THESE MSP CONNECT TERMS are dated the date on which the MSP accepts them in accordance with paragraph 2 (the "Agreement").
Between:
1 Bitlync, Inc., a Delaware registered corporation with offices located at c/o Legalinc Corporate Services Inc., 131 Continental Dr, Suite 305, Newark, DE 19713 ("Bitlync"), and
2 The managed service provider or other organization identified in the Connection record created in the Service, on whose behalf these terms are accepted ("MSP"),
(each a "Party" and together, the "Parties").
Recitals
(A) Bitlync operates a hosted integration platform which sits between managed service providers and the independent software vendors whose products those providers use.
(B) The MSP uses one or more products supplied by such vendors and wishes to connect its own business systems to the Service so that those vendors may access the MSP's data through Bitlync, on the terms of a scoped and revocable grant approved by the MSP.
(C) Bitlync has agreed to hold the MSP's credentials in custody, to operate each Connection and Grant that the MSP approves, and to provide the MSP with visibility of and control over such access, subject to the terms and conditions of this Agreement.
AGREED TERMS
Interpretation:
1. The definitions and rules of interpretation in this paragraph apply in this Agreement.
AI Assistant: means the optional assistant feature of the Service which, where enabled for the MSP, answers questions from MSP Data on a read-only basis.
Applicable Laws: means all applicable laws, statutes, regulations and binding codes of practice from time to time in force which relate to the business of the applicable Party, including Data Protection Laws.
Audit Log: means the append-only record maintained by Bitlync of API calls touching a Connection, writes, logins, acceptances and Grant changes.
Connect: means the act of linking a Connected System to the Service through the Connect Flow, and "Connected" shall be construed accordingly.
Connect Flow: means the process, hosted by Bitlync and which may be co-branded with an ISV's name and marks, by which the MSP authorizes an ISV's integration to access the MSP's Connected Systems (such as its professional services automation, remote monitoring and management and similar systems), enters any Credential required for a Connection, reviews and approves the permissions which the ISV requests, and may later change or revoke those permissions in the MSP Portal.
Connected System: means a professional services automation, remote monitoring and management, documentation, distribution or other business system operated for the MSP by a third party, which the MSP connects to the Service. Supported systems are listed in the Documentation.
Connection: means the link established between a Connected System and the Service by means of a Credential.
Credential: means any API key, username, password, token, client identifier, client secret or similar secret which the MSP enters into the Service for the purpose of establishing a Connection.
Data Protection Laws: means all Applicable Laws relating to the processing of personal information, including (to the extent applicable) the California Consumer Privacy Act as amended, other United States state privacy laws, the EU General Data Protection Regulation 2016/679 and the UK General Data Protection Regulation.
DPA: means the Bitlync Data Processing Addendum for MSPs published at https://www.bitlync.com/legal/dpa, as amended from time to time in accordance with its terms.
Grant: means the scoped, revocable entitlement approved by the MSP in accordance with paragraph 5 which permits a named ISV to access specified categories of MSP Data through a Connection on the terms of the applicable Permission Summary.
ISV: means an independent software vendor whose product the MSP has chosen to use and which has entered into an agreement with Bitlync under which it may receive access to MSP Data through the Service pursuant to a Grant.
ISV Agreement: means the agreement between the MSP and an ISV governing the MSP's use of that ISV's product.
ISV Analytics: means statistics made available by Bitlync solely to an ISV which holds a Grant, concerning that ISV’s commercial relationship with one or more MSPs which have each approved a Grant to that ISV, limited to: (a) seat, license, device or unit quantities; (b) charges and billing amounts; and (c) purchase, renewal and consumption trends over time, in each case derived solely from that ISV’s ISV-Supplied Data, containing no personal information, and identifying no MSP which has not approved a Grant to that ISV.
ISV-Supplied Data: means data which an ISV submits to the Service, including billing quantities, charges, findings and the other content of any write requested by that ISV, but excluding (a) MSP Data received by that ISV through a Grant and (b) personal information relating to the personnel or clients of any MSP.
MSP Data: means all data retrieved from a Connected System through a Connection (including tickets, companies, contacts, devices, agreements, time entries and installed applications), all data entered into the Service by the MSP, and all data written to a Connected System through the Service, but excluding Credentials and Usage Data.
MSP Portal: means the web console made available by Bitlync to the MSP for the management of Connections and Grants and the review of the Audit Log.
Permission Summary: means the plain-language summary presented to the MSP in the Service which identifies a proposed Grant and lists every permission requested by the ISV, showing for each permission whether it is a read or a write, whether it is enabled or disabled by default in accordance with paragraph 5.5, and whether the ISV has marked it as Required.
Privacy Policy: means the Bitlync Privacy Policy published at https://www.bitlync.com/legal/privacy, as amended from time to time.
Service: means the Bitlync platform, comprising the Connect Flow, the Vault, the sync store, the MSP Portal, the Audit Log, connection health and incident features, the AI Assistant (where enabled) and the related documentation published at docs.bitlync.com.
Usage Data: means logs, metrics, telemetry and audit records generated by the operation of the Service, including the Audit Log.
Vault: means the credential store operated by Bitlync in which Credentials are held encrypted at rest.
Vendor Terms: means the terms of service, API terms, developer terms and acceptable use policies of the third-party vendor which operates a Connected System.
1.2 Paragraph and Schedule headings shall not affect the interpretation of this Agreement. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.4 A reference to writing or written communication includes e-mail and any record made or accepted by electronic means, including a checkbox or button in the Service. Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words. References to paragraphs and Schedules are to the paragraphs and Schedules of this Agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5 In the event of any conflict or inconsistency between this Agreement, the DPA and the Privacy Policy, the DPA shall prevail in respect of the processing of personal information and this Agreement shall otherwise prevail. Where the MSP and Bitlync have entered into a separately negotiated written agreement in respect of the Service, that agreement shall prevail over this Agreement to the extent of any conflict.
2. ACCEPTANCE AND FORMATION
2.1 This Agreement is accepted electronically. The MSP accepts this Agreement by checking the box presented in the Connect Flow which states that the MSP agrees to these MSP Connect Terms. The Service shall not permit a Credential to be saved, and no Connection shall be established, until the box has been checked. Bitlync shall record the date and time of acceptance, the identity of the accepting user and the version of this Agreement accepted in the Audit Log and on the resulting Connection and Grant.
2.2 The individual who accepts this Agreement represents and warrants that he or she is duly authorized to bind the MSP, and the MSP shall be bound accordingly.
2.3 No signature, countersignature or further formality is required for this Agreement to be binding. The MSP acknowledges that a record of acceptance made and stored by electronic means shall have the same legal effect, validity and enforceability as a manually executed signature to the fullest extent permitted by Applicable Laws.
2.4 The MSP acknowledges that it has read and understood paragraphs 4 (Credentials and the Vault), 5 (Grants to ISVs) and 6 (Reuse of a Stored Credential for Additional ISVs), which describe what will be done with the Credential the MSP enters and the manner in which ISVs are given access to MSP Data.
3. THE SERVICE
3.1 Bitlync shall make the Service available to the MSP so that the MSP may: (a) establish one or more Connections; (b) review, approve, narrow and revoke Grants; and (c) review the Audit Log and connection health information relating to its Connections.
3.2 The MSP acknowledges that the Service operates in the following manner: the MSP enters a Credential once; Bitlync stores the Credential in the Vault; Bitlync performs a single governed synchronization of the Connected System into a per-tenant sync store; each ISV approved by the MSP reads from that store within the scope of its Grant; and Bitlync delivers to the Connected System only those writes which fall within the write permissions of the applicable Grant.
3.3 No charge is made by Bitlync to the MSP for the Service. The Service is funded by fees paid to Bitlync by ISVs. Bitlync shall not introduce any charge to the MSP without the MSP's prior express written agreement.
3.4 The MSP's purchase and use of any ISV product is governed exclusively by the applicable ISV Agreement. Bitlync is not a party to any ISV Agreement, does not resell any ISV product and makes no representation, warranty or commitment in respect of any ISV product, its performance, pricing or support. Each ISV is responsible for its own partner messaging, product terms and any updates to those terms; Bitlync provides the connection, consent, visibility and audit layer only.
3.5 The MSP's use of each Connected System is governed by the applicable Vendor Terms. The MSP shall be solely responsible for ensuring that it is permitted under the Vendor Terms and its license for the Connected System to: (a) create and use each Credential it enters; (b) authorize Bitlync to access the Connected System on its behalf; and (c) authorize each ISV it approves to receive MSP Data.
3.6 The Connected Systems, objects, reads, writes and event types supported by the Service are those listed at docs.bitlync.com from time to time. Certain capabilities are documented as sandbox-only, parked or in staged rollout. Bitlync does not warrant that any connector, object, read or write is or will become available for any vendor.
3.7 Bitlync may modify, add to or withdraw features of the Service from time to time, provided that Bitlync shall not materially reduce the security commitments set out in paragraph 4 or the consent model set out in paragraphs 5 and 6 during the term of this Agreement without giving the MSP not less than thirty (30) days' prior written notice.
4. CREDENTIALS AND THE VAULT
4.1 When the MSP establishes a Connection, the MSP shall enter the Credential directly into the Connect Flow. Bitlync shall store the Credential in the Vault, encrypted at rest using AES-256-GCM with encryption keys maintained on a per-tenant basis. Bitlync shall act as custodian of the Credential solely for the purpose of operating the Connections and Grants which the MSP has approved.
4.2 No ISV shall receive, view or hold any Credential. Each ISV shall receive only a Grant, being a scoped entitlement on the Connection, and shall access MSP Data through Bitlync's API using an API key issued by Bitlync to that ISV. Bitlync shall not disclose any Credential to any ISV or other third party, save: (a) to the vendor of the applicable Connected System in the ordinary course of authenticating to that system on the MSP's behalf; or (b) where required by Applicable Laws. Bitlync shall not infer, derive or reconstruct any Credential belonging to one MSP or tenant from any Credential belonging to another.
4.3 The Connect Flow shall test each Credential and shall identify, in plain language, any permission required by the Service which is not available on that Credential before the Connection becomes live. A Connection with missing permissions may become live in a reduced state, and the Service shall show the MSP which capabilities are and are not available. Bitlync recommends that the MSP create a dedicated integration user or API member in the Connected System with the minimum permissions required.
4.4 The MSP shall: (a) ensure that each Credential is accurate, valid and one which the MSP is entitled to use; (b) rotate any Credential which it believes to have been compromised, and revoke it in the Connected System where appropriate; (c) keep under its own control all passwords for its Connected Systems which are not entered into the Service; and (d) ensure that only authorized personnel have access to the e-mail mailbox associated with the MSP's account, since the MSP Portal authenticates users by verified e-mail sign-in (magic link).
4.5 The MSP may rotate or delete a Credential at any time in the MSP Portal. Upon the MSP’s deletion of a Credential in the MSP Portal, Bitlync shall securely delete that Credential from the Vault within ninety (90) days, save for copies held in encrypted backups, which shall be overwritten in the ordinary course of backup rotation. Deletion of a Credential shall terminate the Connection and all Grants made on it.
4.6 Bitlync shall not synchronize into the sync store, and shall not make available to any ISV, any documentation password or credential object held in a Connected System (including password entries held in any documentation system).
5. GRANTS TO ISVS
5.1 Each ISV's access to MSP Data shall be the subject of a separate Grant. Before any Grant becomes live, Bitlync shall present to the MSP a Permission Summary identifying the ISV and listing every permission requested by that ISV, showing for each permission whether it is a read or a write, its default state in accordance with paragraph 5.5, and whether the ISV has marked it as Required. No ISV shall receive any access to MSP Data unless and until the MSP has reviewed and approved the applicable Permission Summary.
5.2 Before a Grant becomes live, Bitlync shall test each permission listed in the Permission Summary against the applicable Connection. Where any permission cannot be satisfied, Bitlync shall inform the MSP which permission is affected, and the Grant shall become live only in respect of those permissions which can be satisfied and which the MSP has approved.
5.3 The MSP may narrow or revoke any Grant at any time in the MSP Portal. Revocation shall take effect promptly, whereupon Bitlync shall cease to serve MSP Data to the relevant ISV under that Grant. Revocation of one ISV's Grant shall not affect the Credential, the Connection or any other ISV's Grant. Where an ISV's own agreement with Bitlync terminates, that ISV's Grants shall terminate automatically and the MSP's Connection and any other Grants shall continue unaffected. Revocation shall not require the deletion of MSP Data already received by an ISV, which shall be governed by the applicable ISV Agreement.
5.4 An ISV may write to a Connected System only within the write permissions approved by the MSP on the applicable Permission Summary. Bitlync shall deliver writes using a preview-then-commit model and, where supported by the Connected System, idempotency keys, so that a retried write does not create a duplicate record.
5.5 The MSP alone determines which write permissions are enabled for each ISV, whether on the Permission Summary at the time of approval or later in the MSP Portal, and the write permissions available through the Service are categorized as follows: (a) ordinary writes, being the creation and updating of tickets, the creation of notes, the closing of tickets, the creation of time entries, and billing quantity updates, where the ISV has enabled billing and the MSP has not opted out, subject to any review the MSP sets, are enabled by default; (b) closing a ticket with a resolution (close-with-resolution) is disabled by default; and (c) the updating of companies and agreements, the creation or updating of contacts, projects and custom fields, and device and documentation changes, are disabled unless and until the MSP expressly enables them. An ISV may mark a permission as Required for its integration, in which case that permission starts enabled, but the MSP may nevertheless switch it off, subject to a warning that the ISV’s product may not function correctly. Notwithstanding any Grant or any permission enabled by the MSP, the following operations shall never be performed through the Service: (i) the deletion of records in a Connected System; and (ii) the synchronization or disclosure of any documentation password or credential object, as further provided in paragraph 4.6. A billing write is limited to updating the quantity on a billing record which the MSP has matched to that ISV. The Service currently does not create companies or customers, agreements or contracts, or billing records in the MSP's professional services automation system. Any additional write types will be available only with the MSP's explicit authorization.
5.6 The Service maps only to companies, agreements and billing records which already exist in the MSP's systems. A company created at a distributor, where that write exists and the MSP has enabled it, is treated as any other enabled write under paragraph 5.5.
5.7 Bitlync shall maintain the Audit Log and shall make it available to the MSP in the MSP Portal so that the MSP may see what each ISV has accessed. Bitlync's support personnel may read the Audit Log for the purpose of diagnosing an issue but shall not be able to change the MSP's configuration, act as the MSP in any Connected System or use any Credential.
5.8 Each ISV has agreed with Bitlync to access MSP Data only within the scope of its Grant, to honor any narrowing or revocation, and not to request, solicit or attempt to obtain any Credential. Bitlync shall take reasonable steps to enforce those obligations, including by suspending an ISV's API access, but Bitlync shall not be liable to the MSP for any breach by an ISV of the applicable ISV Agreement.
6. REUSE OF A STORED CREDENTIAL FOR ADDITIONAL ISVS
6.1 The MSP acknowledges and agrees that a Credential entered for a Connected System is stored once in the Vault and may be used by Bitlync to operate any subsequent Grant on the same Connection which the MSP approves, so that the MSP is not required to re-enter the Credential each time it adopts an additional ISV's product.
6.2 Where the MSP adopts a further ISV whose product is connected to the Service, Bitlync shall: (a) verify the identity of the MSP user by a verified sign-in to the MSP's account; (b) present a dedicated authorization screen naming that ISV and setting out its complete Permission Summary; (c) re-run the permission test described in paragraph 5.2 against the stored Credential; and (d) create the new Grant only upon the MSP's approval. The additional ISV shall not receive the Credential.
6.3 Bitlync shall not create a Grant in favor of any ISV, or expand the scope of any existing Grant, without a fresh approval by the MSP given in accordance with paragraph 6.2 or in the MSP Portal. The MSP's approval of one ISV's Permission Summary shall in no circumstances be treated as approval of any other ISV's Permission Summary.
6.4 The MSP may at any time elect to use a different Credential for a particular ISV, or to terminate the Connection in its entirety, in the MSP Portal.
7. DATA FRESHNESS, RATE LIMITS AND AVAILABILITY
7.1 Where Bitlync serves a synced tenant record from the sync store, that read shall include a staleness time (the time at which the store was last synchronized). Reference data may be read live where supported, and a live read shall be indicated as live. This is the rule and is not a fixed list of objects. The MSP acknowledges that data in the sync store may lag the Connected System.
7.2 Bitlync shall pace its calls to each Connected System to a fraction of the applicable vendor's published per-tenant rate limit and shall back off when throttled, in order to reduce the risk of exhausting an API budget shared with other integrations. Bitlync does not control the vendor's limits and shall have no liability for throttling caused by other integrations on the MSP's tenant.
7.3 As the Service is provided to the MSP without charge, Bitlync offers no uptime, availability or support service level to the MSP. Bitlync shall publish connection health and incident information in the MSP Portal and shall use commercially reasonable endeavors to maintain the availability of the Service.
8. MSP OBLIGATIONS AND ACCEPTABLE USE
8.1 The MSP shall: (a) use the Service only for lawful purposes and in accordance with this Agreement; (b) comply with all Applicable Laws with respect to its activities under this Agreement, including Data Protection Laws, export control and sanctions laws; and (c) be responsible for the acts and omissions of its personnel and of any person whom it permits to access its account, as if they were the acts and omissions of the MSP.
8.2 The MSP shall not, and shall not permit any person to: (a) enter a Credential which the MSP is not authorized to use; (b) use the Service to access a Connected System belonging to a third party without that third party's authorization; (c) interfere with or circumvent the security, tenant isolation, rate limiting or audit features of the Service; (d) copy, adapt, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Service, save to the extent expressly permitted by Applicable Laws; (e) use the Service to store or transmit malicious code; or (f) use the Service to build, or assist any person to build, a product or service which competes with the Service.
9. MSP DATA AND DATA PROTECTION
9.1 As between the Parties, the MSP owns all right, title and interest in and to MSP Data. The MSP hereby grants to Bitlync a non-exclusive, worldwide, royalty-free license to host, copy, process, transmit and display MSP Data solely for the purposes of: (a) providing the Service to the MSP and to the ISVs which the MSP has approved; (b) maintaining the Audit Log; (c) complying with Applicable Laws; and (d) providing ISV Analytics.
9.1A ISV-Supplied Data remains the data of the ISV which submitted it, notwithstanding that a copy of it is written to a Connected System through the Service. The record so written to the Connected System is MSP Data.
9.2 The MSP acknowledges that MSP Data will ordinarily include personal information relating to the MSP's personnel and to the personnel of the MSP's own clients. To the extent Bitlync processes personal information contained in MSP Data on behalf of the MSP, Bitlync shall act as the MSP's processor or service provider (as those terms are defined in Data Protection Laws), and the DPA is hereby incorporated into and forms part of this Agreement.
9.3 The MSP shall be responsible for obtaining and maintaining all rights, consents, notices and authorizations required under Data Protection Laws and under its agreements with its own clients to permit Bitlync and each ISV approved by the MSP to process MSP Data in accordance with this Agreement.
9.4 The MSP hereby instructs and authorizes Bitlync to disclose MSP Data to each ISV within the scope of the Grant approved by the MSP for that ISV. The MSP acknowledges that each ISV is independently responsible for its use of MSP Data under the applicable ISV Agreement and Applicable Laws, and that the ISV does not act as Bitlync's sub-processor.
9.5 Bitlync shall not: (a) sell MSP Data; (b) aggregate MSP Data across MSPs for publication or sale, save that ISV Analytics shall not breach this paragraph 9.5(b); (c) share the MSP's name with vendors or other ISVs for the purpose of building a marketplace; or (d) use MSP Data to train any generally available machine learning model.
9.6 Bitlync may collect and use Usage Data for the purposes of operating, securing, supporting and improving the Service and enforcing this Agreement and its agreements with ISVs. Bitlync may share Usage Data relating to an ISV's Grant (including connection health and rate-limit consumption) with that ISV, and may use Usage Data in aggregated or de-identified form which does not identify the MSP or any individual.
9.7 Where the AI Assistant is enabled for the MSP, it shall operate in a structurally read-only mode, shall be pinned to the MSP's tenant and shall have no write capability. The MSP acknowledges that the AI Assistant may produce inaccurate output and shall verify such output before acting upon it.
9.8 Bitlync shall implement and maintain administrative, technical and physical safeguards designed to protect Credentials and MSP Data, including per-tenant encryption of Credentials, structural tenant isolation at the point of authorization, read-only support access and the Audit Log. Bitlync's SOC 2 examination is in progress; Bitlync does not claim a completed SOC 2 report or any other certification unless and until it confirms the same in writing.
9.9 Bitlync shall notify the MSP without undue delay, and in accordance with the DPA, after becoming aware of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Credentials or MSP Data.
9.10 Upon termination of this Agreement, Bitlync shall delete the MSP's Credentials and MSP Data from the Vault and the sync store within ninety (90) days, subject to the retention of the Audit Log and of encrypted backups in accordance with the DPA and the Privacy Policy.
9.11 The Service is not designed or intended for the receipt, storage, processing or transmission of protected health information (“PHI”) or for any use subject to the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (“HIPAA”). Bitlync is not a business associate of the MSP, does not act in any HIPAA capacity, and does not offer, enter into or operate under any business associate agreement. The MSP shall not submit PHI to the Service or use the Service to process PHI, and the MSP shall be solely responsible for any PHI or HIPAA-regulated data it introduces to the Service in breach of this paragraph 9.11. Nothing in this Agreement, including the DPA, shall be construed as a commitment by Bitlync to comply with HIPAA.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Bitlync and its licensors own all intellectual property rights in and to the Service, its canonical data model, its documentation and Usage Data. Save for the limited right to use the Service in accordance with this Agreement, no right, title or interest in the Service is granted to the MSP, whether by implication, estoppel or otherwise.
10.2 If the MSP provides Bitlync with any feedback, suggestions or ideas relating to the Service, Bitlync may use and exploit the same without restriction or obligation to the MSP.
10.3 The Connect Flow may be co-branded with an ISV's name and marks, which remain the property of that ISV. The ISV, and not Bitlync, is responsible for the ISV's partner messaging displayed in the Connect Flow.
11. CONFIDENTIALITY
11.1 Each Party agrees and undertakes that it will treat all non-public information disclosed to it by the other Party in connection with this Agreement which is marked as confidential or which a reasonable person would understand to be confidential ("Confidential Information") as strictly confidential, shall use it solely for the purposes of this Agreement, and shall not, without the prior written consent of the other Party, disclose it to any third party other than to its employees, officers, advisers and contractors who need to know it for those purposes and who are bound by obligations of confidentiality no less onerous than those in this paragraph 11. Credentials and MSP Data are the Confidential Information of the MSP.
11.2 The obligations in paragraph 11.1 shall not apply to any information which: (a) is in the public domain other than as a result of a breach of this Agreement; (b) was in the possession of the receiving Party prior to receipt from the disclosing Party without restriction; (c) is independently developed by the receiving Party without use of the Confidential Information; or (d) is required to be disclosed by Applicable Laws or by a court or regulatory body of competent jurisdiction, provided that the receiving Party gives the disclosing Party reasonable prior notice where lawful to do so.
11.3 The obligations in this paragraph 11 shall survive termination of this Agreement for a period of three (3) years, and indefinitely in respect of Credentials, MSP Data and trade secrets.
11.4 Nothing in this paragraph 11 shall prevent Bitlync from making ISV Analytics available to the ISV to which they relate in accordance with paragraphs 9.1 and 9.5. The MSP acknowledges that ISV Analytics are derived solely from that ISV’s ISV-Supplied Data, contain no personal information and do not identify any MSP which has not approved a Grant to that ISV.
12. WARRANTIES AND DISCLAIMERS
12.1 Each Party warrants that it has full capacity and authority to enter into and perform this Agreement.
12.2 The MSP warrants and represents that its use of the Service, its entry of each Credential and its approval of each Grant complies and will comply with the applicable Vendor Terms and Applicable Laws.
12.3 EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE", AND ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DATA IN THE SYNC STORE WILL BE CURRENT, ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THIS AGREEMENT. BITLYNC MAKES NO WARRANTY IN RESPECT OF ANY ISV PRODUCT OR ANY CONNECTED SYSTEM.
13. LIMITATION OF LIABILITY
13.1 This paragraph 13 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of any breach of this Agreement and any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL OR REPUTATION, OR LOSS OR CORRUPTION OF DATA, HOWSOEVER CAUSED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.3 THE TOTAL, CUMULATIVE LIABILITY OF BITLYNC UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO FIVE HUNDRED UNITED STATES DOLLARS (US$500).
13.4 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS PARAGRAPH 13 ARE A MATERIAL PART OF THE BARGAIN AGREED BETWEEN THE PARTIES, REFLECTING THAT THE SERVICE IS PROVIDED TO THE MSP WITHOUT CHARGE, AND THE MSP ACKNOWLEDGES THAT BITLYNC WOULD NOT BE WILLING TO ENTER INTO THIS AGREEMENT WITHOUT SUCH PROVISIONS. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE: (A) EITHER PARTY'S LIABILITY FOR ITS OWN FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) THE MSP'S LIABILITY UNDER PARAGRAPH 8 OR PARAGRAPH 14; OR (C) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAWS.
13.5 Bitlync's liability to the MSP is reduced to the extent (if any) that the MSP causes or contributes to the relevant loss or fails to act reasonably to mitigate its loss.
14. INDEMNITY
14.1 The MSP shall defend, indemnify and hold harmless Bitlync and its officers, directors, employees, agents, successors and assigns from and against all third-party actions and claims, and all losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees) arising therefrom, which arise out of or relate to: (a) the MSP's breach of the Vendor Terms or of paragraph 3.5, 8, 9.3 or 9.11; or (b) any claim by a client of the MSP relating to MSP Data, save in each case to the extent caused by Bitlync's breach of this Agreement.
14.2 The indemnity in paragraph 14.1 shall not apply unless Bitlync notifies the MSP in writing promptly of any matter in respect of which the indemnity may apply and gives the MSP the opportunity to control the defense and settlement of the claim, provided that no settlement which imposes any liability or admission on Bitlync shall be made without Bitlync's prior written consent (not to be unreasonably withheld or delayed).
15. TERM, SUSPENSION AND TERMINATION
15.1 This Agreement shall commence on the date of acceptance in accordance with paragraph 2 and shall continue until terminated in accordance with this paragraph 15.
15.2 The MSP may terminate this Agreement at any time by revoking all Grants, deleting all Credentials and closing its account in the MSP Portal, or by written notice to Bitlync. Bitlync may terminate this Agreement for convenience on not less than thirty (30) days' written notice to the MSP.
15.3 Either Party may terminate this Agreement immediately by written notice if the other Party commits a material breach of this Agreement which is not remedied within thirty (30) days after written notice specifying the breach and requiring its remedy.
15.4 Bitlync may suspend any Connection, Grant or the MSP's account with immediate effect where Bitlync reasonably considers suspension necessary to protect the security or integrity of the Service, a Connected System, other customers or an ISV, or where required by Applicable Laws or by the vendor of a Connected System. Bitlync shall notify the MSP of any suspension and shall restore access as soon as reasonably practicable after the reason for suspension has ceased.
15.5 Upon termination of this Agreement for any reason: (a) all Grants shall terminate; (b) Bitlync shall delete Credentials and MSP Data in accordance with paragraph 9.10; and (c) paragraphs 1, 4.5, 9.4, 9.10, 10, 11, 12.3, 13, 14, 15.5 and 17 to 24 shall survive.
16. CHANGES TO THIS AGREEMENT
16.1 Bitlync may amend this Agreement from time to time by posting the amended version in the MSP Portal and at https://www.bitlync.com/legal/msp-terms and, in the case of a material amendment, giving the MSP not less than thirty (30) days' notice by e-mail. As the MSP has no committed term, amendments shall take effect on the date stated in the notice. The MSP must accept each amendment in the same manner as described in paragraph 2, by checking a box or clicking a button in the Service or the MSP Portal which states that the MSP agrees to the amended terms, and no such acceptance shall be deemed to arise merely from the MSP’s continued use of the Service. Where an amendment materially and adversely affects the MSP, the MSP may terminate this Agreement by written notice given before the effective date. If the MSP does not accept an amendment by the effective date, Bitlync may suspend the MSP’s Connections, Grants or account and the MSP’s access to the Service in accordance with paragraph 15.4. Amendments required by Applicable Laws or to address a security risk may take effect immediately.
17. FORCE MAJEURE
17.1 Neither Party shall be liable to the other for any failure or delay in performing its obligations under this Agreement (other than an obligation to pay money) to the extent that such failure or delay is caused by events beyond its reasonable control, including acts of God, war, riot, civil commotion, terrorism, epidemic, fire, flood, storm, failure of public utilities or telecommunications networks, or the failure or unavailability of any Connected System or vendor API.
18. WAIVER AND SEVERABILITY
18.1 No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
18.2 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
19. ENTIRE AGREEMENT
19.1 This Agreement, the DPA and the Privacy Policy constitute the entire agreement between the Parties in respect of the Service and supersede all prior agreements, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party acknowledges that in entering into this Agreement it has not relied on any statement, representation or warranty not expressly set out in this Agreement.
20. ASSIGNMENT
20.1 The MSP shall not assign, transfer, novate or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of Bitlync. Bitlync may assign or novate this Agreement to any Affiliate or to any successor in interest in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, upon notice to the MSP. For this purpose, "Affiliate" means any entity that directly or indirectly controls, is controlled by or is under common control with Bitlync.
21. NO PARTNERSHIP OR AGENCY; THIRD PARTY RIGHTS
21.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either Party the agent of the other, or authorize either Party to make or enter into any commitments for or on behalf of the other.
21.2 Save that each ISV may enforce paragraph 9.4 in respect of its own Grant, no person who is not a Party to this Agreement shall have any right to enforce any of its terms.
22. NOTICES
22.1 All notices under this Agreement shall be in writing and shall be deemed duly given if sent by e-mail: (a) if to Bitlync, to ryan@bitlync.com (or such other address as Bitlync publishes for legal notices), marked for the attention of the Legal Department; and (b) if to the MSP, to the e-mail address registered on the MSP's account. A notice sent by e-mail shall be deemed received at the time of transmission (or, if sent outside normal business hours, when normal business hours next resume), provided that no delivery-failure notification is received.
23. EXPORT CONTROL AND SANCTIONS
23.1 The MSP represents and warrants that it is not located in, organized under the laws of, or ordinarily resident in any country or territory that is the subject of comprehensive United States sanctions, and that neither it nor any of its owners is identified on any United States government restricted-party list. Each Party shall comply with all applicable export control and sanctions laws in connection with this Agreement.
24. GOVERNING LAW AND JURISDICTION
24.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be exclusively governed by and construed in accordance with the law of the State of Delaware, without giving effect to any conflict of laws rules or principles that would require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
24.2 The Parties irrevocably agree that the state and federal courts located in the State of Delaware (including, where applicable, the Court of Chancery) shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims), save that either Party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights or Confidential Information.
24.3 To the fullest extent permitted by Applicable Laws, each Party agrees that any claim shall be brought only in its individual capacity and not as a plaintiff or class member in any purported class, collective or representative proceeding.