This Bigfork Technologies Service Agreement (this “Agreement”) is entered into between Bigfork Technologies, LLC (“Bigfork Tech” or “Company”) and You. BY CLICKING THE “I ACCEPT”, “I AGREE”, OR SIMILAR ACCEPTANCE BUTTON, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
A. Scope of the Agreement; Definitions.
“You” and “your” refers to the individual or entity that has ordered software as a service from Bigfork Tech (or an authorized reseller) by executing the ordering document or online order that accompanies and incorporates this Agreement. This Agreement governs Bigfork Tech’s commercially available software (“Software”), Bigfork Tech’s hosted or cloud-based solutions (“Hosted Services”), any related implementation, support or maintenance services (“Support”), and any custom development work (“Custom Services”), as more specifically identified in an ordering document or online order (collectively, the “Services”). Unless otherwise specified, the provisions of this Agreement apply to all Services.
For U.S. Government customers, the Software was developed exclusively at private expense and is a Commercial Item, including commercial computer software, as those terms are defined in the Federal Acquisition Regulation (“FAR”), 48 C.F.R. 2.101. The term “Program Documentation” refers to any program user manual, training material, as well as any other materials provided by Bigfork Tech as part of the Services. The term “Users” shall mean those individuals authorized by you or on your behalf to use the Services, as defined in the ordering document. The term “Your Data” refers to the data provided by you that resides in your Services environment. The term “Order” refers to the ordering document signed by the parties or online order that accompanies and/or incorporates this Agreement, including the services policies and any other document referenced or incorporated into the Order. The Order Document may contain order-specific terms agreed upon by the parties. In such cases, to the extent that such order-specific terms are contrary to the terms herein, the order-specific terms will supersede any such conflicting terms herein for the Services identified in that Order. The term “Electronic Order” refers to any online or other electronic order document electronically accepted by you that accompanies and incorporates this Software as a Service Agreement, including the service policies and any other document referenced or incorporated into the Electronic Order. The term “Ordering Document” refers to the Order and/or the Electronic Order to which the parties have agreed.
B. Account Registration. You will need to register for a Bigfork Tech account in order to access or receive any Services. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts. You may select to have the Services automatically add new users through various workflows. In doing so, you acknowledge and agree that Bigfork Tech does not vet or otherwise approve of any user interaction. It is your sole responsibility to screen such automatically added users to ensure accuracy and authority of each new automatically added user. You further acknowledge and agree that accepting the automatically added users may in some circumstance impact the number of licensed users for which you may be charged. You are responsible for your Users’ compliance with the agreement regardless of how they are added to your account.
C. Rights Granted. Upon Bigfork Tech’s acceptance of your order and for the duration of the Services term defined in the Ordering Document and/or Electronic Order, you and your designated users have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your internal business operations and subject to the terms of the agreement. The term of such grant will be specified in your Order Document (the “Term”) and shall only extend to the number of users specified in your Order Document. If no Term is specified in your Order Document, the term shall be for one year. You acknowledge that Bigfork Tech has no delivery obligation and will not ship copies of the Bigfork Tech programs to you as part of the Services. You agree that you do not acquire under the Agreement any license to use the Bigfork Tech programs specified in the ordering document in excess of the scope and/or duration of the Services as specified. Upon the end of the Agreement or the Services thereunder, your right to access or use the Bigfork Tech Services specified in the Ordering Document shall terminate.
D. Professional Services and Custom Development. Bigfork Tech will provide such professional services and custom development as are specifically described in the applicable SOW (“Professional Services”), and you will reasonably cooperate with Bigfork Tech with regard to performance of Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof from you or 5 business days from delivery if you have not first provided written notice of rejection, provided you may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. In response to rejection, Bigfork Tech may revise and redeliver the Deliverable.
Bigfork Tech owns and retains ownership of all Deliverables, including without limitation preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. You receive no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such a license, your sole right with regard to Deliverables is to use them in conjunction with the Service during the applicable Subscription Term(s). Bigfork Tech does not acquire any intellectual property rights or any other rights in the Customer Data, Confidential Information, products, systems, software, hardware, or networks provided by or on behalf of Customer and being used by Bigfork Tech in connection with the provision of Professional Services under this Agreement.
Bigfork Tech warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. Bigfork Tech further warrants that Deliverables will materially conform to their specifications as set forth in the SOW. Your sole remedy and our sole liability and responsibility for breach of any warranty in this Section shall be for Bigfork Tech to re-perform the Professional Services in question, including creation of Deliverables.
E. Third-Party Providers. Certain third-party providers, some of which may be listed on pages within Bigfork Tech’s website or within the Services, may offer products and services related to the Service or that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of the Service’s application programming interface. Bigfork Tech does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Bigfork Tech as “certified,” “validated” or otherwise. Any exchange of data or other interaction between you and a third-party provider, and any purchase by you of any product or service offered by such third-party provider, is solely between You and such third-party provider.
Some third party technology may be necessary for use with some Bigfork Tech programs. Your right to use such third party technology is governed by the terms of the third party technology license agreement. For example, the Atlassian products integrated into the Services is subject to the Atlassian Customer Agreement (www.atlassian.com/legal/customer-agreement), to which you hereby acknowledge and accept by using the Services.
F. Ownership and Restrictions. You retain all ownership and intellectual property rights in and to Your Data. Bigfork Tech or its licensors retain all ownership and intellectual property rights to the Services. Bigfork Tech retains all ownership and intellectual property rights to anything developed and delivered under this Agreement.
You may not:
- remove or modify any program markings or any notice of Bigfork Tech’s or its licensors’ proprietary rights;
- make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired);
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Bigfork Tech;
- disclose results of any Services other than as intended by the Services without Bigfork Tech’s prior written consent; and
- license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Bigfork Tech programs or materials available, to any third party other than, as expressly permitted under the terms of the agreement.
The rights granted to you under the agreement are also conditioned on the following:
- except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
- you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
G. Disclaimers. BIGFORK TECH DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT BIGFORK TECH WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT BIGFORK TECH DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BIGFORK TECH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. TO THE EXTENT NOT PROHIBITED BY LAW, THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
BIGFORK TECH DOES NOT VERIFY OR CERTIFY THE ACCURACY OF ANY DATA INPUT INTO THE SERVICES, AND THUS DOES NOT WARRANT THE ACCURACY OF ANY DATA OUTPUTS (i.e. REPORTS, VERIFICATIONS, ETC). YOU, AND ANYONE ELSE RELYING ON THE DATA DO SO AT YOUR OWN RISK.
H. Trial Use of the Services. If specified in the Ordering Document, you may order certain Services for a limited trial period (the “Trial Period”), nonproduction purposes subject to the terms and conditions of the agreement. Services acquired for trial purposes are provided “as is” and Bigfork Tech does not offer any warranties for such services. During the Trial Period, you may be required to submit to Bigfork Tech bug reports, comments, feedback, or ideas about the Services, including without limitation, about how to improve the Services (collectively, “Feedback”). By submitting Feedback, you hereby assign to Bigfork Tech all rights, title and interest in and to the Feedback.
I. Indemnification. If a third party makes a claim against either you or Bigfork Tech (“Recipient” which may refer to you or Bigfork Tech depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or Bigfork Tech (“Provider” which may refer to you or Bigfork Tech depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
- notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
- gives the Provider sole control of the defense and any settlement negotiations; and
- gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes, in its sole discretion, or it is determined by a court of competent jurisdiction that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Bigfork Tech’s ability to meet its obligations under the relevant order, then Bigfork Tech may, at its option and upon thirty (30) days prior written notice, terminate the Order.
The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the intended scope of use or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink). Bigfork Tech will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Bigfork Tech. Bigfork Tech will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. Bigfork Tech will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
J. End of Agreement. Services provided under this Software as a Service Agreement shall be provided for the period defined in the Ordering Document and will auto renew for additional one (1) year term at the then-current rates unless either party provides ninety (90) days’ notice of its intent not to renew, or the Service is otherwise terminated in accordance with the Agreement. The term of the Services and any renewal years are collectively defined as the “Services Term.” At the end of the Services Term, all rights to access or use the Services, including the Bigfork Tech programs listed in the ordering document, shall end. If either of us breaches a material term of the Agreement and fails to correct the breach within thirty (30) days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Ordering Document under which the breach occurred. If Bigfork Tech ends the Ordering Document as specified in the preceding sentence, you must pay within thirty (30) days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. If Bigfork Tech ends the Services under the Indemnification section, you must pay within thirty (30) days all amounts remaining unpaid for Services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the thirty (30) day period for so long as the breaching party continues reasonable efforts to cure the breach.
You agree that if you are in default under the Agreement, you may not use the Services ordered. In addition, Bigfork Tech may immediately suspend your password, account, and access to or use of the Services (i) if you fail to pay Bigfork Tech as required under the Agreement and do not cure within the first ten (10) days of the thirty (30) day cure period, or (ii) if you violate any provision within sections C, D, F or L of this Software as a Service Agreement. Bigfork Tech may terminate the Services hereunder if any of the foregoing is not cured within thirty (30) days after Bigfork Tech’s initial notice thereof. Any suspension by Bigfork Tech of the Services under this paragraph shall not excuse you from your obligation to make payment(s) under the Agreement.
At your request, upon payment of a transition fee, and for a period of up to thirty (30) days after the termination of the applicable ordering document, Bigfork Tech may permit you to access the Services solely to the extent necessary for you to retrieve a file of your data then in the Services environment. You agree and acknowledge that Bigfork Tech has no obligation to retain your data and that your data may be irretrievably deleted after thirty (30) days following the termination of the Ordering Document. Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, ownership, infringement indemnity, payment, and others which by their nature are intended to survive.
K. Fees and Taxes. You agree to pay for all Services ordered as set forth in the applicable Ordering Document. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Bigfork Tech must pay based on the Services you ordered, except for taxes based on Bigfork Tech’s income. You will reimburse Bigfork Tech for reasonable expenses related to providing any on-site portion of the Services. Fees for Services listed in an Ordering Document are exclusive of taxes and expenses. Services ordered on an Electronic Order are due and payable upon submission of the Electronic Order unless otherwise specified in the Electronic Order. All other amounts will be invoiced are due and payable within thirty (30) days of the date of the invoice. Bigfork Tech may charge interest at the lesser or the rate of one and one-half (1½%) per month or at the highest rate allowed by law, from the due date until paid.
You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the Ordering Document; however, the preceding does not relieve Bigfork Tech of its obligation to deliver Services that you have ordered per the terms of the Agreement.
L. Nondisclosure. By virtue of the agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential Information shall be limited to the terms and pricing under the Agreement, your data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. We each agree to hold each other’s Confidential Information in confidence for a period of two (2) years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Bigfork Tech will protect the confidentiality of your data residing in the Services environment in accordance with the Bigfork Tech practices used to protect its own data. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the Agreement or from disclosing the confidential information to a governmental entity as required by law.
Notwithstanding the foregoing, Bigfork Tech may process, use, and share certain usage data related to your account such as resource identifiers, metadata tags, security roles, process mapping, usage statistics, and analytics for internal business purposes such as to provide customer support or to investigate fraud. Bigfork Tech may also process, use, and share such data in an anonymized manner in any way deemed appropriate by Bigfork Tech.
N. Entire Agreement. You agree that the Agreement (including the Ordering Document and the information which may be incorporated into the Agreement by written reference, including reference to information contained in a URL or referenced policy), is the complete agreement for the Services ordered by you, and that the Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement. It is expressly agreed that the terms of the agreement, including any Bigfork Tech ordering document, shall supersede the terms in any purchase order or other non-Bigfork Tech document, and no terms included in any such purchase order or other non-Bigfork Tech document shall apply to the Services ordered. The Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of you and of Bigfork Tech.
O. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. BIGFORK TECH’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO BIGFORK TECH FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST BIGFORK TECH SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
P. Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
1. Bigfork Tech is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
2. You shall obtain at your sole expense any rights and consents from third parties necessary for Bigfork Tech and its subcontractors to perform the Services under the Agreement.
3. The Agreement is governed by the substantive and procedural laws of Arizona and you and Bigfork Tech agree to submit to the exclusive jurisdiction of, and venue in, the courts in Maricopa County in Arizona in any dispute arising out of or relating to the Agreement.
4. If you have a dispute with Bigfork Tech or if you wish to provide a notice under the Indemnification section of this Software as a Service agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Bigfork Technologies, LLC, email@example.com Attention: General Counsel, Legal Department. Bigfork Tech may give notice applicable to Bigfork Tech’s Software as a Service customer base by means of a general notice on the Bigfork Tech portal for the Services, and notices specific to you by electronic mail to your e-mail address on record in Bigfork Tech’s account information or by written communication sent by first class mail or pre-paid post to your address on record in Bigfork Tech’s account information.
5. You may not assign the agreement or give or transfer the Services or an interest in them to another individual or entity.
6. Except for actions for nonpayment or breach of Bigfork Tech’s proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
7. Bigfork Tech may audit your use of the Services. You agree to cooperate with Bigfork Tech’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within thirty (30) days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, Bigfork Tech can end your services and/or the agreement. You agree that Bigfork Tech shall not be responsible for any of your costs incurred in cooperating with the audit.
8. The Uniform Computer Information Transactions Act does not apply to this Software as a Service agreement or orders placed under it.
9. Force Majeure. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either of us may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
R. Customer Reference You agree (i) that Bigfork Tech may identify you as a recipient of Services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Bigfork Tech on its website for promotional purposes.