ACCESS SERVICE AGREEMENT
This Access Service Agreement (this “Agreement”), effective as of the date of execution of the Proposal (as defined below) (the “Effective Date”), is by and between BIGTIME SOFTWARE, INC., (“BigTime”) and the customer identified in any Proposal referencing this Agreement (“Customer”). The parties hereby agree as follows:
IF CUSTOMER IS CONSIDERING THIS AGREEMENT AND THE PURCHASE OF THE SERVICE ONLINE, THEN BY SUBSCRIBING TO THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN CUSTOMER MUST DECLINE TO SUBSCRIBE OR TERMINATE THEIR SUBSCRIPTION AND CUSTOMER MAY NOT USE OR ACCESS THE SERVICE.
2.1 “Affiliate” means, with respect to a party, any entity that controls, is controlled by, or is under common control with such party.
2.2 “Background Materials” means all intellectual property and proprietary rights of BigTime (including ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, copyrights, patents, trademarks, service marks, trade dress, trade secrets, and other technologies and information) that are used by BigTime in providing the Service and Results (including any correction, improvement, extension, or other modification to the Service or to any of the foregoing intellectual property or proprietary rights made, created, conceived, or developed by or for BigTime, including at Customer’s request or during the performance of Professional Services during the Term (as defined in Section 7.1)).
2.3 “Content” means the audio and visual information, Documentation, software, products, and services contained in, or made available to Customer in the course of using, the Service.
2.4 “Customer Data” means all electronic data or information submitted to and stored in the Service by or on behalf of Customer’s Representatives or other users.
2.5 “Documentation” means the user guide, help information, and other documentation regarding the Service that is provided by BigTime to Customer in electronic or other form.
2.6 “BigTime Property” means, collectively, the Service, Documentation, Content, Compiled Data (as defined in Section 6.5), and Reports (as defined in Section 6.5).
2.7 “Representatives” means Customer’s employees, agents, contractors, suppliers, customers, and other third parties authorized by Customer to access the Service for Customer’s benefit.
2.8 “Results” means any results, reports, analyses, or other work product resulting from the Service that are (a) delivered to Customer by BigTime through the Service, and (b) based solely on the Customer Data. For the sake of clarity, Results shall expressly exclude all BigTime Property.
2.9 “Service” means BigTime’s online business application suite and modules, as further described in the applicable Documentation, that Customer subscribes to pursuant to any Proposal entered into between the parties, including associated offline components, as may be updated from time to time. The Service expressly excludes any and all Third-Party Integrations.
2.10 “Third-Party Integrations” means integrations, applications, services, or implementation, customization or other consulting services related thereto, that interoperate with the Service and are provided by a third party, as further described in Section 3.9.
3.1 Setup. Subject to all terms and conditions of this Agreement, BigTime will provide Customer with access to the Service. Each party will provide the other party with reasonable cooperation, assistance, information, and access as may be necessary to initiate Customer’s use of the Service (including implementing any interface or transaction logic to which both parties agree). As part of the account configuration and user training process, Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer may use the administrative user name and password to create subaccounts for its Representatives (each with unique login IDs and passwords). Customer shall be responsible for the acts and omissions of any person who accesses the Service using passwords or access procedures provided to or created by Customer. BigTime reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement.
3.2 Access Grant. Subject to all terms and conditions of this Agreement, BigTime grants Customer a nonexclusive, nontransferable, and nonsublicensable right and license to access and use the Service through a web-based interface, in accordance with the Documentation and solely for Customer’s internal business purposes,. The Service is made available to Customer solely on a hosted basis by or on behalf of BigTime, and nothing in this Agreement shall be construed to grant Customer any right to receive any copy of any software underlying the Service. Customer’s access and use of the Service shall comply with all other conditions set forth in the applicable Proposal (such as, for example, any requirements regarding data formats, number of permitted users, or prohibited uses).
3.3 Representatives. Customer may grant access to the Service to the number of Representatives as set forth on the applicable Proposal. Each Representative may access and use the Service (a) solely in accordance with the terms of this Agreement, and, (b) when applicable, through a unique and secure username and password. The Service allows Customer to grant different levels of access to Customer Data, to different Representatives, as described in more detail in the Proposal. It is Customer’s responsibility to designate the applicable access to be granted to each Representative. Customer shall be responsible for ensuring that all of its Representatives comply with the terms and conditions of this Agreement, to the extent applicable to Representatives. Except for Customer’s system administrators where reasonably necessary for administrative or security purposes, no Representative may use the username/user identification or password of any other Representative.
3.4 Customer Data. Customer hereby grants BigTime a nonexclusive and royalty-free right and license to access, copy, process and use the Customer Data, as reasonably necessary to provide the Service to Customer and as otherwise expressly permitted herein. Customer acknowledges and agrees that (a) the Service depends on the availability of the Customer Data, and (b) BigTime has no obligation to verify the accuracy or completeness of any Customer Data. In addition, to the extent Customer uses the Service to store or process payment card information, Customer represents and warrants that its use of the Service for such purposes will at all times comply with applicable Payment Card Industry Data Security Standards (PCI DSS) requirements, and that it shall only store payment card information in the Service’s designated encrypted fields for such data. Customer acknowledges and agrees that it may be required to enter into a separate agreement and/or agree to separate terms and conditions with BigTime’s designated third-party payment processor prior to entering or storing any payment card information in the Service.
3.5 Customer Systems. Customer is solely responsible for providing and maintaining all equipment, modems, servers, devices, storage, software, databases, network and communications equipment, and ancillary services needed to connect to, access, or otherwise use the Service at its facility (collectively, “Customer Systems”). Customer shall ensure that Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation. For the sake of clarity, in no event will Customer Systems include any BigTime Property.
(a) Customer shall use the Service only in accordance with the terms of this Agreement and shall abide by all applicable local, state, national, and foreign laws and regulations in connection with Customer’s use thereof, including those related to data protection and privacy, international communications, and the transmission of technical or personal data. Customer is responsible for all activity occurring under its and its Representatives’ accounts and shall notify BigTime immediately upon becoming aware of any unauthorized use of any password or account or any other known or suspected breach of security
(b) Except as otherwise expressly permitted in this Agreement, Customer shall not, and shall not permit any of its Representatives or any other third party to, directly or indirectly: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, time-share, use in any service bureau arrangement, distribute, or otherwise commercially exploit or make available to any third party any BigTime Property in any way; (ii) disassemble, decompile, reverse engineer, or otherwise attempt to discover any source code, algorithms, or trade secrets underlying the Service; (iii) access or use the Service (A) in any manner that abuses or violates the privacy or property rights of others, (B) to build a competitive product or service, (C) to build a product using similar ideas, features, functions, or graphics of the Service or other BigTime Property, (D) to copy any ideas, features, functions, or graphics of the Service or other BigTime Property (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), or (E) for purposes of monitoring the availability, performance, or functionality of the Service, or for any other benchmarking or competitive purposes; (iv) alter, remove, or obscure any copyright or attribution notices, proprietary markings, trademarks, or trade names (whether of BigTime or its third-party licensors) from the Service or other BigTime Property; (v) adapt, combine, translate, create derivative works of, or otherwise modify any BigTime Property; (vi) create Internet “links” to any BigTime Property or “frame” or “mirror” any BigTime Property on any other server or wireless or Internet-based device; (vii) interfere with or disrupt the integrity or performance of the Service or any data contained therein; (viii) circumvent, disable, or interfere with any security-related features of the Service; (ix) use the Service to: (w) send “spam” or otherwise duplicative or unsolicited messages in violation of applicable laws; (x) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material; (y) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; or (z) store, maintain, process, or transmit any protected health information, or otherwise use the Service in a manner that would require BigTime or the Service to be compliant with the Health Insurance Portability and Accountability Act, as amended (HIPAA); or (ix) use or allow the transmission, transfer, export, re-export, or other transfer of the Service or any portion thereof in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction. Any noncompliance with this Section 3.6 may result in immediate termination of this Agreement by BigTime.
3.7 Support. As part of the Service, BigTime will provide Customer with Documentation and other online resources to assist Customer in its use of the Service. In addition, BigTime will use commercially reasonable efforts to provide Customer with technical support and updates for the Service (“Support Services”). The level of Support Services to be provided to Customer is dependent on the subscription plan purchased by Customer.. Customer acknowledges and agrees that BigTime may charge additional fees, in accordance with its then-current policies, for any Support Services provided as a result of problems, errors, or inquiries caused by or resulting from any Customer Data or Customer Systems.
3.8 Other Services. From time to time, Customer may request, and BigTime may agree to provide, certain custom development, consulting, training, or other professional services as mutually agreed (“Professional Services”). The terms and conditions of any such arrangement for Professional Services shall be set forth in separate statements of work executed by the parties (each, a “Statement of Work”), each of which shall be governed by the terms of this Agreement. Unless otherwise expressly set forth in the applicable Statement of Work, all software, technology, documentation, materials, and other work product, and all intellectual property rights embodied therein, that are created by BigTime, in whole or in part, during the performance of Professional Services shall be owned solely and exclusively by BigTime.
3.9 Third-Party Integrations. BigTime and its third-party providers may from time to time offer Customer Third-Party Integrations that interoperate with the Service. Any procurement of such Third-Party Applications by Customer shall be as set forth in a Proposal. Except as expressly set forth in the Proposal, BigTime does not make any representation or warranty regarding any such Third-Party Integrations, regardless of whether or not such Third-Party Integrations are provided by a third party that is a member of a BigTime partner program or otherwise designated by BigTime as “Built For BigTime,” “certified,” “approved” or “recommended.” Any procurement by Customer of such Third-Party Integrations is solely between Customer and the applicable third-party provider. Customer may not use Third-Party Integrations to enter or submit transactions to be processed or stored in the Service, unless Customer has procured the applicable subscription to the Service for such use and access.
Customer may be required to agree to the third-party provider’s terms of service before accessing or using a Third-Party Integration. If Customer installs or enables Third-Party Integrations for use with the Service, Customer agrees that BigTime may enable the third-party providers to access Customer Data as required for the interoperation of the Third-Party Integrations with the Service. BigTime shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Integrations or the applicable third-party providers.
3.10 Service Levels. During the Term, BigTime will use commercially reasonable efforts to meet the service level specified in the “Service Level Agreement” for BigTime IQ Customers only, located at www.bigtime.net/service-level-agreement, or such other URL as specified by BigTime. If BigTime fails to meet the service level, Customer’s sole and exclusive remedy is to receive a credit for the Service period in accordance with the terms set forth in the Service Level Agreement.
3.11 Security. BigTime shall implement and maintain commercially reasonable technical, administrative, and physical safeguards designed to protect the Service and Customer Data against any unauthorized access, use, disclose, damage, loss, or destruction. A further description of such safeguards can be found at https://f.hubspotusercontent20.net/hubfs/19576929/bigtime_security_guide.pdf.
3.12 Service Modifications. Customer acknowledges and agrees that BigTime may make modifications to the Service from time to time and will use commercially reasonable efforts to notify Customer prior to any material modifications. BigTime shall not be liable to Customer nor to any third party for any modification of the Service.
4.1 Payment Terms.
(a) Customer shall pay a fee for the right to use the Service (the “Service Fee”) as set forth in the applicable Proposal. Customer shall pay the Service Fee in accordance with the payment terms outlined in such Proposal. Notwithstanding the foregoing, during each year of the Term, BigTime Software reserves the right to increase the Service Fee accordingly upon notice to Customer. The Company may increase the total subscription or the monthly per user price up to 10% plus the percentage of the annual increase in the US Consumer Price Index or up to BigTime’s current list price.
(b) All payment obligations are non-cancelable and, except where expressly stated otherwise in this Agreement, all amounts paid are nonrefundable. Customer must provide BigTime with valid credit card or other approved payment method as a condition to entering into this Agreement. Payments shall be made in US dollars at BigTime’s address (or to an account specified by BigTime) in full, without set-off, counterclaim, or deduction. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less.
(c) In addition to any other rights granted to BigTime herein, BigTime reserves the right to suspend or terminate this Agreement and/or Customer’s access to the Service if Customer fails to pay any invoiced amount when due. If Customer or BigTime initiates termination of this Agreement for any reason, Customer shall pay any remaining balance due on Customer’s account, including any Service Fee for use of or access to the Service through the effective date of such termination. Customer acknowledges and agrees that BigTime may bill Customer for such unpaid fees.
4.2 Taxes. All payments required by this Agreement are exclusive of federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including sales taxes, use taxes, and value added taxes), and Customer shall bear and be solely responsible for the payment of all such charges, excluding taxes based upon BigTime’s net income. All amounts payable by Customer hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Customer’s payment of such amounts to BigTime. If BigTime has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.2, BigTime will invoice Customer and Customer will pay that amount unless Customer provides BigTime with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.1 Scope. “Confidential Information” means any and all financial, business, technical, or other non-public information disclosed by or made available by one party to the other party in relation to this Agreement. Without limitation, any proprietary aspects of the Service, the terms of the Proposal, and pricing information are BigTime’s Confidential Information.
5.2 Confidentiality. Except for the specific rights granted by this Agreement, neither party (as “Recipient”) may, at any time during or after the Term, use, copy, or disclose any of the other party’s (as “Discloser”) Confidential Information without Discloser’s written consent, and Recipient shall safeguard Discloser’s Confidential Information with at least the same degree of care (but in no event less than reasonable care) as it uses to protect its own Confidential Information, including by ensuring that Recipient’s personnel and agents with access to Discloser’s Confidential Information (a) have a need to know for the purposes of this Agreement, and (b) are bound by confidentiality obligations at least as restrictive as those set forth herein. The foregoing obligations shall not apply to any Confidential Information that Recipient can demonstrate is (i) already known by it without restriction, (ii) rightfully furnished to it without restriction by a third party not in breach of any obligation to Discloser, (iii) generally available to the public without breach of this Agreement, or (iv) independently developed by it without reference to or use of any of Discloser’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its personnel and agents, as applicable. Promptly after any expiration or termination of this Agreement (or at Discloser’s request at any other time), Recipient shall (A) return all of Discloser’s tangible Confidential Information, (B) permanently erase all Confidential Information from any storage media, and (C) destroy all information, records, copies, summaries, analyses, and materials developed therefrom (other than Compiled Data and Reports in BigTime’s possession). Each party may disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, however, that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry.
5.3 Compelled Disclosure. Nothing herein shall prevent a party from disclosing this Agreement or any of the other party’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement, or similar requirement or investigation; provided, however, that prior to any such disclosure, Recipient shall use reasonable efforts to (a) promptly notify Discloser in writing of such requirement to disclose (if permitted), and (b) cooperate with Discloser, at Discloser’s expense, in protecting against or minimizing any such disclosure or obtaining a protective order.
6.1 Results. Unless otherwise agreed by the parties and subject to BigTime’s rights to Compiled Data and Reports as set forth in Section 6.5, (a) Customer shall own all right, title, and interest (including all intellectual property and other proprietary rights) in and to the Results, (b) Results are works made for hire to the extent allowed by law, and (c) BigTime will make all assignments to Customer reasonably necessary to accomplish the foregoing ownership. Unless expressly specified otherwise in this Agreement or the Proposal, BigTime has no obligation to store any Results beyond the expiration or termination of this Agreement.
6.2 Background Materials. To the extent that BigTime includes any Background Materials in the Results, then subject to all terms and conditions of this Agreement, BigTime agrees to grant Customer a nonexclusive, nontransferable, royalty-free right and license (without the right to sublicense) to use such Background Materials as embodied in the applicable Results, solely for Customer’s internal business purposes.
6.3 Customer Data and Customer Systems. Except for the limited rights and licenses expressly granted hereunder, Customer shall retain all right, title, and interest (including all intellectual property and proprietary rights embodied therein) in and to the Customer Data and Customer Systems.
6.4 BigTime Property. Except for the limited rights and licenses expressly granted hereunder, BigTime (and its licensors, as applicable) shall retain all right, title, and interest (including all intellectual property and proprietary rights embodied therein) in and to the BigTime Property and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any of its Representatives relating to any BigTime Property. This Agreement is not a sale and does not convey to Customer any rights of ownership in, or related to, any BigTime Property. BigTime’s name, logo, and the product names associated with the Service are trademarks of BigTime or third parties, and no right or license is granted to use them.
6.5 General Learning; Aggregate Data. Customer acknowledges and agrees that BigTime is free to disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) related to the Results or acquired during provision of the Service (including that which it could have acquired performing the same or similar services for another customer). Customer acknowledges and agrees that (a) BigTime shall have the right to compile and analyze any and all Customer Data and Results (such compilations and analyses, collectively, “Compiled Data”) and to prepare reports, studies, analyses, and other work product resulting from such Compiled Data on an anonymous basis (collectively, “Reports”), and (b) subject to Customer’s ownership rights in the underlying Customer Data and Results, BigTime shall have exclusive ownership rights to, and the exclusive right to use, such Compiled Data and Reports for any purpose, including advertising, marketing, and promotion of networking opportunities to other customers and prospective customers of the Service; provided, however, that BigTime shall not use or distribute Compiled Data or Reports in any manner that identifies or is reasonably identifiable to Customer or any Customer Data, without first obtaining the prior written consent of Customer.
TERM AND TERMINATION.
7.1 Term. This Agreement shall commence on the Effective Date and continue in effect for the amount of time identified in the applicable Proposal (the “Initial Term”). Thereafter, this Agreement will be extended automatically for: (i) successive periods equivalent in length to the Initial Term, if the Initial Term is less than one (1) year, or (ii) successive one (1) year periods, if the Initial Term is one (1) year or longer (each, a “Renewal Term”, and the Initial Term and all Renewal Terms, together, the “Term”), unless Customer cancels their account at least thirty (30) days prior to the end of the then-current term. In addition, BigTime may cancel this Agreement effective upon expiration of the then-current term by providing Customer written notice of non-renewal at least ninety (90) days prior thereto.
7.2 Termination. Except where expressly provided otherwise in this Agreement, this Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement (including any Proposal) and fails to cure such breach within thirty (30) days (or ten (10) days in the case of Customer’s failure to pay any invoiced amount when due) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates, or otherwise fails to operate in the ordinary course. Except with respect to termination by Customer pursuant to clause (a) or (b) of this Section 7.2, or as otherwise expressly provided in this Agreement, in no event will any termination of this Agreement relieve Customer of its payment obligations with respect to Service Fees for the then-current Term.
7.3 Effects of Termination. Upon any expiration or termination of this Agreement: (a) BigTime shall deactivate all user names and passwords and cease providing the Service to Customer, and Customer and its Representatives shall immediately cease use of the Service; (b) except where terminated by Customer pursuant to Section 7.2, or where otherwise expressly provided in this Agreement, BigTime will invoice Customer for, and Customer shall promptly pay, all outstanding Service Fees owed to BigTime for the then-current Term; and (c) all other rights, obligations, and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including all payment obligations) and all remedies for breach of this Agreement shall survive, and (ii) the provisions of Sections 4 (Payments), 5 (Confidentiality), 6 (Proprietary Rights), 8 (Warranties and Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 11 (General Provisions), and this Section 7.3, shall survive.
WARRANTIES AND DISCLAIMERS.
8.1 Customer Data. Customer represents and warrants that: (i) it owns all right, title, and interest in and to, or otherwise possesses sufficient license rights in, the Customer Data as may be necessary to permit the use thereof contemplated under this Agreement; and (ii) it has obtained and shall at all times maintain any and all consents, approvals, permissions, authorizations, and rights necessary to provide the Customer Data to BigTime under this Agreement. Customer bears all responsibility and liability for (a) the accuracy, completeness, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and (b) BigTime’s access to, possession, and use of Customer Data as permitted herein. Upon any termination of this Agreement, and provided that Customer has paid to BigTime all outstanding Service Fees and amounts owed to BigTime hereunder, BigTime will make available to Customer a file of the Customer Data within thirty (30) days of termination if Customer so requests at or around the time of termination. Payment of any such fee must be received prior to BigTime providing any such files. After such thirty (30) day period, BigTime will have no further obligation to retain or export any Customer Data or Results, and may remove or discard Customer Data and Results in accordance with BigTime’s data retention policies without notice to Customer.
8.2 Service. During the Term, BigTime warrants that the Service will perform in all material respects in accordance with the Documentation when used in accordance with the terms of this Agreement. Customer’s sole and exclusive remedy, and BigTime’s sole liability, for any breach by BigTime of the warranty provided in this Section 8.2 shall be the repair or replacement of the nonconforming Service, at BigTime’s sole expense, as described herein. BigTime shall use commercially reasonable efforts to deliver to Customer replacement Service, a work-around or an error/bug fix as may be necessary to correct the nonconformity. If BigTime is unable to, or determines that it is not commercially reasonable to, correct such nonconformity within thirty (30) days after receipt of notice of such nonconformity from Customer, then Customer may terminate this Agreement with a minimum of thirty (30) days’ written notice, in which event BigTime will issue to Customer a prorated refund of any pre-paid but unused Service Fees.
8.3 Professional Services. BigTime represents and warrants that the Professional Services shall be performed in a professional and workmanlike manner consistent with the standard of care exercised by BigTime in performing similar services for other clients. Customer’s sole and exclusive remedy for breach of this warranty shall be re-performance of the nonconforming Professional Services at no additional charge to Customer, or if the applicable Professional Services cannot be successfully re-performed in accordance with this warranty, then BigTime shall refund all amounts paid by Customer for the non-conforming Professional Services, provided that BigTime must have received written notice of the nonconformity from Customer no later than thirty (30) days after initial completion of such Professional Services.
8.4 No Professional Advice. In the course of using the Service, BigTime may provide Customer with general advice regarding the use of its products and other areas pertaining to the Service provided. However, BigTime does not and cannot render legal, tax, accounting, or other professional advice, and Customer must rely on their professional advisors alone for such advice.
(a) EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 8.2 AND 8.3, THE BIGTIME PROPERTY AND RESULTS ARE PROVIDED ‘AS-IS’, ‘AS AVAILABLE’, AND WITHOUT ANY OTHER WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, NEITHER BIGTIME NOR ANY OF ITS LICENSORS MAKES ANY REPRESENTATION OR WARRANTY (I) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (II) THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR BUG-FREE, (III) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICE, OR (IV) THAT ANY ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, BIGTIME HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE IS A TOOL TO BE USED BY CUSTOMER AND ITS REPRESENTATIVES IN THE COURSE OF EXERCISING THEIR PROFESSIONAL JUDGMENT. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BIGTIME IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OUTSIDE OF ITS REASONABLE CONTROL. NO BIGTIME AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION, OR ADDITION TO THIS LIMITATION AND EXCLUSION OF WARRANTIES IN THIS AGREEMENT.
(c) Without limiting any of the foregoing, BigTime shall not be responsible or liable for any non-conformities of the Service with the Documentation that are caused by or otherwise result from: (i) any act or omission of Customer or its Representatives, including any non-compliance with the terms of this Agreement or any delays in their performance or cooperation with respect to the obligations set forth herein; (ii) Customer Systems; (iii) any Customer Data that BigTime receives from Customer, any of its Representatives, or other third party sources, including with respect to such data’s accuracy or completeness; or (iv) any satellite, telecommunications, network, or other equipment or services outside of BigTime’s facilities or control. In addition, except to the extent caused by BigTime’s breach of its obligations under this Agreement, gross negligence or willful misconduct, BigTime disclaims any liability for any unauthorized access to, or interception of, any Customer Data (including any encrypted data) or any other breach of security or hacking by third parties related to either of the foregoing. Customer acknowledges and agrees that BigTime shall have no responsibility or liability for any damages arising in connection with access to or use of the Service by Customer, any Representative or any other party, other than as expressly set forth in this Agreement.
9.1 Infringement. Except as provided below, BigTime agrees to (a) defend Customer against any demand, claim, action, or suit by a third party that Customer’s use of the Service in accordance with this Agreement infringes any US patent or copyright or misappropriates any trade secret of such third party, and (b) indemnify Customer for settlement amounts or damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such claim; provided, however, that (i) Customer promptly provides BigTime written notice thereof and, at BigTime’s expense, reasonable cooperation, information, and assistance in connection therewith, and (ii) BigTime shall have sole control and authority to defend, settle, or compromise such claim. If the Service becomes or, in BigTime’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, BigTime may, at its option and expense, (A) obtain for Customer the right to continue using the Service, or (B) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If, in BigTime’s opinion, clauses (A) and (B) are not reasonably available to BigTime, then BigTime may terminate this Agreement immediately upon written notice to Customer and refund to Customer any prepaid Service Fees, pro-rated for the remainder of the prepaid period.
9.2 Exclusions. BigTime shall have no liability or obligation to indemnify Customer hereunder with respect to any claim based upon (a) any use of the BigTime Property not strictly in accordance with this Agreement, (b) modifications or combinations of the BigTime Property not provided or authorized by BigTime, (c) any portion of the BigTime Property that implements Customer’s specific requirements, (d) Customer Data or Customer Systems, (e) Customer’s continuance of allegedly infringing activity after being notified thereof, or (f) Customer’s continued use of any version of the BigTime Property after being provided modifications that would have avoided the alleged infringement.
9.3 Entire Liability. The foregoing states the entire liability of BigTime, and Customer’s sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or any part thereof or by its use or operation.
9.4 Indemnification by Customer. Customer shall indemnify, defend, and hold harmless BigTime, its Affiliates, and its and their respective officers, directors, shareholders, employees, contractors, agents, successors, and assigns from and against any damage, cost, liability, loss, expense, claim, suit, action, or other proceeding, to the extent based on or arising in connection with Customer’s or any of its Representative’s: (a) use of the Service in a manner not authorized by this Agreement, or in violation of applicable law; (b) Customer Data, or BigTime’s use thereof in accordance with this Agreement, including any claim that such use infringes, misappropriates, or otherwise violates any third party rights; (c) breach or violation of any of Customer’s representations, warranties, or covenants under this Agreement; or (d) negligence or willful misconduct in connection with this Agreement.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR (I) CUSTOMER’S BREACH OF SECTION 3.6 (RESTRICTIONS), (II) CUSTOMER’S LIABILITY FOR PAYMENT OF SERVICE FEES UNDER THIS AGREEMENT, (III) EITHER PARTY’S BREACH OF SECTIONS 5 (CONFIDENTIALITY) OR 6 (PROPRIETARY RIGHTS), (IV) BIGTIME’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS PURSUANT TO SECTION 9.1 (INFRINGEMENT), (V) CUSTOMER’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 9.4 (INDEMNIFICATION BY CUSTOMER), OR (VI) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY (OR, WITH RESPECT TO BIGTIME, ITS LICENSORS OR SUPPLIERS) BE LIABLE TO THE OTHER PARTY (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH THE OTHER PARTY OR ITS REPRESENTATIVES) CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), FOR ANY (A) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF BUSINESS, REVENUES, PROFITS, DATA, AND GOODWILL, AND COST OF PROCURING SUBSTITUTE GOODS; OR (B) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO BIGTIME HEREUNDER WITH RESPECT TO THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE PRECEDING TWELVE (12) MONTH PERIOD, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
11.2 Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any party other than the parties to this Agreement.
11.3 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. The exclusive forum and venue for all legal or equitable actions or proceedings arising out of or relating to this Agreement shall be in a federal or state located in Cook County, Illinois, and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts and waives any claim that such courts do not constitute a convenient or appropriate venue for any such actions or proceedings. EACH PARTY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
11.4 Other Countries. If Customer uses the Service from outside the United States of America or the European Union, Customer does so at its own risk and is solely responsible for compliance with all applicable local laws and regulations, including export and import regulations of other countries. Any use of the Service in violation of United States or European Union (including European Union Member States) law is prohibited. In addition, in the event Customer’s use of the Service requires BigTime to process any personal data pertaining to an individual located in the European Union, Customer hereby agrees to enter into BigTime’s form data processing agreement prior to BigTime processing any such data. Any data processing agreement entered into between the parties is hereby incorporated into this Agreement by this reference.
11.5 Remedies. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach by (a) Customer of Section 3.6 (Restrictions), or (b) either party of Sections 5 (Confidentiality) or 6 (Proprietary Rights), the non-breaching party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non- breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
11.6 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to acts of God, acts or decisions of governmental authorities or regulatory agencies, riots, strikes, acts of war, epidemics, pandemics, fire, flood, communication line or equipment failures, power failures, or any other cause beyond its reasonable control (“Force Majeure”), the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
11.7 Publicity. Promptly after the Effective Date, the parties may issue a mutually agreeable press release (such agreement not to be unreasonably delayed or withheld) regarding the arrangements under this Agreement. Customer hereby consents to inclusion of its name and logos in customer lists (including on BigTime’s website) that may be published as part of BigTime’s marketing and promotional efforts.
11.8 Third-Party Interactions. During use of the Service, Customer may enter into correspondence with, or purchase goods or services from, BigTime’s third-party providers and partners showing their products or services through the Service. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between Customer and the applicable third party. BigTime and its licensors shall have no liability, obligation, or responsibility for any such correspondence or purchase between Customer and any such third party, or for any content, products, or other materials made available by such third parties. Customer acknowledges and agrees that certain third-party providers of ancillary software, hardware, or services may require Customer’s agreement to additional or different license or other terms prior to Customer’s use of or access to such software, hardware, or services.
11.9 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile or e-mail, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified herein, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
11.10 Assignment. This Agreement and the rights and obligations hereunder may not be transferred or assigned, in whole or in part, by Customer without BigTime’s prior written consent (which shall not be unreasonably withheld); provided, however, without consent, Customer may assign this Agreement to, and this Agreement shall be assigned to and assumed by, any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation, or otherwise). Any assignment in violation of this Section 11.10 shall be deemed null and void ab initio. BigTime may freely assign this Agreement, and may, in its sole discretion, use contractors and other third-party service providers in providing the Service, provided that BigTime shall remain responsible for any such contractors’ and third-party service providers’ compliance with this Agreement. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties hereto.
11.11 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will deem either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.
11.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together shall constitute one and the same Agreement.