive relief with respect to a violation of intellectual property rights, any Incident or other security issue, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
19.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.
This Agreement may not be amended except in writing signed by both parties or as provided in Section 18 (Agreement Changes) above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word “including” will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors, not agents, joint venturers or partners, despite use of the term “Vendor” or “Partner”. Each party will bear its own costs and expenses in performing this Agreement. bitegarden’s failure to enforce any provision of this Agreement will not constitute a waiver of bitegarden’s rights to subsequently enforce the provision. bitegarden may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that bitegarden’s affiliates, contractors and service providers may exercise all rights of bitegarden under this Agreement, including bitegarden’s license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without bitegarden’s prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give bitegarden written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that bitegarden determines that such assignment is to a competitor of bitegarden, bitegarden may terminate this Agreement upon notice to you. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by bitegarden via email, via a posting in the Marketplace Guidelines, via the Marketplace Portal, or (ii) by you via email to legal@bitegarden.com or to such other email or physical addresses as bitegarden may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.