Updated: February 8, 2021
The following Terms of Service ( "ToS") govern your relationship ( "Customer" or "You") with Bearer Inc. ("Bearer"), a DELAWARE CORPORATION with registered office at 251 Little Falls Drive, Wilmington, DE 19808, USA.
Bearer provides Services aimed at managing the risks related to Your Components Data Processing Activities. Bearer Services are subject to these ToS.
By signing up with Bearer, you irrevocably agree to be bound by this ToS. You shall not use the Services if You do not accept the provisions of this ToS. Bearer may update these ToS from time to time. When non-material changes are made to the ToS, the most current version of the ToS will be posted on Site. You agree to regularly check the Site to view the then-current ToS. In such case, Your continued use of the Services constitutes Your acceptance of such change. Furthermore, any material or non-material change of the ToS will be automatically applicable for Customers who register to use the Services after such change. However, if Bearer makes any material changes to the ToS when You have already registered to use the Services at the date of such material change(s), You will be noticed by email of such change and You will be required to provide consent to the updated version of the ToS before further use of the Services. If You do not agree to such change(s) after receiving a notice of such change(s), the Services will be automatically terminated and You shall stop using the Services.
”Account” means the customer account You have created on the Site, which allows You to access the Services.
”Affiliate” means any Person which controls, is controlled by, or is under common control with a Party.
”Authorized Users” mean users authorized by the Customer to access and use the Platform, the Software and the Services, which may include - without limitation of the number of users - Customer's employees, Affiliates, Affiliates' employees and any third parties, subject to the compliance with the provisions of these ToS and the limitations set forth in the applicable Plan.
”APIs” means the APIs that You expose and/or consume within your source code.
”Component” means any Customer information technology system able to process data. It specifically includes applications, APIs, API Gateways, and databases.
”Component Data” means any data processed by a Component.
”Component Data Processing Activity” means any operation or set of operations which is performed on Component Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
”Confidential Information” means any information of a confidential nature that is communicated by the disclosing Party to the receiving Party or accessed by the receiving Party, communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and/or any information that by its form, nature, content or mode of transmission would, to a reasonable recipient, be deemed confidential or proprietary, including, without limitation, the Agent(s), the Universal API Client(s), the Software and the Documentation.
”Customer Data” means the information, Personal Data, materials, records, and documents, including Confidential Information, regarding or pertaining to the Customer available in Customer Properties. It specifically includes the API data that goes through the Platform.
”Customer Properties” or ”Properties” means the Components on which You use the Services, which are owned by You.
“Dashboard” means the interface accessible on the Site developed, provided, and hosted by Bearer, which enables You and Your Authorized Users to access Your customer profile, to monitor the Services on Your Properties, and to view and modify Your Properties settings.
”Documentation” means the most current version of Bearer online documentation and/or guidelines published and made generally available on the Site.
”Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design rights, Documentation, blog content, copyrights, trademarks, Bearer marks, corporate name and trade names, domain name rights, mask work rights, drawings and designs, semiconductor topographies, database rights, domain names, know-how, and other trade secret rights, and all other intellectual property rights, derivatives thereof, in each case whether applied for or not, registered or not, with all the priority rights attached thereto, divisions, continuations, continuations-in-part, renewals, re-issuances and extensions of the foregoing (as applicable) now existing or hereafter filed, issued or acquired, relating to any creations, and all other forms of equivalent protection of creations in force anywhere in the world.
“Order Form” means the signed form between the Parties referencing these Terms.
”Party” means either You, the Customer, or Bearer.
”Person” means a partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, or other entity.
”Personal Data” means any information relating to an identified or identifiable person as defined by applicable data protection legislation, being understood that in any case an identifiable natural person shall refer at least to a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, including coded or pseudonymous data as long as long it is possible from the use of such data to reattribute data to an identified or identifiable individual as defined above.
”Platform” means the infrastructure provided and managed by Bearer, which enables You and Your Authorized Users to manage the risks related to Your Components Data Processing Activities using our Software.
”Services” means the services provided by Bearer under these ToS as further described at www.bearer.sh, including, the Software, the Platform, and the Dashboard.
”Site” means the website www.bearer.sh or any related website.
”Software” except solely with respect to open source software Bearer makes available ("Open Source Software") means all of Bearer's proprietary technology (including software, hardware, products, processes, patents, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information, protected or not by Intellectual Property Rights) that Bearer may make available to You from time to time in accordance with the ToS.
”Term” is defined in section 5.1.
”Users of Customer Properties” or "Properties' Users" means users handled by Customer Properties on which the Services are used.
In order to use the Services, You must register on the Site and create an Account. To complete the registration process, You need to enter Your name, Your email address and create a password (the "Account Information")..
The Account Information is personal and may only be used by You and/or Your Authorized Users. You and Your Authorized Users shall maintain the confidentiality of the Account Information and shall be solely responsible for all activities that occur under Your Account Information. You shall notify Bearer immediately of any unauthorized use or loss of any Account Information or any other breach of security with respect to Your use and the Authorized Users' use of the Services. Bearer may suspend Your access to the Services or terminate Your Account at any time if Bearer reasonably believes that such Account is being misused, used by an unauthorized user, if You create several Accounts to use the Services in a way to bypass the payment of the applicable fees, or if You have materially breached these ToS. Customer shall indemnify and hold Bearer harmless of any improper or unauthorized use of the Services resulting from any act or omission of Customer or Authorized User.
Bearer allows You to manage security, business and compliance risks related to Your Components Data Processing Activities. In particular, Bearer collects data that is useful to catalog Components and map data flows to and from Your Components.
To the extent, Bearer processes any Customer Personal Data (as defined in any Data Processing Agreement signed with Customer, hereafter: the "DPA") contained in Customer Data on behalf of Customer, the terms of the DPA, which are incorporated herein by reference, will apply and the Parties agree to comply with such terms.
Bearer offers a variety of Services plans: "Starter", "Business” and “Enterprise” plans (the "Plans"). Specific Service features are granted according to the selected plan.
If included in the Plan subscribed to by Customer, Bearer will use reasonable efforts to provide Support for the Bearer Platform, Software, and Services during the Term.
Customer undertakes to actively collaborate on a regular basis with Bearer for the Agreement to be properly executed. In order to deliver the Services in a timely and accurate manner, Bearer may need to rely on Customer for access to certain Customer hardware, software, systems, personnel and Customer Data. Customer agrees to communicate to Bearer all the existing documents and information in its possession reasonably requested by Bearer for proper execution of the Services.
Bearer retains the property rights over its pre-existing works (including the Intellectual Property Rights), as well as of all or part of its materials, information, tools, methods, systems, equipment, hardware and software, documentation, data, databases, files of all types, made available to the Client within the framework of this Agreement, whether or not the latter are used by Bearer. Consequently, Customer will only have a right of access and use, strictly limited to the performance of these ToS as described in Article 4.3, for the elements made available by Bearer for the performance of these ToS.
For the avoidance of doubt, except as expressly provided in this Agreement, Your access and use to the Services does not convey any rights (including Intellectual Property Rights) or ownership, either express or implied, in all or part of (a) the Services; (b) the Platform and the Software; (c) the Site; or (d) the Dashboard or (e) any related Documentation.
You exclusively own all rights, title, and interest in and to all Customer Data which may include Customer Personal Data. You have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of, and obtaining permissions for all Customer Data. You will make sure that no sensitive data, such as personal health or financial information, is submitted to Bearer. You hereby grant to Bearer a, non-exclusive, limited, non-transferable right, during the Term (including during any Trial Period), to store, host, reproduce and maintain Your Customer Data solely for purposes of making the Services available to You and increasing the performance of the Services. Customer Data shall be considered to be Confidential Information under the ToS. Customer acknowledges and agrees that Bearer's subcontractors may have access to Customer Data in connection with the performance of these ToS.
Subject to Your compliance with this Agreement and Your payment of the applicable fees, Bearer grants You and Your Authorized Users for the Term of the applicable Plan and solely for Customer's internal business purposes, a limited, non-transferable, non-sublicensable, non-exclusive right to (i) use the Platform to monitor your Components Data Processing Activities; (ii) access and use the Dashboard; (iii) access and reproduce the Documentation exclusively for the purposes of using the Services, Platform, Dashboard and the Software. This license should be strictly construed. It is understood that any use exceeding the license granted above will be deemed a breach of the ToS. Any rights not expressly granted in this Agreement are expressly reserved by Bearer and/or its licensors.
Any usage of Bearer for Customer’s external business purposes, including but not only; (i) providing Bearer technology to non-Bearer Customers, (ii) exposing services offering similarities with Bearer; (iii) reselling Bearer’s technology, is strictly forbidden by this license. If you wish to provide such service, an OEM license is required and shall be provided at the sole discretion of Bearer.
To the maximum extent permitted by law, Customer agrees that it will not modify, rent, lease, distribute, resell, prepare derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Software and/or the Dashboard, any object code generated by the Services or any part thereof, or otherwise attempt to discover any source code, modify the Software in any manner or form, or use unauthorized or modified versions of the Software, including (without limitation) for the purposes of building a similar or competitive product or Services (or contract with a third party to do so) or obtaining unauthorized access to the Services. In addition, You may not access or use the Services for any benchmarking or competitive purposes. You may not use the Services with any software, program, computer code, object code other than the Software provided or agreed in writing by Bearer. You may not remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software.
Bearer will defend You against any claims made by a third party that the Platform, Dashboard, Software (exclusive of Open Source Software) or Services (exclusive of Open Source Software) delivered under these ToS infringes a third-party Intellectual Property Rights, and will pay all costs, damages, and expenses (including reasonable legal fees) finally awarded against You by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Bearer arising out of such claim, provided (i) You provide Bearer with prompt written notice of the claim, and (ii) You gives Bearer sole control of the defense of the claim and any related settlement discussions and provides reasonable cooperation in the defense and settlement of the claim.
If such a claim is made, or in Bearer's reasonable opinion any element of the Services is likely to become the subject of such a claim, Bearer may at its expense, either secure the right for You to continue using the Services concerned, modify it so that it is not infringing, or replace it with another program which is functionally equivalent. If none of the foregoing options is available on terms which are reasonable in Bearer's judgment, Bearer may terminate the Services and refund all prepaid but unused Fees paid hereunder for the affected Services.
Bearer shall have no obligation to defend or indemnify You against any claim related to (i) any modification of a Service by anybody other than Bearer, or (ii) the use of one or more of the Services in combination with other hardware, data or programs not specified by Bearer. This section states the entire liability of Bearer and Your exclusive remedy for any claim of infringement of Intellectual Property Rights.
These ToS will commence on the date You accept the ToS and will remain in force until You terminate Your Plan or the ToS in accordance with the conditions set out in this section.
You may terminate the ToS at any time during a Trial Period and under any non-paid plan by providing notice to the other Party. Otherwise, Your ToS will renew automatically every month if You have subscribed to a monthly plan or every year if You have subscribed to a yearly plan (each, a “Renewal Term”), unless You give Bearer notice of Your intention not to renew at least thirty (30) days before the Renewal Term. The renewal charge will be equal to the fee in effect at the time of the renewal.
Bearer reserves the right to suspend or cease providing the Services or any portion of the Services, at any time, if Bearer encounters any problems charging Your payment card, if You are not complying with these ToS, or if you use the Services in any way that could cause us legal liability or disrupt others’ use of the Services. In this case, Bearer will try to let you know in advance.
You or Bearer may terminate these ToS for cause (a) upon 30 days’ written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period or (b) if, to the extent permitted by applicable laws, the other party (i) becomes the subject of a proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (ii) goes out of business or (iii) ceases its operations. In such case, the ToS and any related Services will be terminated as of right, notwithstanding any other remedy that the affected Party may seek for damages.
Termination will have no effect on Customer’s obligation to pay for any Services rendered prior to the effective date of termination. Sections 4.4, 6, 7, 8, 9 will survive for 10 years from any expiry or termination of these ToS.
Upon the termination of these ToS, including after a Trial Period, Customer will cease all use of the Platform, the Software, the Dashboard and the Services and Bearer will disable all portions of the Platform, the Software, the Dashboard and the Services for which Customer’s usage rights have been terminated or which have expired.
The fees ( "Fee(s)") applicable to each of the paid-Plans are available on the Order Form communicated to You by email. Customer hereby agrees to pay the then-current Fees applicable at the Effective Date to the paid-Plans selected by the Customer for the provision of the Services.
If, during the Term, You purchase Services for additional Properties, the fee for the added Properties will be Bearer’s then-current subscription fee and will be charged on a prorated basis. You will pay all Fees applicable to the Services You selected to receive from Bearer. You authorize Bearer to charge You using your selected payment method, for all applicable Fees.
All fees are payable immediately upon invoicing by Bearer.
Prices are exclusive of sales and use, or other similar tax and fees, which shall be separately stated on invoices. You are responsible for all tax obligations arising from Your actions.
In addition to Bearer’s right to terminate the ToS if You fail to pay any applicable Fee, for any payment that is not paid within 30 days after the date of the applicable invoice, Bearer may require Customer to pay interest at the rate of 1.5% per month or the highest legally permissible rate, whichever is lower, on all amounts not paid when due until such amounts are paid in full.
Subject to Customer’s compliance with the ToS and payment of all applicable Fees, Bearer represents and warrants that: the Services will be performed materially in accordance with the applicable Documentation.
However, Bearer will have no obligations to You under this Section 7.1: if You: do not properly maintain all associated equipment, software, Internet access, and environmental conditions in accordance with these ToS, the Documentation and applicable industry standards; do not use software or equipment that is capable of supporting the Software and the Services; introduce other equipment or software creating an adverse impact on the Services. in case of defaults caused by You, Your Authorized Users or any other person operating under Your control.
To the maximum extent permitted by applicable law: the foregoing warranties are in lieu of and exclude all other warranties, representations or conditions for the Services, whether express or implied. Moreover, Bearer disclaims all liability and does not warrant that i) Services will meet Your requirements or will enable it to attain the objectives You have set for yourself, (ii) Services will operate in the combination or environment selected for use by You (iii) the operation of Services will be uninterrupted, accurate, complete or error-free or (iv) the use of the Services prevents You from all and any security breach or hack. While using the Services, You understand and agree that You should continue to use a reasonable degree of care when managing Your Properties to protect them against security threats, including (without limitation) by avoiding to download any obviously malicious applications. You agree that the Services may be subject to limitations, delays, errors and other problems inherent to the use of the internet and electronic communications. Bearer is not responsible for any delays, delivery failures, or other damage resulting from such problems. In all instances, You shall be solely responsible for ensuring that the results produced by the Services comply with quality and safety requirements of Your products or services.
Furthermore, during any Trial Period or under any non-paid Plan, Your use of the Services is on an “as is”basis and You agree that Bearer provides no warranties or indemnities of any kind arising out of such use.
You represent and warrant that: You are able to form a legally binding contract and, if You are entering into these ToS on a company’s behalf, You have all necessary legal authority to bind Customer to these ToS; Your Customer Data will not contain any viruses, spyware, “Trojan horses,” or other “malware” or harmful code or data, and will not cause injury to any person or damage to any property, including Bearer’s Software and Services; You have and will maintain all rights necessary to grant to Bearer the rights granted in these ToS, and by providing Your Customer Data to Bearer in accordance with the ToS, You will not violate any Intellectual Property Rights of third parties, confidential relationships, contractual obligations or laws.
If it is established that Bearer has breached the warranty described in Section 7.1, Bearer may, at its option, (i) use reasonable efforts to cure the defect in the Services; (ii) replace the Services with Services that materially conform to the specifications in the Documentation or in the SLA; (iii) in the event Bearer cannot, after commercially practicable attempts to do so, achieve the remedies in (i) or (ii), Customer may terminate the subscription to the Services and Bearer will provide a refund of pre-paid, unused Fees calculated on a prorated basis as of the effective date of such termination. Customer must report the alleged breach of warranty with reasonable specificity in writing within thirty (30) days of its occurrence to benefit from this warranty and the remedies stated herein. The above warranty remedies are Bearer’s sole obligation and Customer’s sole and exclusive remedy for breach of the above warranty.
You agree to indemnify and hold Bearer, its Affiliates, officers, agents, employees, resellers or other partners and licensors harmless from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to Your Customer Data, or the use thereof, including but not limited to allegations that any processing of Your Data by Bearer and/or You under these ToS violates any applicable law or regulation, or infringes the privacy or Intellectual Property Rights of a third party, Your use of the Services in violation of these ToS and applicable laws or regulations, Your violation of these terms, or Your violation of any law, provided (i) Bearer provides You with prompt written notice of the claim, and (ii) Bearer provides reasonable cooperation in the defense and settlement of the claim.
To the maximum extent permitted by applicable law, bearer will in no event be liable for any indirect damages, including but not limited to loss of data or content, loss of profits, or other special, incidental, consequential, exemplary or reliance damages arising from or in relation to the tos or the services, however caused. In no event will Bearer’s liability hereunder exceeds the amount of fees effectively paid by customer to Bearer under the paid-plan concerned for the twelve-month period preceding such claim. In addition, to the maximum extent permitted by applicable law and except as regards article 4.5 of these tos, bearer shall have no liability in respect of, any and all claims for any direct and indirect damages, for any reason and on any basis, arising from or in relation to the services provided to the customer in the course of a non paid plan during a trial period.
Parties agree that when receiving or accessing Confidential Information from the disclosing Party, that the receiving Party shall hold it in confidence and shall not disclose or use such information except as expressly permitted under the ToS. The receiving Party shall maintain the disclosing Party’s Confidential Information in confidence in compliance with the terms of these ToS and in the same manner as it treats its own proprietary and/or confidential information, which shall not be less than a reasonable standard of care, and the receiving Party shall use Confidential Information only for the purposes described in the ToS. Confidential Information may be disclosed to receiving Party’s employees, financial advisors, contractors and attorneys (the “Authorized Third Parties”) only if they have a need-to know about it for the purposes described in these ToS. Before doing so, the receiving Party shall ensure that the Authorized Third Parties are required to protect the Confidential Information on terms consistent with these TCS and accept responsibility for each Authorized Third Party’s use of Confidential Information.
The receiving Party shall be permitted to disclose Confidential Information in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law, regulation or court order, provided that the receiving Party shall, where reasonably possible, give the disclosing Party prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of the disclosing Party to obtain a protective order. For the purposes of these ToS, Confidential Information shall exclude: (i) information which the receiving Party has been authorized in writing by the disclosing Party to disclose without restriction; (ii) information which the receiving Party can prove was rightfully in its possession or rightfully known to it prior to receipt of such information from the disclosing Party; (iii) information which was rightfully disclosed to the receiving Party by a third party without any breach of confidentiality obligations by the third party or the receiving Party; (iv) information which is part of or enters the public domain without any breach of the obligations of confidentiality by the receiving Party; and (v) information which the receiving Party can prove was independently developed without use or reference to the disclosing Party’s Confidential Information. Nothing in the ToS will (i) preclude Bearer from using the ideas, concepts and know-how which are developed in the course of providing the Services to You or (ii) be deemed to limit Bearer’s rights to provide similar Services to other customers. You agree that Bearer may use any feedback You provide in relation to any Services for any business purpose, without requiring Your consent. The receiving Party agrees, upon request of the disclosing Party, to return to the disclosing Party all Confidential Information in its possession or certify the destruction thereof. The confidentiality obligation contained herein shall survive the termination of the ToS for five (5) years.
You remain at all times the data controller of Your Personal Data and the Personal Data of Your Properties’ Users. Bearer is processing Your Personal Data and the Personal Data of Your Properties’ Users only on behalf of You and in compliance with Your instructions for the sole purpose of the performance of the Services. Bearer warrants that it has implemented adequate technical and organizational security measures designed to protect the security, integrity and confidentiality of the Customer Data and the Personal Data of Your Properties’ Users in accordance with applicable law.
The Parties expressly agree that the relationship between them is that of customer-independent contractor. Nothing contained in these ToS will be construed or implied to create an agency, partnership or joint venture between the Parties.
In case of a Force Majeure Event temporarily preventing a Party from performing its obligations, both Parties’ performance of their obligations will be suspended without any liability incurred on either part.
Should the Force Majeure Event last longer than thirty (30) consecutive days, and/or should the Force Majeure Event prevent a Party from performing its obligations permanently, either Party shall be entitled to terminate the ToS by sending notice (in accordance with Section 11) to the other.
For the purpose of this Section, the term “Force Majeure” means any event that was beyond the Party’s reasonable control, including, for example, an act of God, natural disaster, act of war or terrorism, riot or civil arrest, labor conditions, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services.
Bearer may give notice to You by posting a message on Your Dashboard or sending an electronic mail to Your e-mail address on record in Your Account.
You may give notice to Bearer by email sent to email@example.com or by mail sent at Bearer address.
Customer consents to Bearer’s use of Customer’s name and logo and general description of Customer’s relationship with Bearer in press releases and other marketing materials and appearances. Customer further permits Bearer to use it as a reference account for marketing purposes and agrees, from time to time, to support Bearer by participating in reference phone call(s) and other marketing events including with press, analysts, and Bearer’s existing or potential investors or customers upon reasonable request by Bearer.
The Agreement should be governed by and construed in accordance with the laws of the State of Delaware. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any dispute arising from or relating to these ToS will be submitted to the exclusive jurisdiction of the competent courts of the State of Delaware.
However, You and Bearer will attempt to resolve any dispute arising hereunder through amicable negotiation with persons fully authorized to resolve the dispute or through mediation using a mediator agreed to by the Parties, rather than through litigation.
These ToS, the Order Form and any Service-Level and Data Processing Agreement that you have entered into with a Bearer entity contain the entire agreement between the Parties with respect to the Services and supersede all other oral or written representations, statements, or agreements with respect to such subject matter.
You may not assign or otherwise transfer these ToS without the prior written consent of Bearer, which consent will not be unreasonably withheld or denied, and any attempt to assign any rights, duties or obligations which arise under these ToS without such consent shall be null and void. However, You may, without Bearer’s consent, assign this Agreement to any Person or entity that is acquiring all or substantially all of Your assets or which is a successor by merger, consolidation, acquisition of stock or assets, or other business combination, other than by a direct competitor of Bearer. Bearer hereby already consents to such assignment, which shall as of principle take effect upon Customer notifying the assignment to Bearer.
If any provision of these ToS is held to be invalid or unenforceable by arbitration or a court of competent jurisdiction, then the remaining provisions of these ToS will remain in full force and effect. Such invalid or unenforceable provision will be severed from these ToS with the remaining terms of the ToS to be automatically revised to best reflect the Parties’ original intent.
You are responsible for all activity occurring under Your Account Information and You will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Services. Furthermore, You hereby warrants to Bearer that all Services ordered hereunder shall not be used in violation of any applicable export laws and shall not be diverted to any country, company or individual if prohibited by the applicable export laws of any country. You undertake to abstain from, and shall ensure all Authorized Users abstain from, processing, storing or uploading on its data sharing environment any information or data, the export of which is controlled, regulated or subject to any permit or license under any applicable law or regulation. Customer shall be deemed to be the exporter of Customer Data. Bearer may terminate these ToS and all licenses and access to the Services hereunder upon written notice if Customer violates these provisions.