We have updated Our Master Subscription Agreement. If You are a new Subscriber, then this Master Subscription Agreement will be effective as of July 15, 2022. If You are an existing Subscriber, We are providing You with prior notice of these changes which will be effective as of August 15, 2022.
THIS MASTER SUBSCRIPTION AGREEMENT (OR “MSA”) GOVERNS CUSTOMER’S ACCESS TO AND USE OF THE BIGMARKER OFFERINGS. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ( 1 ) CLICKING A BOX OR BUTTON INDICATING ACCEPTANCE OF THIS AGREEMENT, ( 2 ) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR ( 3 ) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” OR THE TERM “YOU” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE OFFERINGS.
BigMarker’s direct competitors are prohibited from accessing or using the Offerings, except with BigMarker’s prior written consent. The Offerings may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 15, 2022. It is effective as of the date on which You accept it by either ( 1 ) clicking a box or button indicating Customer’s acceptance or ( 2 ) executing an Order Form that references this Agreement, whichever occurs first.
1. DEFINITIONS.
In addition to the terms defined in the body of this Agreement, the following terms shall be defined as follows:
“Add-ons” means, individually and collectively, any Platform feature, quantity or capacity upgrade that is ordered by Customer under an Order Form, online purchasing portal, or is provided to Customer free of charge (as applicable) or under a Free Trial, and made available by BigMarker in conjunction with an Offering.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement, Order Form(s) referencing this Master Subscription Agreement, and information contained in a URL or policy referenced in this Master Subscription Agreement and/or Documentation.
“Applicable Law” means, with respect to any party, any federal, state or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other requirement of any international, federal, state or local court, administrative agency or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such party or any of its properties, assets or business operations.
“Beta Offerings” means BigMarker Offerings or functionality that may be made available to Customer to try at its option which is designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Claim” means any claims, assertions, demands, causes of action, suits, proceedings or other actions, whether at law or in equity.
“Customer Data” means any information owned or provided by or on behalf of Customer, or processed by BigMarker on Customer’s behalf through providing the Offerings, in any form, format or media (including paper, electronic and other records), which BigMarker has access to, obtains, uses, maintains or otherwise handles in connection with the performance of the Offerings, including partial copies thereof. Customer Data may include personally identifiable information, sensitive personal information, or Customer’s confidential information.
“BigMarker Content” means information provided by BigMarker to Customer through or in conjunction with the Offerings, Beta Offerings or pursuant to an Order Form, as more fully described in the Documentation.
“Customer Event” or “Event” means any virtual event Customer hosts via the Platform, including the use of any video streaming, presentation, interactive, and networking features included therein.
“Customer Content” means all materials and information, including documents, text, graphics, photos, designs, trademarks, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, directly or indirectly provided or made available to BigMarker or on BigMarker’s website or platform by or on behalf of Customer in connection with this Agreement, whether or not the same: (a) are owned by Customer, a third party, or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights (defined below).
“Destructive Elements” means computer code, programs or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Offerings or any other associated software, firmware, hardware, computer system or network (including without limitation “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” "devices," “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious or hidden procedures, routines or mechanisms that would cause such Offerings to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with operations.
“Documentation” means the applicable Offering’s implementation and security documentation, system requirements, usage guidelines, and/or policies, each as updated from time to time and accessible via the applicable Offering and/or expressly referenced in this Agreement.
“Free Offerings” means, individually and collectively, any Offering(s) that BigMarker makes available to Customer free of charge. Free Offerings exclude Offerings provided as a Free Trial and Offerings for which You have paid Fees.
“Free Trial” means a temporary subscription(s) to the Offerings, for which no Fees are charged, subject to the terms and conditions of this Agreement.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-BigMarker Application” means a web-based, mobile, offline, or other software application functionality that interoperates with an Offering, that is provided by Customer or a third party.
“Losses” means any and all damages, penalties, losses, liabilities, investigative costs, judgments, settlements, awards, fines, costs and expenses (including reasonable attorneys’ fees and expenses).
“Offerings” means, individually and collectively, the Platform(s), Add-ons, BigMarker Content, and/or other products and services that are ordered by Customer under an Order Form, online purchasing portal, or are provided to Customer free of charge (as applicable) or under a Free Trial, and made available (online or otherwise) by BigMarker, including any associated integrations or mobile components, as described in the Documentation. “Offerings” exclude Non-BigMarker Applications.
“Order” or “Order Form” means an ordering document or online order specifying the Offerings to be provided hereunder that is entered into between Customer and BigMarker or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Platform(s)” means, individually and collectively, the web and mobile cloud-based application(s) and software platform(s) provided by BigMarker that are ordered by Customer under an Order Form, online purchasing portal, or are provided to Customer free of charge (as applicable) or under a Free Trial. “Platforms” exclude Non-BigMarker Applications.
“Platform Customization” or "Customization" means any services provided by BigMarker that are ordered by Customer under an Order Form, to enhance, add functionality to, or modify the user experience of the Platform(s) to meet Customer requirements, including any software design and development services provided therein.
“Professional Services” means, individually and collectively, any implementation, configuration, Customization, integration, training, project management, event production, customer success or support, and/or other services provided by BigMarker that are ordered by Customer under an Order Form, online purchasing portal, or provided to Customer free of charge (as applicable) or under a Free Trial.
“Subscription Term” means the initial term of your subscription to the applicable Offering(s), as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Offerings, the Subscription Term will be the period during which you have an account to access the Free Offerings.
“User” means an individual who is authorized by Customer to use the Offering(s), for whom Customer has purchased a subscription or obtained a Free Trial, and to whom Customer (or, when applicable, BigMarker at Customer’s request) has supplied a user identification and password (for Offerings utilizing authentication). Users may include Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business, each of whom is acting solely on or for Customer’s behalf. “Users” do not include Event attendees.
2. OFFERINGS.
2.1. Platform(s). If and to the extent specified in an Order Form and/or a Free Trial or Free Offerings registration, and subject to Customer’s and Customer’s Users’ compliance with this Agreement and the Documentation, BigMarker hereby grants Customer a worldwide, non-exclusive, non-transferable, non-assignable (except as expressly stated herein) license to access and use (solely as specified in this Agreement, the relevant Order Form, and the Documentation) the Platform(s), including any Customization thereto, for the Subscription Term. BigMarker will (a) make the Platform(s) available to Customer during each applicable Subscription Term, pursuant to this Agreement and the applicable Order Form; (b) provide applicable standard support for the Platform at no additional charge, and/or upgraded support if purchased; (c) use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except for (i) planned downtime (of which BigMarker will give advance electronic notice) and (ii) any unavailability caused by circumstances beyond BigMarker’s reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrests, acts of terror, strikes or other labor problems (other than those involving BigMarker employees), Internet service provider and technology failures or delays, or denial of service attacks; and (d) provide the Platform in accordance with applicable laws and government regulations. Customer agrees that Customer’s right to access and use the Platform(s) pursuant to this Section is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by BigMarker regarding future functionality or features. If Customer has purchased subscriptions to the Platform(s), Customer’s right to access and use the Platform(s) pursuant to this Section is subject to Customer’s timely payment of all applicable Fees. If Customer has registered for a Free Trial to the Platform(s), Customer’s right to access and use the Platform(s) is further subject to the “Free Trial” section.
2.2. Platform Customization. The parties agree that the table of requirements specified in any Order Form (the “Requirements”) constitutes the parties’ complete understanding and agreement of the scope of Platform Customization in the Order. The Requirements supersede all previous discussions and understandings, whether oral or written, and the parties agree that any modifications or additions to the Requirements during the course of any Customization project will constitute a change order, which may require an Order amendment and may impact the pricing and delivery timelines associated with the project.
2.3. Modifications by BigMarker. You acknowledge that BigMarker may modify the features and functionality of the Platform(s) during the subscription term. BigMarker shall provide Customer with commercially reasonable advance notice of any deprecation of any material feature or functionality.
2.4. Professional Services. If and to the extent specified in an Order Form and subject to Customer’s and Customer’s Users’ compliance with this Agreement and the Documentation, BigMarker may provide Professional Services in connection with the Platform(s) or Customer Event(s) in accordance with terms mutually agreed upon in the applicable Order and as otherwise set forth in this Agreement. With respect to any deliverables associated with the Professional Services, unless otherwise agreed to in the applicable Order, BigMarker and its licensors own and shall retain all right, title, and interest, including, without limitation, all Intellectual Property Rights (defined below), in and to such deliverables, including any Platform Customization; provided, however, that Customer shall have a license to access and use such deliverables concurrently with its access and use of the Offerings during the Term of the applicable Order. Customer acknowledges that any Professional Services performed hereunder are priced accordingly and in this Section 2.3’s absence, the pricing of Professional Services would be substantially different.
2.5. Free Trial. If Customer registers for a Free Trial, BigMarker will make the applicable Offering available to Customer on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which Customer registered to use the applicable Offering; or (b) the start date of any paid subscriptions ordered by Customer for such Offering; or (c) termination by BigMarker in its sole discretion. Additional terms and conditions may appear on the Free Trial registration. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE PLATFORM(S), AND ANY CUSTOMIZATIONS MADE TO THE OFFERINGS, BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME OFFERINGS AS THOSE COVERED BY THE FREE TRIAL OR EXPORTS SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO AN OFFERING THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL (E.G., FROM AN ENTERPRISE PLAN TO A SELF-SERVICE PLAN); THEREFORE, IF CUSTOMER PURCHASES A SUBSCRIPTION TO AN OFFERING THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL, CUSTOMER MUST EXPORT ITS DATA BEFORE THE END OF THE FREE TRIAL PERIOD OR ITS DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY BIGMARKER” SECTION BELOW, DURING THE FREE TRIAL THE OFFERINGS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND BIGMARKER SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE OFFERINGS FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE BIGMARKER’S LIABILITY WITH RESPECT TO THE OFFERINGS PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $500.00. WITHOUT LIMITING THE FOREGOING, BIGMARKER AND ITS AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT THAT: ( A ) USE OF THE OFFERINGS DURING THE FREE TRIAL PERIOD WILL MEET REQUIREMENTS, ( B ) USE OF THE OFFERINGS DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND ( C ) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO BIGMARKER AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE OFFERINGS DURING THE FREE TRIAL PERIOD, ANY BREACH OF THIS AGREEMENT BY CUSTOMER AND/OR CUSTOMER’S USERS AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.6. Beta Offerings. From time to time, BigMarker may make Beta Offerings available to Customer. Customer may choose to try such Beta Offerings or not in its sole discretion. Customer acknowledges that Beta Offerings may be incomplete or experimental, may contain errors, and use of such offerings is at Customer’s own risk. The sections titled “Availability Goal,” and “Termination” shall not apply to Customer’s use of Beta Offerings.
3. USE OF OFFERINGS.
3.1. Customer’s Responsibilities. Customer will (a) be responsible for Users' compliance with this Agreement, the Documentation, and each Order Form, (b) be solely responsible for the accuracy, quality, integrity, and legality of Customer Content and of Customer Data, the means by which Customer and/or Users acquired Customer Content and Customer Data, and Customer and Users’ rights to use Customer Content and Customer Data with the Offerings, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Offerings, and notify BigMarker promptly of any such unauthorized access or use, (d) access and use, and cause Users and Event attendees to access and use, the Offerings only in accordance with this Agreement, the Documentation, the System Requirements (defined below), each Order Form, and applicable laws and government regulations, including without limitation those related to privacy, electronic communications, and anti-spam laws and regulations, and (e) comply with terms of any third-party applications with which Customer and Users use the Offerings.
3.2. No Modifications by Customer. Customer and Users may not in any way modify, change, alter, or create derivatives works based upon the Offerings. Customer and Customer’s Users may not use the Offerings for any purpose that violates applicable law or regulation or that is not expressly authorized under this Agreement, an Order Form, or the Documentation.
3.3. Usage Limits. The Offerings may be subject to usage limits as specified in the applicable Order Form and Documentation. If Customer or Users exceed a contractual usage limit, BigMarker may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding BigMarker's efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Offering promptly upon BigMarker's request, and/or pay any invoice for excess usage in accordance with the "Fees & Payment" section below.
3.4. Usage Restrictions. Customer shall have only those rights in and to the Offerings as are expressly granted to it pursuant to this Agreement. Customer will not (a) make any Offering available to anyone other than Customer or Users, or use any Offering for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation; (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Offering, or include any Offering in a service bureau or outsourcing offering without first obtaining BigMarker’s prior written consent via a separate reseller or similar agreement; (c) use a Service or Non-BigMarker Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use a Service or Non-BigMarker Application to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained there; (f) attempt to gain unauthorized access to any Offering or its related systems or networks; (g) permit direct or indirect access to or use of any Offerings in a way that circumvents a contractual usage limit, or use any Offerings to access or use any of BigMarker intellectual property except as permitted under this Agreement, an Order Form, or the Documentation; (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof; (i) copy BigMarker Content except as permitted herein or in an Order Form or the Documentation; (j) frame or mirror any part of any Offering, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile an Offering or access it to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Service, (iii) copy any ideas, features, functions or graphics of the Service, or (iv) determine whether the Offerings are within the scope of any patent.
3.5. System Requirements. As used in this Agreement, “System Requirements” means the minimum system and other requirements set forth and amended by BigMarker from time to time that Customer and Users must meet to access and use the Platform(s). In the event of a conflict between the System Requirements set forth in the Agreement and those contained in the Documentation, the requirements in the Documentation shall govern. Customer agrees that in order to host an Event using the Platform(s), a User must (a) use an up-to-date computer released in the past 5 years; (b) use a compatible microphone/headset or telephone with consistent connection for dial-in audio; (c) use a compatible webcam or broadcast camera for video; (d) use a compatible operating system (PC: Windows 7 or later; or Mac: OS X or later; or iPhone/iPad: iOS 12 or later; or Android: Android v.8.0 or later); (e) use a compatible web browser (the current up-to-date version of Chrome or Firefox); (f) use a strong, consistent local internet connection with at least 10Mbps bandwidth and a wired Ethernet connection strongly encouraged to broadcast video streams; (g) disable any virtual private network (VPN), when tend to throttle/limit upload speed; and (h) disengage any strict firewalls that may block ports required to transmit data including video streams outside of the network, but at a minimum ensure that TCP ports 80 and 443 are open. Customer acknowledges that if it chooses to use the Platform(s) in an environment outside of the System Requirements, it is doing so at its own risk. BigMarker and its affiliates and licensors do not represent or warrant that use of the Platform(s) outside of the System Requirements will meet Customer’s requirements, will be uninterrupted, timely, or free from errors.
3.6. Non-BigMarker Applications. BigMarker or third parties may make available third-party products or services, including, for example, Non-BigMarker Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-BigMarker provider, product or service is solely between Customer and the applicable non-BigMarker provider. BigMarker does not warrant or support Non-BigMarker Applications or other non-BigMarker products or services, whether or not they are designated by BigMarker as “certified” or otherwise, unless expressly provided otherwise in an Order Form. BigMarker is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-BigMarker Application or its provider.
3.7. Integration with Non-BigMarker Applications. The Platform(s) may contain features designed to interoperate with Non-BigMarker Applications. BigMarker cannot guarantee the continued availability of such Platform features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-BigMarker Application ceases to make the Non-BigMarker Application available for interoperation with the corresponding Platform features in a manner acceptable to BigMarker.
4. PROPRIETARY RIGHTS.
4.1. Definition of Intellectual Property Rights. As used in this Agreement, “Intellectual Property Rights” means all intellectual and industrial property rights, whether now existing or existing in the future, including without limitation, (a) all patent rights, including any rights in pending patent applications and any related rights; (b) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (c) all trademarks, service marks, trade dress or other proprietary trade designations, including all registrations and applications therefor (d) all rights throughout the world to proprietary know-how, trade secrets and other confidential information, whether arising by law or pursuant to any contractual obligation of non-disclosure; and (e) all other rights covering industrial or intellectual property recognized in any jurisdiction.
4.2. Reservation of Rights. Subject to the limited rights expressly granted hereunder, BigMarker, its Affiliates, and its and their licensors reserve all rights, title, and interest in and to the Offerings (including all updates, customizations, and/or modifications thereto), its and their trade and service marks, and the Aggregate Data (defined below), including in each case all related Intellectual Property Rights. No rights are granted to Customer or Users hereunder other than as expressly set forth herein.
4.3. Ownership of Customer Data. As between BigMarker and Customer, Customer exclusively owns all rights, title, and interest in and to Customer Data. Customer hereby grants BigMarker, its Affiliates, and its and their applicable contractors a limited, personal, non-transferable, non-assignable (except as expressly stated herein), worldwide, non-exclusive license to host, copy, use, transmit, and display Customer Data, as appropriate for BigMarker to provide and ensure proper operation of, the Platform(s) and associated systems in accordance with this Agreement. Notwithstanding the foregoing, Customer agrees that BigMarker shall have the right to: (a) access and use Customer Data (i) to provide, maintain, and update the Platforms and (ii) for the purpose of providing statistical insights and analysis related to Customer’s and Users’ use of Offerings; and (b) anonymize and aggregate Customer Data (such anonymized and aggregated data, “Aggregate Data”) to prepare reports, studies, analyses, and other work product resulting from such Aggregate Data; provided that under no circumstances shall BigMarker distribute or otherwise make available to any third party any data that is identifiable as Customer Data. Subject to the limited licenses granted herein, BigMarker acquires no right, title, or interest from Customer under this Agreement in or to any Customer Data.
4.4. Ownership of Customer Content. As between BigMarker and Customer, Customer exclusively owns all rights, title, and interest in and to Customer Content. To the extent Customer uploads Customer Content to or creates content using the Platform, Customer hereby grants BigMarker and its Affiliates a nonexclusive, royalty-free, transferable, and fully sub-licensable right to use, reproduce, adapt, translate, distribute, publish, display and perform Customer Content throughout the world in accordance with the privacy and distribution settings Customer configures on the Platform user interface. Subject to the limited rights expressly granted hereunder, BigMarker acquires no right, title, or interest from You under this Agreement in or to any Customer Content.
4.5. Feedback. Customer and Users hereby grant BigMarker and its Affiliates a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, and assignable license to use and incorporate into the Offerings any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or Users relating to the operation of the Offerings.
5. FEES & PAYMENT.
5.1. Fees. Customer shall pay all fees specified in each Order Form (“Fees”). Except as otherwise specified herein or in the applicable Order Form: (a) Fees are based on subscriptions to the Offerings purchased and not actual usage; (b) payment obligations are non-cancelable and Fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant Subscription Term. Fees are fixed for one calendar year from the initial effective date of the first Subscription Term for the applicable Offerings but may be modified thereafter by providing thirty (30) days written notice to Customer.
5.2 Reimbursements. If and to the extent specified in an Order Form, Customer shall reimburse BigMarker for actual and reasonable (and without mark-up or administrative fee of any type whatsoever) travel expenses, hotel accommodations and rental car expenses incurred by BigMarker’s personnel in the course of providing any Professional Services. BigMarker will provide Customer with receipts and other appropriate documentation for all expenses submitted for reimbursement.
5.3 Invoicing & Payment. BigMarker shall timely submit invoices to Customer for payment for Offerings at such time or times as payment becomes due under each applicable Order Form. In respect of any Professional Services rendered on a time and materials basis, invoices shall reflect the hours worked, along with an hourly rate, and contain sufficient information for Customer to determine what Professional Services were rendered. If Customer provides credit card information to BigMarker, Customer authorizes BigMarker to charge such credit card for all Fees due hereunder. Except as otherwise set forth in the applicable Order Form, payment of Fees shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced Fees are due net 30 days from the invoice date.
5.4. Overdue Charges. If payment of any Fees is not received by BigMarker by the due date, then, without limiting BigMarker’s other rights or remedies, (a) the Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) BigMarker may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
5.5. Suspension and Acceleration. If any Fees owed by Customer under this Agreement are 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized BigMarker to charge to Customer’s credit card), BigMarker may, without limiting its other rights and remedies, accelerate Customer’s unpaid Fees obligations so that all such obligations become immediately due and payable, and/or suspend Customer’s access to the Offerings until such amounts are paid in full; provided that if Customer is paying by credit card or direct debit and payment has been declined by the applicable financial institution, BigMarker will give Customer at least ten (10) days’ prior notice that Customer’s payment is overdue before suspending Customer’s access to the Offerings.
5.6. Payment Disputes. BigMarker will not exercise its rights under the “Overdue Charges” or “Suspension and Acceleration” section above for 60 days if Customer is disputing the applicable Fees reasonably and in good faith and are cooperating diligently to resolve the dispute. Any invoice or charge not disputed within thirty (30) days after receipt thereof shall be deemed to be accepted by Customer, and Customer shall waive any dispute right with respect to such invoice or charge.
5.7. Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with purchases hereunder. If BigMarker has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, BigMarker will invoice Customer and Customer will pay that amount unless Customer provides BigMarker with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, BigMarker is solely responsible for taxes assessable against it based on its income, property, and employees.
5.8. Availability Goal. BigMarker’s objective is to achieve (a) the Platform Availability goal specified in an Order Form, or (b) 99.7% Availability if no such Availability goal is specified, 24-hours per day, 7 days per week (the “Availability Goal”), where “Availability” is calculated monthly as the total minutes the Platform was available during a calendar month, less Excluded Downtime (defined below), divided by the total minutes in the applicable calendar month. “Excluded Downtime” means any disruption, unavailability or inoperability: (a) directly or indirectly caused by Customer, (b) due to unforeseeable circumstances, (c) due to widespread internet disruptions, interruption of services by BigMarker’s service providers including AWS, and malicious third party acts, and (d) due to scheduled overnight and weekend maintenance.
6. CONFIDENTIALITY.
6.1. Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of BigMarker includes the Offerings, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party and can be verified in writing that it was independently developed. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional BigMarker services.
6.2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, BigMarker may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-BigMarker Application Provider to the extent necessary to perform BigMarker’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. DATA PROTECTION. BigMarker will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer, Customer Affiliates, Users, and/or Authorized Persons). The terms of the data processing addendum available at https://get.bigmarker.com/legal/data-processing-addendum (or other designated or replacement URL) (“DPA”) are hereby incorporated by reference and shall apply to the extent that Customer provides Personal Data (as defined in the DPA) to BigMarker or its Affiliates as part of Customer’s use of an Offering.
8. REPRESENTATIONS AND WARRANTIES.
8.1. BigMarker Representations and Warranties. BigMarker represents and warrants to Customer that: (a) it has the right to grant the license and other rights relating to any Offerings provided under this Agreement, and during the term of this Agreement, it shall maintain all rights in and to the Offerings necessary to permit Customer to exercise the licenses and other rights granted under this Agreement and any Order; (b) it shall comply with the DPA; (c) the Offerings will comply with the System Requirements; and (d) the Offerings do not and will not contain any Destructive Elements.
8.2. Customer Representations and Warranties. Customer represents and warrants to BigMarker that: (a) it owns or otherwise possesses and controls all of the rights to all Customer Content; (b) it shall comply with the Data Processing Addendum; (c) it will comply with the System Requirements; and (d) the Customer Content does not and will not contain any Destructive Elements. If Customer breaches this subsection, Customer shall use reasonable and continuous efforts (at Customer’s sole expense) to eliminate any and all Destructive Elements.
8.3. Joint Representations and Warranties. Each party represents and warrants that (a) it has full right, power and authority to enter into and perform its obligations under this Agreement and each Order Form without the consent of any third party and (b) the individual executing this Agreement on its behalf is duly authorized to do so.
8.4. Assignment of Third Party Warranties. In addition to, and not in lieu of, BigMarker’s other obligations hereunder, to the extent any Offerings are provided through or created by a third party, BigMarker hereby assigns to Customer all assignable representations, warranties, indemnities and other remedies related thereto, and shall enforce any non-assignable representations, warranties, indemnities and remedies on Customer’s behalf.
9. DISCLAIMER; LIMITATION OF LIABILITY.
9.1. Disclaimer. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, BIGMARKER SHALL PROVIDE THE OFFERINGS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. BIGMARKER DOES NOT WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, ACCURACY AND RELIABILITY OF THE OFFERINGS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS SECTION 9 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
9.2. Limitation of Liability. EXCEPT FOR LIABILITY ARISING AS A RESULT OF AN OBLIGATION FOR BIGMARKER TO INDEMNIFY CUSTOMER OR FOR BIGMARKER’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN (WITH RESPECT TO WHICH THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SHALL NOT APPLY), IN NO EVENT SHALL: (I) BIGMARKER BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF BIGMARKER WAS ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES; OR (II) BIGMARKER’S LIABILITY TO CUSTOMER ARISING OUT OF THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID TO BIGMARKER UNDER THE ORDER UNDER WHICH SUCH LIABILITY ARISES.
10. INDEMNIFICATION.
10.1. Indemnification by BigMarker. (a) Subject to the limitations contained in Section 9.2 hereof, BigMarker shall indemnify, defend and hold harmless Customer, its affiliates and subsidiaries and their respective officers, directors, employees, and contractors (collectively, “Customer Indemnified Parties”) from and against any and all Losses suffered or incurred by the Customer Indemnified Parties arising out of or in connection with: (i) any breach of any representation, warranty, covenant or agreement made by BigMarker herein or under any Order issued hereunder; (ii) any proven Claims arising out of any allegation that the Offerings and Documentation and any deliverables provided pursuant to an Order (including, or the use and/or exploitation thereof) infringes, misappropriates or violates any patent, copyright, trademark, trade name, trade secret or other intellectual property right, or any other right of any third party; (iii) any Claims arising out of any injury (including death) or damage to a person or tangible personal property to the extent it arises out of or is in connection with the performance of the Offerings and is proximately caused by BigMarker or any person, firm or corporation directly employed or engaged by BigMarker to perform the Offerings; (iv) any Claims or Losses arising out of BigMarker’s failure to comply with its privacy and data protection obligations or security related obligations herein or under any Order issued hereunder; (v) material loss of, damage to or corruption of Customer Data caused by BigMarker or any person, firm or corporation (including affiliates and subcontractors) directly employed or engaged by BigMarker to perform the Offerings; and (vi) any Claims or Losses arising out of BigMarker’s actual breach of any Applicable Law; (b) In the event of Claims against Customer Indemnified Parties, or if BigMarker reasonably believes the Offering may infringe or misappropriate, BigMarker may in its discretion and at no cost to Customer (i) modify the Offering so that they no longer infringe or misappropriate, without breaching BigMarker Representations and Warranties above, (ii) obtain a license from the intellectual property holder for Customer’s continued use of the Offering in accordance with this Agreement, or (iii) terminate Customer’s subscription or Order upon 30 days’ written notice.
10.2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless BigMarker, its affiliates and subsidiaries and their respective officers, directors, employees, and contractors (collectively, “BigMarker Indemnified Parties”) from and against any and all Losses suffered or incurred by the BigMarker Indemnified Parties arising out of or in connection with: (a) any breach of any representation, warranty, covenant or agreement made by Customer herein or under any Order issued hereunder; (b) any Claims related to or arising out of any allegation that any Customer Content (including, or the use and/or exploitation thereof) infringes, misappropriates or violates any patent, copyright, trademark, trade name, trade secret or other intellectual property right, or any other right of any third party; (c) any Claims related to or arising out of any injury (including death) or damage to a person or tangible personal property to the extent it arises out of or is in connection with the use of the Offerings and is proximately caused by Customer or any person, firm or corporation directly or indirectly employed or engaged by Customer; (d) any Claims or Losses related to or arising out of Customer’s failure to comply with its privacy and data protection obligations or security related obligations herein or under any Order issued hereunder; (e) loss of, damage to or corruption of Customer Data caused by Customer or any person, firm or corporation (including affiliates and subcontractors) directly or indirectly employed or engaged by Customer; and (f) any Claims or Losses related to or arising out of Customer’s actual or alleged breach of any Applicable Law.
10.3. Indemnification Procedures. In claiming indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any Claim which the indemnified party believes falls within the scope of the foregoing indemnification, provided that the failure of the indemnified party to provide prompt written notice of any such Claim shall not relieve the indemnifying party from its indemnification obligations hereunder unless the indemnifying party is materially prejudiced thereby. The indemnified party may, at its own cost and expense and with counsel of its choice, assist in the defense of such Claim if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement thereof, provided, further, that any settlement intended to bind the indemnified party or in any way prejudice, restrict or encumber the rights of the indemnified party shall not be final without the indemnified party’s prior written consent.
11. TERM & TERMINATION
11.1. Term and Renewal. The initial Subscription Term will be specified in an Order, and unless otherwise specified in an Order, subscriptions will automatically renew for the shorter of the Subscription Term, or one year, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at BigMarker’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Offerings has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
11.2. Early Cancellation. Customer may choose to cancel a subscription early at Customer’s convenience, provided that, BigMarker will not provide any refunds of prepaid fees or unused subscription fees, and Customer will promptly pay all unpaid fees due through the end of the Subscription Term. See the 'Term and Renewal' section above for information on how to cancel a subscription.
11.3. Termination for Cause. A party may terminate this Agreement for cause ( a ) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or ( b ) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or ( c ) BigMarker determines in its sole discretion that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BigMarker.
11.4. Payment upon Termination. If this Agreement is terminated by BigMarker in accordance with the “Termination for Cause” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to BigMarker for the Subscription Term.
11.5. Effect of Termination or Expiration. Upon the termination of this Agreement or the expiration and non-renewal of a Subscription Term: (a) Customer will immediately cease accessing and using the Offerings subject to the termination or expired Subscription Term (including, without limitation, any applicable BigMarker Content) and (b) upon Customer request made within thirty (30) days, BigMarker will make Customer Data available for export or download, as described in the then-current Documentation, and thereafter will have no obligation to maintain or provide any Customer Data, unless legally required.
11.6. Surviving Provisions. The sections titled “Free Offerings,” “Fees & Payment,” “Proprietary Rights,” “Confidentiality,” “Disclaimer,” “Limitation of Liability,” “Indemnification,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General” will survive any termination or expiration of this Agreement, and the section titled “Data Protection” will survive any termination or expiration of this Agreement for so long as BigMarker retains possession of Customer Data.
12. GENERAL.
12.1. Entire Agreement. This Agreement, together with the Orders which incorporates the terms and conditions herein by this reference, constitutes the complete and entire understanding and agreement, and supersedes all prior and contemporaneous understandings, arrangements and agreements (whether written or oral), between the parties with respect to the subject matter hereof, including any terms and conditions included on any purchase orders, and may not be modified or amended except by written instrument duly executed by each of Customer and BigMarker. This Agreement shall not be superseded by any terms contained in any invoice, purchase order, confirmation, acknowledgment or any “shrink wrap” or “click through” license, whether or not signed by the parties.
12.2. Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld). Any assignment in breach of this Agreement is void.
12.3. Severability. If any provision of this Agreement or any Order Form, shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court of competent jurisdiction finds that any provision of this Agreement or any Order Form is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
12.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.5. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7. Export Compliance. The Offerings and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. BigMarker and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Offerings in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria, and Crimea) or in violation of any U.S. export law or regulation.
12.8. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.9. Force Majeure. BigMarker shall not be liable to Customer for any failure to deliver the Offerings in the event that BigMarker is unable to supply any of the Offerings as a result of any fire, explosion, war, riot, strike, walk-out, labor controversy, flood, pandemic, shortage of water, power, labor, transportation facilities or necessary materials or supplies, default or failure of carrier, breakdown in or the loss of production or anticipated production from plant or equipment, act of God or public enemy, any law, act or order of any court, board, government or other authority of competent jurisdiction, or any other cause (whether or not of the same character as the foregoing) beyond the reasonable control of BigMarker. Deliveries omitted in whole or in part while such inability remains in effect shall be canceled and associated fees shall be refunded.
12.10. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing by registered mail or internationally-recognized service, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as a Legal Notice, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Offerings system administrator designated by Customer.
12.11. Headings. The headings of the various articles and sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
12.12. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
12.13. Jurisdiction; Governing Law. This Agreement and the Orders shall be governed and construed in accordance with the laws of the State of Illinois without reference to its conflicts of laws principles. Venue for any proceedings to enforce this Agreement shall be in the state or federal courts located in Chicago, Illinois, and each party hereby consents to the exclusive personal jurisdiction of such courts.
