Last updated December 9, 2020
Terms of Service
The That's Why Terms of Service apply to all services provided through url https://thatswhy.app (“Website”) by Astronatic, registered at the Chamber Of Commerce under number 75714183, hereafter referred to as “That's Why”.
Read these Terms of Service carefully. They define your legal rights and obligations towards That's Why.
These Terms of Service may be revised or updated without notice. Therefore we advise you to review these Terms of Service regularly. The latest version of the Terms of Service is always available on the Website.
At every registration (hereafter the “Registration”) in order to get an account you will be asked to confirm that you have read these Terms of Service and that you agree to their content as binding. Your visit to the Website, your Registration in order to get an account and each use of a service, involves automatically the knowledge and the approval of these Terms of Service.
In addition to terms which are defined in these Terms of Service, the following terms are defined for purposes of these Terms of Service:
1.2. Confidential Information – The term "Confidential Information" means information which has been or which may be disclosed, either orally or in writing, by one party (the "Provider") to the other party (the "Recipient") in confidence or marked "Confidential", including, without limitation, information concerning any aspect of the business of the Provider or its parent, financial statements, business and marketing plans, pending or threatened litigation, prospective contractual relations, collection, tabulation and analysis of data, computer programming methods, designs, specifications, plans, drawings and similar materials, programs, databases, inventions (whether or not eligible for legal protection under patent, trademark, or copyright laws), research and development, and/or work in progress. Confidential Information also includes any document marked "Confidential". Notwithstanding the foregoing, Confidential Information does not include any information which: (a) is or was in the public domain at the time communicated to the Recipient, or which becomes public through no fault of the Recipient; (b) is or was obtained by the Recipient, with permission to disclose, from a third party not, to the Recipient's knowledge, subject to a contractual, fiduciary or other duty not to disclose; (c) has been independently derived by the Recipient without reference to Confidential Information; or (d) was lawfully in the Recipient's possession free of any duty to the Provider before the date of disclosure to the Recipient by the Provider.
1.3. End User – Any person or company which has entered into these Terms of Service with That's Why to obtain a service offered by them, including an end user license and/or limited right of use to the Product as specified on https://thatswhy.app.
1.4. Development license – License to install, develop, test and evaluate the Product.
1.5. Fees – The amounts to be paid by the Licensee to That's Why in return for the right to use the Software, Services and/or Support under the conditions provided in these Terms of Service.
1.6. License – The right obtained under the present Terms of Service to use the Software under the conditions set out in the present Terms of Service.
1.7. Platform – The Software-as-a-Service platform as set up by That's Why and through which the Software is made available to Licensee.
1.8. Product – The software program, in object code format, listed and described on https://thatswhy.app, including all present and future bug fixes, corrections, updates, upgrades, modifications, new features or functionalities and Documentation.
1.9. Services – The installation of the Software, integration of the system and Support to End Users as described on https://thatswhy.app.
1.11. Support – That's Why’s technical and product support for the Product as further described in Article 6 of the present Terms of Service.
1.12. Trademark – That's Why’s trademarks, trade names, company names, logo’s, used to identify herself, its products and services.
1.13 Website – The That's Why website accessible through https://thatswhy.app.
2. Object Grant of License and Maintenance Terms of Service
2.1. By accepting the present Terms of Service and in return for the payment of the price, That's Why grants the Licensee a non-exclusive, non-transferable and temporary License to access and use the Software through the Platform by using the site key which can be requested by a subscriber. The access and use of the Software is limited to the purpose and duration described in the present Terms of Service.
The Software includes the following, distinctive features:
- Measure web application performance from real users
- Provide insights into the aggregated measured performance
- Easy installation
That's Why allows to monitor the performance of multiple apps.
Any amendments, additions or deletions may be made to these features and will be send to the subscriber.
2.2. By the present Terms of Service Parties agree that, for the entire duration of the present Terms of Service and in complement to the License described under article 2.1. and in return for the payment of the price, That's Why will offer its Services on the Software under the conditions and limitations and in the manner and for the purpose described in the present Terms of Service and for the duration set out in the present Terms of Service.
2.3. The present Terms of Service constitute a direct binding agreement between That's Why and the Licensee, with the exclusion of any connection or tie to any third or intermediary party.
2.4. Nothing in these Terms of Service shall be construed so as to give rise to any joint venture, partnership or relationship of employer and employee. Either Party is an independent contractor solely responsible for its own obligations. Neither Party shall have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other Party.
3.1. In order to use the Software through the Platform, the Licensee has to fill in the Registration Form on the Website with his personal information. This form must be completed correctly and entirely. That's Why can unilaterally, immediately, definitely and without prior notice terminate / disconnect the account linked to an incomplete or incorrect Registration.
3.2. Licensees are not allowed to use third parties identities, proxy’s, temporary email addresses and more than one (1) account.
3.3. The account is created strictly for the Licensee, he is not allowed to share this account with third parties, except with the creation of teams. Every Licensee who has a subscription can create multiple teams and invite others, users or admin, into these teams. Each team can create sites, without any limit on the amount of sites, and manage the role of the users in these teams. Only the original creator, the ‘owner’ of the team is allowed to manage the payment details. The ‘owner’ is responsible for the actions taken by the other users inside the team. The ‘owner’ of the site will be charged for the used License(s).
3.5. That's Why reserves the right to agree or refuse the Registration and the right to warn Licensee or to refuse temporarily or definitely the access to the Website and/or Software. This may notably be refused, based on any of the following reasons:
- Licensee does not communicate the data asked for the identification or communicates incomplete or wrong data;
- Licensee tries to register more than once e.g. under different pseudonyms;
- Licensee uses a third party’s identity;
- Licensee does not comply with the obligations incorporated in these Terms of Service, did not comply with them in the past or That's Why can reasonably assume that he will not comply with them in the future;
- Any other reason based on which That's Why can reasonably decide to refuse the Registration.
4. Duration - Termination - Cancellation
4.1. That's Why offers a fourteen (14) day free trial period, by simple subscription through its Website. During this free trial period the present Terms of Service apply in all its articles, safe the payment terms under article 7 and the duration and termination terms under article 4. Upon the end of the free trial period, the Licensee may decide to enter into a paying subscription (monthly) under the present Terms of Service, in which case articles 4 and 7 will also apply. In the event of a free trial, That's Why reserves the right to terminate the free trial at any point in time, without explanation or justification.
4.2. The effective date of these Terms of Service is the first day of the fourteen (14) day free trial period or in case of a subscription the first day of your monthly subscription. The Terms of Service are entered into subsequent monthly periods.
4.3. In the event that the Licensee does not respect the terms and conditions of the present Terms of Service, That's Why will be entitled to terminate the Terms of Service with immediate effect, without prior written notice and without prior court intervention. In that event, all license keys and/or user accounts will be blocked immediately. In the event of such termination, That's Why will be entitled to full compensation by the Licensee for all possible damages.
4.4. That's Why shall be entitled to terminate the present Terms of Service with immediate effect, without prior written notice and without prior court intervention if either one of the following events occur:
- If a substantial part or the entire body of the Licensee’s assets is sold
- If the Licensee suspends all payments, files a voluntary petition in bankruptcy, is declared bankrupt or starts liquidation or similar proceedings
- If there is a major change of the Licensee’s shareholding structure or if the control over the Licensee’s business changes hands.
4.5. Any notice or termination of the present Terms of Service shall be effected by means of a registered letter.
4.6. A Licensee can upgrade, downgrade or cancel the subscription for his team(s) at any given time via the “Plan” section within the account settings. The adjustment of the plan will take place at start of the Licensee’s new subscription period. Phone calls or emails will not be accepted as valid cancellation requests. The subscription will expire at the end of the subscription period.
4.7. Users and Licensees can delete their account by clicking on “Delete account" within the account settings. The Licensees can delete their team(s) by clicking on "Delete team" within the team settings. The Licensee will always be responsible for the payment of his subscription. The subscription of the current period will still be charged if a Licensee deletes his account in that period.
4.8. The Licensee can renew his subscription at any given time. The Licensee is always responsible for the payment and cancellation of his own subscription(s). No refunds will be issued in case of cancellation, unless stated otherwise.
5. Conditions Subject of License
This means that access to the Software is delivered by That's Why on a hosted third party server, hired, rented or leased by That's Why as an integrated part of That's Why’s service proposal towards Licensee.
5.2. The Licensee does not have the right, to resell, rent out or sublicense the Software or to grant on premises licenses or rights of use in any form, nor does he has the right to transfer his License to third parties. By accepting the terms and conditions of the present Terms of Service, the Licensee accepts full liability and responsibility for any damage to That's Why induced by any illicit access, resale, rental, license or any other use of the Software by the Licensee.
Any reselling, renting out, sublicensing or any other way of making the Software available to third parties by the Licensee, without written approval from That's Why, shall be considered as a serious breach of contract by the Licensee and shall give rise without prior written notice and without prior court intervention to a lump sum damage compensation due by the Licensee towards That's Why equal to the value of 3 times the total yearly fees paid by Licensee under the present Terms of Service (unless stated otherwise). This also reserves the right for That's Why to terminate the present Terms of Service according to article 4.3. of these Terms of Service.
5.3. If the Licensee is a business or organization, the Licensee agrees that upon request by That's Why or a That's Why authorized representative and within 7 days, the Licensee shall fully document and certify, i.e. to support with evidence on a case by case basis, that its use of the Software at the time of the request is in conformity with the License granted by That's Why.
5.4. Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and That's Why (and its suppliers) shall retain all right, title and interest in and to the Software (and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein).
6. Updates and Support
That's Why may update the Software without notifying you, and you hereby consent to That's Why applying patches, updates, and upgrades. That's Why may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Software at any time.
6.2. If the Licensee is experiencing technical problems with the Software or system, but in That's Why’s sole judgment, the problem is caused by something other than the Software and not a direct responsibility of the working of the Software, That's Why cannot provide additional support to help remedy the problem, nor at standard service rates.
Technical problems or support questions which are not directly caused by the Software and which require additional support as set out under the present article 6.2. may include (by way of example, but not by way of limitation) the following matters as illustrative examples of additional support that cannot be provided by That's Why:
- Computer viruses not introduced by the Software as delivered by That's Why
- Problems with the Licensee’s hardware
- Problems with the Licensee’s software
- Problems with the Licensee’s backup and recovery services
- Problems arising from the installation or use of uncertified third-party software
- Problems with the Licensee’s network
- Networking issues not caused by the Software
- Servicing, repairing, relocating, re-installing or moving any hardware
If it is unclear at the time of appearance of the technical problem whether the cause is external, That's Why will work with the Licensee to determine the cause. Once it has been established that the cause is indeed external, the Licensee becomes responsible for further escalation.
6.3. That's Why shall provide Support for the Software to the Licensee for the entire duration of these Terms of Service. These Support services shall only apply to the use of the Software as available on the Platform at any given moment.
That's Why supports the Licensee with assistance in solving problems arising from the use of the Software, hardware interfacing of peripheral devices and logging of enhancement requests and bugs submitted by the Licensee.
That's Why does not offer training, Maintenance or direct Support to staff or partners of Licensee. Licensee is exclusively responsible for all training, maintenance and support towards its staff and partners.
6.4. Support offered by That's Why to Licensee includes:
- online support to clients
- providing support through documents, tutorials and blogs which can be found on the website
- That's Why reserves the right to add new features, which can be consulted on https://thatswhy.app.
Support does not include:
- Any external components/software needed for the new functionalities
- Travel expenses
- Additional Support as set forth in article 6.2. of the present Terms of Service
6.5. All Support under the present Terms of Service is limited to the duration of these Terms of Service.
6.6. All Support offered by That's Why is offered on a best efforts basis. That's Why does not guarantee response and intervention times and is not liable for any direct or indirect damages to Licensee.
7. Pricing & Payment
7.1 All license fees consist of a lump sum fee per ‘owner’ per month, which are non-refundable and non-fractionable in weekly or other periodical payments. Invoicing for cost per ‘owner’ is made up front for the upcoming month. The fee includes access to the Platform and Support as described at any given time on the Website. The Licensee may opt for a free trial of 14 days.
8. General Terms of Payment
8.1. All invoices, with monthly subscription fees, are automatically charged at the start of each billing period.
8.2. In order to be valid, all protests regarding subscription fees must be submitted immediately by email.
8.3. All delivered goods, including software licenses, user accounts and passwords, shall remain That's Why’s property until full payment of all invoices.
8.4. That's Why reserves the right to suspend performance of these Terms of Service in the event of non-payment of subscription fees or failure to provide valid credit card details.
9. Intellectual Property and data processing
9.1. The Software is licensed, not sold to the Licensee. The Licensee does not obtain any property right on the Software. At all times, That's Why remains the exclusive owner of the Software, as well as the exclusive holder of all copyrights and other intellectual property rights on this Software. Its code, structure and organisation are valuable trade secrets of That's Why and its suppliers which are protected by The Netherlands copyright laws and international treaties.
9.2. That's Why may, to the extent that personal data in the sense of the General Data Protection Regulation is processed, be considered to be a data processor for the Licensee, who acts as a Data controller. In such case, That's Why will only process the personal data provided by the Licensee and only for the purpose for which it is provided by the Licensee. That's Why guarantees that it fully complies to all obligations under the General Data Protection Regulation, both in relation to its obligations as a processor towards Licensee and in general. It guarantees that it has taken all reasonable technical and organisation precautions to ensure safe data processing and that it shall comply to all obligations towards Licensee as described in the General Data Protection Regulation. All data is processed within the European Union.
10. Disclaimer of Warranty
10.1. The Software and its Documentation is provided “as is” and with all its faults.
10.2. Any use of the Software by the Licensee is under its own responsibility and at its own risk. That's Why does not guarantee compliance to tax laws or other laws or regulations at any moment. Licensee is sole responsible for the accuracy of data input into the Software, data processing by the Software based on Licensee’s input and data output by the Software as well as for the use of data output made by Licensee and respect for all laws to which Licensee may at times be subject, including amongst others, but not limited to, anti-money laundering laws and regulations, tax laws and regulation, financial laws and regulations.
10.3. The software and support services are provided “as is” without warranty of any kind. That's Why does not warrant that the software or support services will meet Licensee’s requirements or that they will be uninterrupted or error-free. To the fullest extent permitted by law, That's Why hereby disclaims (for itself and its suppliers) all other warranties, whether express or implied, oral or written, with respect to the software and support services including, without limitation, all implied warranties of title, non-infringement, quiet enjoyment, integration, merchantability or fitness for any particular purpose and all warranties arising from any course of dealing, course of performance or usage of trade.
10.4. In no event shall That's Why (or its suppliers) be liable concerning the subject matter of these Terms of Service, regardless of the form of any claim or action (whether in contract, negligence, strict liability or otherwise), for any (a) matter beyond its reasonable control, (b) loss or inaccuracy of data, loss or interruption of use or cost of procuring substitute technology, goods or services, (c) indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits or goodwill or (d) aggregate damages, in excess of the amount paid to That's Why for the licensed product or support service that gave rise to the claim during the prior 12-month period or X-month period in case of a monthly subscription, even if That's Why has been advised of the possibility of such damages. These limitations are independent from all other provisions of these Terms of Service and shall apply notwithstanding the failure of any remedy provided herein.
11. Control of Proceedings
11.1. The Licensee shall forthwith inform That's Why in writing about the existence and substance of any legal action based on the allegation that the Software infringes any intellectual or industrial property right of any third party and leave the handling of the case entirely to That's Why, including making a settlement.
12. Ownership & Confidentiality
12.1. Price offers, studies, projects, invoices, documents, software code, interpretations, arrangements, ideas, etc., regardless of the techniques used, shall remain the exclusive property of That's Why and shall under no circumstances be communicated to third parties, in full or in part, without the prior written permission of That's Why. Reprinting or copying of the Software in any form whatsoever and using any process whatsoever, constitutes an act of forgery and/or unfair competition, if carried out without the prior written permission of That's Why.
12.2. Each party to the Terms of Service acknowledges that all knowledge and information made available in connection with the performance of the obligations of both Parties under the Terms of Service, including, but not limited to, any information relating to customers, prices, operations, procedures and products, are trade secrets and confidential and proprietary information.
12.3. Both Parties engage not to disclose or permit any knowledge, information, extension or renewal during the period of the Terms of Service and after a period of three years after its expiration or termination, to any person, firm or corporation without the prior written consent of the other Party.
13. Publicity & Testimonials
13.1. The Licensee explicitly consents to the use of its trading name within any promotional material to be published by That's Why in the future. Such promotional material will not contain any Confidential Information and shall be limited to reference to the fact that That's Why has developed the Software license of the Licensee.
13.2. The Licensee agrees to provide a testimonial to the developer for use in promotional material.
13.3. If That's Why wishes to use the Licensee’s business cases for promotional purposes, it will ask Licensee’s permission to do so. Such permission shall not be denied for other than serious reasons.
14. Third Party Licenses
14.1. Certain components bundled with the Software may be provided under third party licenses and may be subject to other terms and conditions as those of the present Terms of Service.
Licensee shall be required to obtain for itself all licenses for third party software not included within the Software. That's Why does not assume any responsibility in case of infringement of such third party license Terms of Service by Licensee.
15. Applicable Law – Competent Court
15.1. The Terms of Service shall be governed by and interpreted in accordance with the laws of The Netherlands.
15.2. In case a dispute should arise between Parties concerning the creation, execution and interpretation of the Terms of Service, the competent tribunals and courts of Amsterdam have exclusive jurisdiction.
16. Entire Terms of Service – Severability
16.1. The present Terms of Service constitute the final, complete and exclusive written expression of the intentions and Terms of Service of Parties hereto and shall supersede all previous communications, representations, Terms of Services, promises or statements, either oral or written, by or between either Party.
16.2. If a provision of these Terms of Service is or becomes illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the validity or enforceability of any other provision of these Terms of Service.
17. Force Majeure
17.1. Neither Party shall be liable for failure or delay on its part in performance of any of its obligations or for any loss, charge or damage suffered by the other Party if such fact shall be the result of or arising out of circumstances of Force Majeure character such as fire, natural disaster, intervention by public authorities or any other cause beyond the control of the signatories; and if such fact has been notified in writing by the signatory claiming Force Majeure promptly to the other upon occurrence.
18. General Terms and modifications
18.1. The present Terms of Service shall supersede both parties general terms of Terms of Service insofar that these are contrary to any of the articles of the present Terms of Service.
18.2. Unless specifically provided otherwise, each right and remedy in these Terms of Service is in addition to any other right or remedy, at law or in equity. Licensee agrees that, in the event of any breach or threatened breach, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.
18.3. The parties shall be independent contractors under these Terms of Service, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
18.4. Each Party recognizes and agrees that the warranty disclaimers and liability and remedy limitations are material bargained-for bases of these Terms of Service and that they have been taken into account by each party and reflected in determining the consideration to be given by each party hereunder and in the decision to enter into these Terms of Service.
18.5. Licensee acknowledges that (a) Licensee has read and understands these Terms of Service, (b) it has had an opportunity to have its legal counsel review these Terms of Service, (c) these Terms of Service has the same force and effect as a signed Terms of Service, (d) That's Why requires identification of the Licensee before issuing this license and (e) issuance of this license does not constitute general publication of the That's Why Software or any other Confidential Information.