THIS AGREEMENT is entered into between the following parties:
The E-commerce Services Application Provider ("BigCommerce" or "Provider") and an individual Application User ("User").
WHEREAS, Application User has been granted Application logon credentials by a client of the Provider ("Client"), which Client is a participant in the Project, and User is an individual Client end-user and desires to participate in Provider's internet-based Application for improving the operation and efficiency of materials distribution ("Project");
WHEREAS, Provider has an agreement with Client to provide the e-commerce services required to configure, implement and operate the Project for the benefit of User;
WHEREAS, User will be interacting with Provider during the configuration, development and/or operation of the Project; and
WHEREAS, the parties desire to enter into this Agreement in order to protect the interests of all parties during the configuration, development and operation of the Project.
NOW THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein, it is agreed by and between the parties as follows:
"Client Content" and "Client User Content" means all data, databases, documentation, software and information which is owned by Client or User at the inception of this Agreement and which is included in or necessary for use in or with the Project.
"Application User Computer Hardware and Software" means the computer software and hardware specified by Provider and which is to be used by User in connection with the Project.
"Content", "Intellectual Property", "IP" or "Provider Work Product", means the BigCommerce data, databases, documentation, software, code, files, scripts, information, trademarks, logotypes, inventions, ideas, works of authorship, discoveries, improvements, data or other content modified by BigCommerce software or systems, devices, designs, practices, processes, methods and product and service concepts that are (i) in BigCommerce's possession as of or prior to the Effective Date of this Agreement, (ii) conceived or created by or for BigCommerce during the term of the MSA or thereafter, or (iii) received by BigCommerce from, or disclosed to BigCommerce by, any third party during the term of this Agreement or thereafter pursuant to an Order Form, as more fully described in the Documentation, whether or not covered by copyright, patent, trademark, trade secret or other proprietary rights.
"Project" means the total solution that is configured, developed and operated on the Application for improving the operation and efficiency of Client and User materials distribution managed and operated by Provider.
"Application" means the Application hosted by Provider or its designee which contains the equipment and software required to perform the services for the benefit of the Client and the User.
(2) Ownership of Provider Work Product, Client Content, and Client User Content. Provider shall retain all right, title and interest in and to the Provider Work Product; and Client and Client User shall retain all right, title and interest in and to the Client Content, and Client User Content.
(3) Application Access.
(a) Client and Client's Users will have access to the Provider Application and related systems and data for the purpose of accessing the services provided under Client's Agreement with the Provider. Access to and use of the Provider Application will require Internet access and certain computer hardware and software, which User shall be responsible to provide, operate and maintain at their own expense. Client and its Users shall also be responsible for security of the same. Upon request, Provider shall assist Application User in its efforts to detect or identify security breaches, but shall not be liable in any manner to the User for the failure or inability to detect or identify security breaches. Client and its Users are responsible for all final product set-up and proofing.
(b) Client is responsible for managing all Client and Client User ID's and logon credentials. Client's Administrative User accounts must be created and maintained utilizing the individual User's actual first and last name and a valid e-mail address. Provider reserves the right to suspend or terminate non-complying Users.
(c) Client and User understand and acknowledge that Provider may suspend or terminate access to the Application and related systems and data in response to a violation of the Provider's Acceptable Use Policy, a breach of this Agreement and as Provider deems necessary to address security, performance, and maintenance issues.
(4)Disclaimers and Warranties.
(a) PROVIDER SHALL NOT BE LIABLE TO USER OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST SAVINGS, OR LOST DATA, OR FOR ANY DAMAGE RELATED TO THE USE OF OR INABILITY TO USE THE TECHNOLOGIES INCORPORATED INTO THE PROJECT EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
(b) OTHER THAN SET FORTH EXPRESSLY IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTIES OF ANY KIND TO USER AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE IN THE TRADE.
(5) Force Majeure. Provider will be released without any liability from the performance of its obligations under this Agreement to the extent an event or condition not within Provider's control prevents that performance or makes that performance so difficult or costly that it is commercially unreasonable.
(6) Warranties by User. User warrants to Provider that (a) the Client User Content will not be unlawful, (b) the Client User Content will not contain viruses, Trojan horses, worms, time bombs, or any other disabling devices or code, (c) User owns or holds the right or licenses necessary to provide Client User Content, and third party software and documentation necessary to utilize Client User Content, and that neither the Client User Content nor the use of third party software shall infringe upon any copyright, patent right, trademark, right, publicity right, trade secret or other right of a third party.
(7) Confidentiality. During the term of this Agreement, User and Provider may disclose to one another certain information including but not limited to technical or business knowledge, knowhow, discoveries, inventions, flowcharts, algorithms, processes, software programs, XML data and documents, hardware schematics, drawings, databases, specifications, trade secrets, customer lists, or other customer information, all of which shall be considered "Confidential Information" under this Agreement. User and Provider agree to take reasonable steps to prevent the disclosure and availability of Confidential Information of the other party to third parties. They will also take reasonable steps to insure that their respective employees, agents and consultants do not disclose or make available to third parties Confidential Information of the other party. Users specifically agree that they will not disclose any confidential Provider information or Provider Work Product to Provider's competitors. The confidentiality obligation of the parties shall survive any termination or expiration of this Agreement and shall continue for a period of five years thereafter. Confidential Information shall not include any information that (i) is or becomes available to the public through no fault of a recipient party, (ii) is lawfully received by a recipient party from a third party that is not subject to disclosure restrictions, or (iii) is independently developed by a recipient party without using Confidential Information.
(8) Indemnity. User shall indemnify and hold harmless Provider and its employees, agents and consultants from any and all loss or liability for any and all claims, causes of action, suits, proceedings, losses, damages, demands, fees, expenses, fines, penalties and costs (including with limitation reasonable attorneys' fees and expenses) arising from claims, actions or proceedings brought against Provider by any third party relating to the Project or the services rendered hereunder, except to the extent such loss is the fault of Provider.
(9) Acceptable Use Policy. User shall limit its use of the Provider Application to the commercial purposes for which it is intended. In particular, User shall not upload, post or transmit to or distribute or otherwise publish through the Provider Application any materials which (a) restrict or inhibit any other user from using the Application, (b) are unlawful, threatening, abusive, libelous, defamatory, obscene, profane or indecent, (c) constitute or encourage conduct that would constitute a criminal offense, give rise to a civil liability or otherwise violate law, (d) violate, plagiarize or infringe the rights of third parties whether of a proprietary nature or otherwise, or (e) contain a virus or other harmful component. Additionally, User shall not use the Provider Work Product or Application in conjunction with or to facilitate a third party service or product that is competitive to Provider.