TERMS OF SERVICE FOR BIGTIME APPLICATIONS
Effective Date: October 1, 2017
ATTENTION! THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) WILL BE LEGALLY BINDING ON ALL CUSTOMERS. THESE TERMS OF SERVICE ARE A LEGAL CONTRACT BETWEEN BIGTIME SOFTWARE USA, INC. (“BIGTIME”) AND EVERY CUSTOMER OF BIGTIME GOVERNING THE USE OF SERVICE ALL SOFTWARE HOSTED BY ON OR BEHALF OF BIGTIME AND THE SERVICES OUTLINED IN THESE TERMS OF SERVICE. BIGTIME IS UNWILLING TO LICENSE OR OTHERWISE AUTHORIZE YOUR USE OF THE SOFTWARE LICENSED OR THE OTHER SERVICES PROVIDED HEREIN EXCEPT ON THE TERMS CONTAINED IN THESE TERMS OF SERVICE. YOUR USE OF THE SERVICE SHALL CONSTITUTE AN ACCEPTANCE BY YOU OF THE TERMS OF THESE TERMS OF SERVICE. IF YOU DO NOT WISH TO AGREE TO THE TERMS OF THESE TERMS OF SERVICE, DISCONTINUE ALL USE OF THE SERVICE.
THESE TERMS OF SERVICE ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF BIGTIME’S OBLIGATIONS AND RESPONSIBILITIES TO CUSTOMER, AS LICENSEE OF THE SOFTWARE AND USER OF THE BIGTIME SERVICES, AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF BIGTIME RELATING TO THE SUBJECT.
CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE.
1.1 “Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party.
1.2 “Customer Data” means all electronic data or information submitted to and stored in the Service by Users.
1.3 “Electronic Communications” means any electronic transfer through the Service, in whole or in part, of signs, signals, text, images, sounds, data, or intelligence of any nature.
1.4 “Estimate/Order Form” means a BigTime estimate, renewal notification, or order form in the name of and executed by Customer or its Affiliate, and accepted by BigTime, which specifies the Service and any Support Services to be provided by BigTime.
1.5 “Help Documentation” means the online English language help documentation describing the Service features, including User Guides which may be updated from time to time.
1.6 “Losses” means damages and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorney fees) arising from the indemnification of a party against claims for infringement of a third party’s copyrights or trademarks, or misappropriation of a third party’s trade secrets.
1.7 “Service” means BigTime’s online business application suite and modules as described in the applicable User Guide that are subscribed to by Customer from BigTime in the Estimate/Order Form and any subsequent Estimate/Order Form from time to time, including associated offline components. Third Party Applications are excluded.
1.8 “Support Services” means BigTime’s support services consisting of direct responses to Customer with respect to specific questions and issues related to the Service. The level of Support Services to be provided to Customer is dependent on the subscription plan purchased by Customer. Information on subscription plans and the level of Support Services can be found at www.bigtime.net/support, or at such other URL as specified by BigTime. Support Services do not include general consulting, engineering, implementation, development, training services, and/or other professional services.
1.9 “Term” means the initial term that Customer subscribes for the Service pursuant to the Estimate/Order Form and any renewal term.
1.10 “Third Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than BigTime, as further described in Section 2.4 that interoperate with the Service.
1.11 “Users” means individuals who are authorized by Customer to use the Service pursuant to this Agreement or as otherwise defined, restricted or limited in an Estimate/Order Form or amendment to this Agreement, for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Customer (or by BigTime at Customer’s request). Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.
1.12 “User Guides” mean the online English language user guides for the Service, accessible via login at http://www.bigtime.net (under “Help”), as updated from time to time. Customer acknowledges that Customer has had the opportunity to review the User Guides through a free trial account made available by BigTime.
2. Terms of Service.
2.1 Accuracy of Customer’s Contact Information. Customer shall provide, maintain, and promptly update if appropriate, accurate, current, and complete information on Customer’s legal business name, address, email address, and phone number.
2.2 Users Passwords, Access, and Notification. Customer shall authorize access to, and assign unique passwords and user names for, the number of Users procured by Customer on the Estimate/Order Form. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be permanently reassigned to another User as needed. Customer is responsible for the confidentiality and use of User’s passwords and user names. Customer also is responsible for all Electronic Communications transmitted under Customer’s account. BigTime will act as though any Electronic Communications it receives under Customer’s passwords, user name, or account number have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify BigTime of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s passwords, user names, or Service account numbers.
If Customer was referred to BigTime by a member of a BigTime’s partner programs, Customer hereby authorizes BigTime to provide such member or its successor entity with access to BigTime’s business information related to the procurement and use of the Service pursuant to this Agreement, including but not limited to User names and email addresses, support cases and billing/payment information.
2.3 General Restrictions.
(a) General. Customer agrees:
(1) it is responsible for its Users’ compliance with this Agreement;
(2) its use of the Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Service;
(3) it is responsible for the evaluation, selection and for the results obtained from the Services;
(4) it is responsible for complying with all rules and regulations relating to the Services sent to you by email or other electronic means as they may be amended from time to time;
(5) to use the Services only for processing its business data and in accordance with the terms and conditions of this Agreement;
(6) not to make the Services, or any user name or passwords available to any third party, except as provided in Section 1.11;
(7) to use its best efforts to cooperate with and assist BigTime in identifying and preventing any unauthorized use of the Service or any portion thereof;
(8) not to reverse assemble, reverse compile, or otherwise translate any Service;
(9) not to knowingly use the Services in any way that is unlawful, or harms a BigTime or its other customers, as determined by BigTime, in its sole discretion;
(10) not to purposefully interrupt, or attempt to interrupt, the operation of the Services in any way;
(11) not to restrict, in any way, any third party authorized user from using the Services;
(12) not to attempt to breach the security of the Services;
(13) not to access or attempt to access data belonging to third parties;
(14) to notify BigTime, in writing, as soon as is reasonably possible, if it learns of any actual or threatened infringement or piracy of the Services, or if any infringement or piracy claim is made against Customer by a party other than BigTime in connection with Customer’s use of the Services;
(15) to provide accurate, current and complete information on your legal name, address, email address, phone number, and other information reasonably requested by BigTime, and to keep such information updated;
(16) to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation;
(17) if Customer uses the Service to store or process credit card or social security data, Customer shall ensure its use of the Service for these purposes complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall only store credit card and social security data in the designated encrypted fields for such data
(18) except as permitted by this Agreement, not to copy, reproduce, distribute, republish, display, post, or transmit the Service in any form or by any means;
(19) not to access the Service by any means other than through the interfaces BigTime provides;
(20) not to do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, or secure cookies;
(21) not in any way to express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by BigTime.
(b) Export Regulations. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses, and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition, or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory, or threatening.
(c) HIPAA. Customer agrees that: (i) BigTime is not acting on Customer’s behalf as a Business Associate or subcontractor; (ii) the Service may not be used to store, maintain, process, or transmit protected health information and (iii) the Service will not be used in any manner that would require BigTime or the Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”). In the preceding sentence, the terms “Business Associate,” “subcontractor,” and “protected health information” shall have the meanings prescribed in HIPAA.
2.4 Third Party Applications. BigTime may from time to time offer Third Party Applications. Any procurement of such Third Party Applications by Customer shall be subject to the terms specified in an Estimate/Order Form.
In addition, BigTime or third party providers may offer Third Party Applications through the Service or otherwise related to Customers’ use of the Service. Except as expressly set forth in the Estimate/Order Form, BigTime does not warrant any such Third Party Applications, regardless of whether or not such Third Party Applications 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 Applications or services is solely between Customer and the applicable third party provider. Customer may not use Third Party Applications 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 is required to agree to the third-party provider’s terms of service before accessing or using a Third Party Application. If Customer installs or enables Third Party Applications 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 Applications 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 Applications or third party providers.
2.5 Transmission of Data. Customer agrees to obtain the necessary computer hardware, software, and network capabilities to utilize the Service and to permit BigTime to intercept and store Electronic Communications and Customer Data. Customer further agrees BigTime is not responsible for any Electronic Communications or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of the communications or data across networks not owned or operated by BigTime.
2.6 Service Level. During the Term, the Service will meet the service level specified in the “Service Level Commitment” listed on the BigTime website located at www.bigtime.net/service-level-agreement, or such other URL as specified by BigTime. If the Service fails to achieve the service level, Customer’s sole and exclusive remedy, is a credit for the Service in accordance with the terms set forth in the Service Level Commitment.
2.7 BigTime’s Support Services. As part of the Service, BigTime will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Service.
2.8 Security. BigTime shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data. During the Term, BigTime shall maintain PCI DSS compliance for the portions of the Service that store and process credit card data. Any changes or customizations made to the Service by the Customer or at the Customer’s direction may affect the Customer’s compliance with PCI DSS requirements and Customer shall be solely responsible for ensuring that any such changes are compliant with PCI DSS requirements.
“Confidential Information” means (a) Customer Data, (b) trade secrets, and (c) proprietary, confidential and nonpublic information, including without limitation, marketing plans, know-how, proprietary and technical information, code, documentation, diagrams, strategies, and/or business plans. The following shall not be deemed Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes part of the public domain through no fault of the receiving party; (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third party without restriction; (4) information that was independently developed by employees or contractors of the receiving party who did not have access to, and without use of or reference to, the disclosing party’s Confidential Information; and (5) aggregate data collected or generated by BigTime or on behalf of BigTime regarding BigTime’s products and services that does not contain any personally identifiable or Customer-specific information.
The parties agree to maintain the Confidential Information of the other party in strict confidence and that they will use reasonable commercial efforts (at least the same measure of care used to protect their own confidential and proprietary information) to protect the Confidential Information. Neither party shall disclose the Confidential Information to any third party without (i) the prior expressed written consent of the other party to this Agreement, which consent may be withheld for any reason, and (ii) the prior execution by such third party of an agreement to maintain the confidentiality of the Confidential Information. Without limiting the generality of the foregoing, the parties agree: (a) Not to disclose or permit any other person or entity access to the Confidential Information, except that such disclosure or access shall be permitted to an employee, agent, representative or independent contractor requiring access to the same in the course of his or her employment or services; provided that such employee, agent, representative or independent contractor has previously entered into a written confidentiality agreement including terms as least as restrictive as those contained herein; and (b) to ensure that their employees, agents, representatives and independent contractors are advised of the confidential nature of the Confidential Information, and are precluded from taking any action prohibited under this section.
Notwithstanding anything to the contrary in the previous paragraph, Customer shall use the Confidential Information of BigTime only for the purposes of using the Services during the Term. Customer shall only be permitted to disclose BigTime’s Confidential Information only to those of its employees, who are directly involved in the use of the Service. Additionally, Customer must input credit card information and social security numbers, if any, only in the fields designated for such data in the Service. Nothing in this Agreement will prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
2.10 Ownership of Customer Data. Customer represents and warrants it is the exclusive owner of all title and intellectual property rights in and to the Customer Data., and agrees to permit BigTime to use and store the Customer Data as reasonably required to provide the Services and in compliance with this Agreement. Customer also agrees to permit BigTime and its third-party providers to collect, generate, and use aggregate data, provided that the aggregate data does not include any personally identifiable or Customer-specific information.
2.11 Intellectual Property Rights. BigTime or its licensors are the exclusive owners of all rights, title and interest in and to the Service (including without limitation all intellectual property rights). Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Any rights in the Service or BigTime’s intellectual property not expressly granted herein by BigTime are reserved by BigTime.
BigTime service marks, logos and product and service names are marks of BigTime, (the "BigTime Marks"). Customer shall not display or use the BigTime Marks in any manner without BigTime’s prior written permission.
Customer may not use the trademarks, logos and service marks of Third Party Application providers without the prior written consent of the Third Party Application provider.
Customer agrees BigTime may use any comments or feedback from Customer related to the Service without restriction.
2.12 U.S. Government Rights. The Service is a “commercial item” as that term is defined at FAR 2.101. If Customer or User is a US Federal Government (Government) Executive Agency (as defined in FAR 2.101), BigTime provides the Service, including any related software, technology, technical data, and/or professional services in accordance with the following: (a) if acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement; or (b) if acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative Agency or Federal Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as set forth in this Agreement. If any Federal Executive Agency, Federal Legislative Agency, or Federal Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with BigTime to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
3.1 Warranty of Functionality. BigTime warrants that: (i) the Service will achieve in all material respects the functionality described in the User Guides applicable to the Service procured by Customer, and (ii) such functionality of the Service will not be materially decreased during the then-current subscription term. Customer’s sole and exclusive remedy for BigTime’s breach of this warranty shall be that BigTime shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the User Guides. If BigTime is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for the remaining Term. BigTime shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to [email protected] The warranties set forth in this Section are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the User Guides, the Agreement and applicable law.
3.2 Warranty of No Malicious Code. Each party warrants that it will not introduce viruses, Trojan horses, worms, spyware, or other such malicious code into the Service.
4. Disclaimer of Warranties. SECTIONS 2.6, 3.1 and 3.2 ARE THE SOLE WARRANTIES MADE BY BIGTIME. BIGTIME MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED AND EXCLUDED. WITHOUT LIMITING THE FOREGOING, BIGTIME MAKES NO REPRESENTATION OR WARRANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. BIGTIME DOES NOT REPRESENT OR WARRANT THAT (A) CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, (C) CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING WITHOUT LIMITATION HIPAA, (D) THE SERIVCE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (E) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (F) THE QUALITY OF THE SERVICE, SUPPORT SERVICES, INFORMATION, OR OTHER MATERIAL PROVIDED OR USED IN CONNECTION WITH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (G) ERRORS OR DEFECTS WILL BE CORRECTED, OR (H) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
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.
ANY STATEMENTS, ORAL OR WRITTEN, MADE BY ANY PERSON, INCLUDING EMPLOYEES, AGENTS AND/OR REPRESENTATIVES OF BIGTIME, WHICH ARE INCONSISTENT WITH OR IN CONFLICT WITH THE TERMS OF THIS AGREEMENT WILL NOT BE BINDING UPON BIGTIME UNLESS REDUCED TO WRITING, AND SIGNED AND APPROVED BY AN AUTHORIZED CORPORTE OFFICER OF BIGTIME.
5. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.
THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE AN AMOUNT EQUAL TO THE EQUIVALENT OF TWELVE (12) MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT. NOTWITHSTANDING THE PREVIOUS SENTENCE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THE SECOND PARAGRAPH OF THIS SECTION SHALL NOT APPLY TO: (A) FEES DUE UNDER THIS AGREEMENT; (B) A BREACH OF SECTION 2.3, 2.9 OR 2.11 OF THESE TERMS OF SERVICE; OR (C) EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 6 BELOW.
6.1 Infringement. Subject to the terms and conditions set forth in this Section 6, BigTime shall, at its own expense, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with the Agreement, infringes such third party’s copyrights or trademarks, or misappropriates such third party’s trade secrets and shall indemnify Customer from and against Losses to the extent based upon such a Claim.
BigTime will have no liability for Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after BigTime notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Service not made by BigTime or made by BigTime based on Customer specifications or requirements, (d) use of the Service in combination with any non-BigTime software, application or service, or (e) services offered by Customer or revenue earned by Customer for such services.
If a Claim of infringement as set forth above is brought or threatened, BigTime shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially
feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term.
The rights and remedies granted Customer under this Section 6.1 state BigTime’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
6.2 Customer’s Indemnity. Subject to the terms and conditions set forth in this Section 6, Customer shall, at its own expense, defend BigTime from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks, or any use thereof, infringes the copyright or trademark or misappropriates the trade secrets of a third party, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 2.3 above and shall indemnify BigTime from and against liability for any Losses to the extent based upon such Claims.
6.3 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6 are expressly conditioned upon the indemnified party’s compliance with this Section 6.3 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 6 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7.1 Suspension for Delinquent Account. BigTime reserves the right to suspend Customer’s and any Customer Affiliates’ access to and use of the Service, Support Services, or both, if any payment is due but unpaid. Before suspending access or use, BigTime shall provide Customer two (2) delinquency notices, with at least thirty (30) days having passed since the transmission of the first notice and seven (7) days having passed since the transmission of the second notice. Customer agrees that BigTime shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section.
7.2 Suspension for Ongoing Harm. BigTime may, with reasonably contemporaneous telephonic notice to Customer, suspend access to the Service if BigTime reasonably concludes that Customer is using the Service to engage in denial of service attacks, spamming, or illegal activity, or Customer use of the Service is causing immediate, material and ongoing harm to BigTime or others. In the extraordinary event that BigTime suspends access to the Service, BigTime will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with Customer to resolve the issues causing the suspension of Service. Customer agrees that BigTime shall not be liable to Customer nor to any third party for any suspension of the Service under the circumstances described in this Section.
7.3 Termination for Cause, Expiration. Either party may immediately terminate this Agreement and all Estimates/Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail to provide the alleged breaching party a meaningful opportunity to cure the alleged breach (“Notice”). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If the Agreement is terminated by Customer for any reason other than a termination expressly permitted by the Agreement, then BigTime shall be entitled to all of the fees due for the entire Term of the Agreement. If this Agreement is terminated as a result of BigTime’s breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any subscription fees paid by Customer to BigTime under the Agreement for the terminated portion of the Term.
7.4 Handling of Customer Data Upon Termination/Expiration. Following expiration or termination of the Agreement or a Customer account, if applicable, BigTime may immediately deactivate the applicable Customer account(s) and shall be entitled to delete such Customer account(s) from BigTime’s “live” site forty (40) days after the expiration or termination occurred. Customer further agrees that BigTime shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that BigTime is in compliance with the terms of this Section.
8. Modifications; Discontinuation of Service.
8.1 To the Service. BigTime may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. BigTime reserves the right to discontinue offering the Service at the conclusion of Customer’s then-current subscription term for the Service. BigTime shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section.
8.2 To Applicable Terms. If BigTime reserves the right to change the terms of these Terms of Service. The most current version of BigTime’s Terms of Service is posted at www.bigtime.net/terms-of-service or other such URL as specified by BigTime. If the change in the Terms of Service has a material adverse impact on Customer and Customer does not agree to the change, Customer must notify BigTime by email to [email protected] within thirty (30) days after the modified Terms of Service are posted. If Customer notifies BigTime as required, then Customer will remain governed by the Terms of Service in effect immediately prior to the change until the end of the then current Term for the affected Service. If there is a conflict between these Terms of Service and the most current version of BigTime’s Terms of Service posted at www.bigtime.net and Customer has not notified BigTime that Customer does not agree to the change, the latter will prevail. Customer’s continued use of the Service following any amendment to these Terms of Service without notifying BigTime that Customer does not agree to the change within said 30 day period shall be conclusively deemed an acceptance of all such amendments. If the affected Service is renewed, it will be renewed under BigTime’s then current Terms of Service.