Version 1.0 - October, 31st 2013
Scrutinizer GmbH
Science Park, Universitätsplatz 12
34127 Kassel
Germany

1 Subject Matter

1.1
The subject matter of this Agreement is the use of Scrutinizer Continuous Inspections (hereinafter "Scrutinizer CI"). This Agreement regulates all relations between Scrutinizer GmbH (hereinafter "Scrutinizer") and the customer regarding the use of Scrutinizer CI.
1.2
Scrutinizer CI communicates with third-party hosting services on behalf of the customer. Examples for such third-party services include but are not limited to github.com offered by GitHub Inc, and bitbucket.org offered by Atlassian Pty Ltd. Requirement for the proper use of Scrutinizer CI is a valid contract of the customer with such a third-party hosting service. The customer is aware that such a contract might lead to additional costs. The customer will provide Scrutinizer with the credentials for accessing the customer's third-party hosting services (hereinafter "third-party credentials") when signing in on scrutinizer-ci.com (hereinafter "Website") automatically. He allows Scrutinizer to access the customer's third-party accounts. The customer authorizes Scrutinizer to act on behalf of the customer towards these third-party services. The customer is solely liable for any costs or damages that these third-party services associate with the usage of the customer's third-party credentials.

2 Scope of Services

2.1
Scrutinizer provides Scrutinizer CI as a service. As such, Scrutinizer CI may be used via the Internet only.
2.2
Scrutinizer CI is a hosted continuous inspection service that provides the infrastructure for measuring and tracking the quality of software projects. The functional range of the service is dependent on the specific plan the customer chooses and is displayed on the Website.
2.3
Scrutinizer CI is integrated with GitHub, Bitbucket and offers support for several programming languages. The entire list of supported programming languages is available at scrutinizer-ci.com/docs. Scrutinizer does not guarantee the availability of a specific analysis tool unless this is explicitly expressed in the chosen plan.
2.4
No consultancy, training, trouble shooting or support for third-party analysis tools is within the scope of services offered by Scrutinizer under this Agreement.

3 Concluding of the Agreement

3.1
Using Scrutinizer requires the opening of an Account on scrutinizer-ci.com. Only entrepreneurs under section 14 of the German Civil Code can conclude Agreements with Scrutinizer on the use of Scrutinizer CI.
3.2
An account may only be used by a single person. The customer must create separate Accounts for his employees which may be subject to additional fees depending on the plan the customer has chosen.
3.3
The person opening the Account represents that he/she has got the legal authority to bind the legal entity - he/she acts for - to this Agreement and may in knowledge of this Agreement provide third-party credentials to Scrutinizer.
3.4
In connection with the sign up the customer is obliged to
  • make precise and correct allegations and to correct the data if changes accrue;
  • keep all Account information confidential at all times and take all measures to avoid any third-party getting hold of the information. In this regard, 'third-party' also includes all employees of the customer that are not designated to use Scrutinizer CI;
  • immediately inform Scrutinizer in case of loss, theft or other disclosure of the Account data to a third-party, or in suspicion of misuse of the Account data and to immediately change the access credentials for the Account in question;

4 Obligations of the Customer

4.1
The customer is obliged to make agreed payments in due time.
4.2
The customer must not interfere or intent to interfere in any manner with the functionality or proper working of Scrutinizer CI.
4.3
The customer must take care of regular backups of his software. When delivering its services Scrutinizer assumes that the retrieved software - which is analyzed by Scrutinizer - is a copy only and may be disposed of.
4.4
The customer will make sure that the software does not contain unanonymized data of real persons.
4.5
The customer will indemnify and hold harmless Scrutinizer, its officers and directors, employees and agents from any and all third-party claims, damages, costs (including reasonable attorneys fees) arising out of the customer's use of Scrutinizer CI in a manner not authorized by this Agreement, and/or applicable law, or the customer's or its employees' or personnel's negligence or willful misconduct.

5 Downtime and Services Unavailability

5.1
Adjustments, changes and updates of Scrutinizer CI that help to avoid or maintain dysfunctions of the software may lead to temporary service unavailability. Scrutinizer will try to limit downtime of the service or restrictions of accessibility to 10 hours a month. Scrutinizer will try to do regular maintenance works during the weekend or at times between 10 p.m. and 6 a.m. (CET).
5.2
The customer is aware that the service relies on a working Internet infrastructure. Additional downtime of the service can occur, if the Website is not available and at any other time with restrictive access to the Internet.
5.3
The customer is aware that Scrutinizer CI does not work if third-party hosting services including but not limited to GitHub or Bitbucket are not properly available (be it to the customer or Scrutinizer only).

6 Rights to Use

6.1
The customer is granted a limited, non-exclusive, non-transferable, non-sublicenseable right to use Scrutinizer CI as software as a service via the Internet.
6.2
The customer is not granted any additional right to the software or any other intellectual property of Scrutinizer. In particular, this means that the customer shall not be entitled to make copies of Scrutinizer CI. The customer shall not translate Scrutinizer CI's program code into other forms of code (decompilation) or employ other methods aimed at revealing Scrutinizer CI's software code in the various stages of its development (reverse engineering).
6.3
The customer is not entitled to remove or make alterations to copyright notices, serial numbers or other features which serve to identify Scrutinizer CI's software.

7 Payments

7.1
The compensation of the services performed by Scrutinizer is calculated per month. The current prices are shown in the current price list of Scrutinizer that is available on the Website. The compensation is due monthly in advance.
7.2
Invoices will be issued via email. Payments shall become due immediately upon issuance of the invoice. Payment must be made using the payment methods provided by Scrutinizer and chosen by the customer on his account's billing page.
7.3
All prices in the price list are net prices. Value-added tax will be added in the invoice if applicable.
7.4
Scrutinizer may alter the current price list and/or structuring of prices with at least one month notice to the end of each quarter. Scrutinizer will inform the customer via email about the price change. If the customer does not expressly disagree in writing within a month from the notification of change, this is deemed to be the customer's acceptance of the change. The customer will be informed about the consequence of his silence in the email notifying about the change.

8 Warranty

8.1
Defects in the supplied software shall be remedied within a reasonable time following a detailed notification of such defect being given to Scrutinizer by the customer. This guarantee does not apply to analysis tools which are developed by third-parties unless expressly included in the plan the customer has chosen.
8.2
For the purpose of remedying defects, Scrutinizer may choose to replace the defective Software with a version of the Software which is free of defects.
8.3
Unless Scrutinizer fails to repair or replace the Software, the right of the customer to terminate the contract due to an inability to use the Software shall be excluded.
8.4
The limitation period for all warranty claims shall be 12 months commencing with the first coming to show of the defect.

9 Liability

9.1
The pre-contractual, contractual and non-contractual liability of Scrutinizer is limited to cases of intent and gross negligence.
9.2
In cases of ordinary negligence Scrutinizer's liability shall be limited to the breach of contractual obligations which are cardinal obligations. Cardinal obligations are those obligations for which due fulfillment is essential to the proper implementation of the contract as a whole, and the contractual partner may depend upon their fulfillment.
9.3
The amount of damages shall be limited to those losses which are generally foreseeable in connection with the supply of the software.
9.4
The above limitations of liability shall also apply where Scrutinizer is vicariously responsible for its employees and agents.
9.5
The limitation of liability in section 9 of these terms shall not apply to liability resulting from injury to the life, body or health of a person or under the German Product Liability Law.
9.6
Any claims for damages by the customer relating to defects in the supplied software shall be subject to a limitation period of 12 months. This does not apply to defects which have been intentionally concealed by Scrutinizer.

10 Data Protection and Confidentiality

10.1
Scrutinizer stores account data, third-party credentials and user information about the customer. This data may be shared with third parties if those are assigned by Scrutinizer to handle accounting, payment or other internal processes.
10.2
Scrutinizer stores the source code, measured software metrics, and statistics of the customer's analyzed software. Some of this data may be shared with third parties for example if the customer has requested a special analysis which is performed by such a third party. Statistical data may be published by Scrutinizer to the public in an anonymized form.
10.3
Scrutinizer uses web tracking to store and analyze the customer's interaction with the website. The customer agrees to this form of monitoring, tracking and storage. Scrutinizer may also store monitoring and statistical data about the customer's usage of Scrutinizer CI. This data may be published by Scrutinizer to the public in an anonymized form.
10.4
Scrutinizer may inform the public about the customer using Scrutinizer CI and Scrutinizer's services including a rough description of the usage for marketing and public relation purposes. The customer agrees to appear in Scrutinizer's reference lists including any name, trademark or logo of the customer. This includes, but is not limited to, descriptions on the Website, any other Scrutinizer websites, presentations, presentation material and press announcements.

11 Term and Termination

11.1
The Agreement runs for an indefinite time and will remain in effect until terminated by one of the Parties in accordance with section 11 of these terms.
11.2
The Parties may terminate this Agreement for any or no reason at their convenience with a 30 day notice to the end of each month. Termination may be issued in writing or by using the provided account closing mechanism if provided by Scrutinizer.
11.3
In addition, each Party's right to terminate this Agreement for a good cause remains unaffected. A good cause for termination of the Agreement by Scrutinizer shall include, but is not limited to, the following:
  • a serious breach of obligations arising from this Agreement by the customer;
  • a default in payment of the customer with an amount that equals at least the compensation of two months;
  • the failure to settle outstanding invoices;
  • a serious breach of contract leading to the loss of mutual trust which renders the continuation of this Agreement in consideration of the purpose of the Agreement unreasonable;
  • an attempt at a denial of service attack on any of Scrutinizer's services by the customer, or any attempt to hack or break any security mechanism on any of Scrutinizer's services;
  • determination that the customer's use of Scrutinizer's services poses a security or service risk to Scrutinizer, or to any user of Scrutinizer's services;
  • a major change in the working of third-party hosting services including but not limited to GitHub and Bitbucket which make it unreasonable for Scrutinizer to adapt Scrutinizer CI accordingly;
  • a major change in the co-operation of a third-party hosting service including but not limited to GitHub and Bitbucket which makes the further offering of Scrutinizer CI unreasonable for Scrutinizer;
  • an application for the initiation of insolvency proceeding concerning the customer, including the refusal to open insolvency proceedings for lack of assets, or the the issue of a declaration in lieu of an oath, or any similar proceedings.

12 Disputes, Applicable Law, Notices

12.1
This Agreement and any dispute, controversy, proceeding or claim of whatever nature arising out of, or in any way relating to this Agreement or its formation shall be governed by material German law. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
12.2
The parties agree that the courts of the seat of Scrutinizer shall have exclusive jurisdiction (so far this is permitted by law) to settle any dispute, controversy, proceeding or claim of whatever nature arising out of, or in any way relating to this Agreement or its formation.
12.3
Notices made by Scrutinizer to the customer may be posted on the Website and/or send to the email address specified by the customer when signing up or to any updated email address the customer provides. Notices to Scrutinizer must be directed to admin@scrutinizer-ci.com and/or Scrutinizer GmbH, Science Park, Universitätsplatz 12, 34127 Kassel, Germany.
12.4
The official text of this Agreement and any annexes attached here to and any notices given here shall be in English. However communication between Scrutinizer and the customer may be in English or German.

13 Final Provisions

13.1
This Agreement, together with any documents referred to herein, or expressed to be entered into in connection with it, constitutes the whole agreement between the Parties concerning the subject matter of this Agreement. Any ancillary verbal agreements are void.
13.2
The customer may set off only legally binding and recognized claims. The rights and obligations arising from this Agreement are generally not transferable. However, Scrutinizer may transfer this Agreement with all rights and obligations to a company of its choice.
13.3
These terms of service may be modified by Scrutinizer at any time. Scrutinizer will inform the customer via email that these terms of service have been altered without necessarily including the new version or alteration in this email. If the customer does not expressly disagree in writing within a month from the notification of change, this is deemed to be the acceptance of the change. The customer will expressly be informed about this consequence and the significance of his silence in the email notifying about the change.