Through its Web site http://www.bigcontacts.com, BigContacts, LLC ("Vendor") provides certain services to registered users on a fee basis, subject to certain account limits selected during the registration process ("Account Limits") and to the terms and conditions set forth in this Terms of Service Agreement (the "Agreement"). Except as provided for herein, references to Software Site shall be deemed to include all models and versions of the Software Site. Software Site, and all software and documentation relating thereto, together with all components thereof (collectively, "Software Site"), are protected by United States copyright, patent, trademark and other applicable laws and international treaty provisions. You may also be subject to additional terms and conditions that apply when you use affiliate services, third party content, software or other services accessible through Software Site.
AFTER REGISTRATION, YOUR ACCESS AND USE OF THE SERVICES SHALL BE DEEMED YOUR CONTINUED AND CONCLUSIVE ACCEPTANCE OF THE AGREEMENT AS IT APPLIES TO YOUR USE OF THE SERVICES AND AS THEY MAY BE MODIFIED FROM TIME TO TIME BY VENDOR AND POSTED UNDER "LEGAL NOTICES" ON THE SERVICES.
If you have any questions about this Agreement and its implications, please contact info@bigcontacts.com.
- Definitions
- Application Software. The term "Application Software" means the computer software made available for use on the website http://www.bigcontacts.com, and used by Vendor in providing services to you.
- Your Content. The term "your Content" shall mean all proprietary software created or developed by you, and all text, multimedia, graphics, audio, video, data and other information provided by you.
- Confidential Information. The term "Confidential Information" means a disclosing party's proprietary, non-public information. It includes the Application Software, but excludes (i) information lawfully received from third parties without confidentiality obligations to the disclosing party; (ii) information in the public domain; and (iii) information independently developed by the receiving party.
- Software Site. The term "Software Site" means the services made available by the Application Software under the terms and conditions of this Agreement.
- License Rights and Ownership
- License Rights. Subject to the terms and conditions of this Agreement, Vendor grants to you a limited, nontransferable, nonexclusive license, to use the Software Site solely to support your normal course of business.
- Ownership of Software Site. You acknowledge that the Application Software contains trade secrets, Confidential Information and other valuable proprietary information owned by Vendor. All applicable rights to patents, copyrights, trademarks and trade secrets contained in Software Site and any modifications thereof are, and shall remain, the property of Vendor or its third party content and/or service providers, as the case may be.
- Ownership of Your Content. You retain all right, title and interest in and to your Content.
- Fees, Payment and Taxes
- Subscription-Fee Based Version of Software Site. In consideration of the license to use the subscription-fee based version of Software Site, you shall pay to Vendor a license fee at the applicable rate then in effect. The current licensing fees will be posted on the Software Site public Web Site at http://www.bigcontacts.com/pricing-and-sign-up/.
- Credit Card Payment. If you have elected to pay for the subscription fee-based version of Software Site, or any premium-type items (e.g., additional storage, third-party business services) by credit card, and Vendor does not receive payment from the credit card issuer, you agree to pay all amounts due Vendor immediately upon demand by Vendor. Each time you use Software Site you agree that Vendor is authorized to charge your designated credit card account for the applicable rate for Software Site then in effect. (Your agreement with your credit card issuer governs use of your credit card, and you must refer to that agreement to ascertain your rights and liabilities as a cardholder.) You must notify Vendor of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any other information that may prevent Vendor from charging your account.
- Prohibited Uses
- Nature of Communications. Communications by or through Software Site can occur in real time and in some instances may be posted on message boards, bulletin boards, or contained within file libraries. You acknowledge that Vendor cannot, and does not intend to, screen any communication in advance for accuracy, completeness, or conformity with this Agreement or any applicable laws. Accordingly, you acknowledge that neither Vendor, nor any of its affiliates, agents, content providers or service providers shall assume or have any liability whatsoever to you or any other party for any action or inaction by Vendor or any of its affiliates, agents, content providers or service providers with respect to communications made by or through Software Site. You may not use, nor allow any others to use Software Site, either directly or indirectly, to make, create, solicit, transmit, upload, or publish any comment, request, suggestion, proposal, image, data file, or other communication which: (i) is, or is likely to be perceived by an intended recipient or target to be, obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; (ii) violates any rights of others, including but not limited to, infringement of any proprietary rights, copyrights, trademarks, patents, or trade secrets; (iii) libels, defames or slanders any person, or infringes upon any person's privacy rights; (iv) impersonates any person or entity, including without limitation Vendor personnel; or (v) attempts to solicit or collect any personal information whatsoever from a minor without appropriate prior verifiable parental consent;
- Additional Restrictions on Use. You shall not (i) alter or permit a third party to alter any part of the Application Software or Software Site; (ii) resell access or use of Software Site or process or permit to be processed the data of any other party; (iii) use the Application Software or Software Site in the operation of a service bureau; (iv) disassemble, decompile, reverse engineer or otherwise attempt to derive source code from the Application Software or Software Site; (v) license, sell, transfer, or lease the Application Software; (vi) transmit to Software Site any computer virus, harmful component, or corrupted data or take any other action that adversely affects the performance or availability of Software Site for any Software Site user(s); or (vii) make any use of Software Site that violates any applicable local, state, national, international or foreign law.
- Compliance with Laws. You agree to comply with all United States, foreign and local laws and regulations that apply to your use of Software Site including, without limitation, export control laws and regulations. In addition to the foregoing, and in addition to any restrictions disclosed to you in the Software Site sign-up process, you agree that Software Site or the underlying information or technology (or any component thereof) may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Denial Orders. By using Software Site you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you are responsible for complying with any local laws in your jurisdiction that may impact your right to use Software Site.
- No Spam or Gambling; IDs. You may not use Software Site to send unsolicited advertising or promotional materials (including, without limitation, "spam" or bulk e-mail and/or "chain"-type letters); or to facilitate or promote activities that constitute gambling. When selecting a "Company ID" for an account, you may not select a name that is in use by another party. Vendor also reserves the right to modify or cancel any "Company ID" or "User ID", including those that it deems offensive, vulgar or obscene.
- Over 18. You also warrant, represent, and covenant to Vendor that (i) you are at least eighteen (18) years of age; and (ii) you possess the legal right and ability to enter into this Agreement.
- No Circumvention. You agree not to attempt to circumvent user authentication or security of any host, network, or account related to Software Site. This includes, but is not limited to, accessing data not intended for you, logging into a server or account you are not expressly authorized to access, or probing the security of other networks.
- Access to Third Party Content Vendor provides its users with the ability to access, and in some instances purchase, goods and services provided by third parties. You will find that purchases of third-party goods and/or services will often be governed by their own separate terms and conditions, which you should review prior to making any purchase. Vendor endeavors to provide its users with access to first-class quality products and services, but does not warrant or guarantee the quality of content, products or services made available through Software Site. However, if you experience any problems with any third-party good or services, contact our Account Management personnel, and they will promptly investigate the matter.
- Use of Data Vendor shall have the right to maintain and use such information and other data and records pertaining to you and other users of Software Site in the internal operation, administration and management of Software Site and may provide such information to the courts, law enforcement agencies or others involved in prosecuting claims or investigations for conduct or conditions alleged or believed to be illegal or to violate or threaten the rights of any person. Nothing in this Section shall be construed to limit Vendor's use of, or rights in, other information not covered by the terms of this Section. Vendor acts only as a passive conduit for online storage and distribution of your files and data. Vendor reserves the right to remove from Software Site servers any files or data that may damage Software Site systems or create liability for Vendor or its suppliers or licensors. You hereby consent to such removal and waive any claim arising out of any such files and data removal. In addition, you acknowledge and agree that Vendor may itself be required to grant access to a third party in response to any lawful subpoena or other form of legal compulsion. You hereby consent to such legal production and waive any claim arising out of any such legal production.
- Modification of Terms; Termination, Cancellation, and Suspension
- Modification of Terms. Vendor frequently updates, modifies, and otherwise continually seeks to improve Software Site. Such changes often dictate that we simultaneously modify our terms of service. As such, Vendor shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of Software Site, in either case as it deems reasonably necessary. Such changes shall be effective immediately upon posting of such addition, change, or deletion. Any use by you of Software Site after any such change has been posted shall constitute your acceptance of any such changes. If you do not agree with any such changes, you may cancel use of Software Site in accordance with the procedures for cancellation set forth in this Agreement. You acknowledge and agree that it is your responsibility to review this Agreement from time to time and to be aware of any such changes. The current version of this Agreement may be obtained by calling a Software Site Account Representative and may also be posted on the Software Site web site.
- Termination, Cancellation and/or Suspension. This Agreement and the rights granted hereunder may be terminated, cancelled and/or suspended by Vendor at any time. Such termination, cancellation and/or suspension by Vendor shall be effective immediately upon notification by Vendor to you in any reasonable manner, including but not limited to, notification by e-mail. In addition Vendor may elect to suspend, terminate and/or cancel this Agreement and/or recover any and all damages from you arising from or relating to the event(s) giving rise to the suspension, termination or cancellation if such suspension, termination or cancellation related to your breach of any of the provisions of this Agreement. You are free to terminate or cancel this Agreement at any time, and for any reason; provided, however, for termination or cancellation of a subscription-fee based account to be effective you must carry out such termination in accordance with the policies and procedures established by Vendor, which will be posted in the "Billing" area in our support center located at (http://bigcontacts.helpserve.com/index.php?_m=knowledgebase&_a=view&parentcategoryid=2&pcid=1&nav=0,1) or similar location within Software Site. Vendor shall NOT refund to you any fees paid in advance of such termination, and you shall be required to pay 100% of Vendor's standard monthly charge for each month remaining in the term, unless otherwise expressly provided herein. Either party may also immediately terminate this Agreement if a party (i) terminates or suspends its business operations or the offering of the Software Site; (ii) becomes subject to any bankruptcy or insolvency proceeding; (iii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority; or (iv) has wound up its business or been liquidated, voluntarily or otherwise.
- Rights Upon Termination, Cancellation and/or Suspension. Upon termination, cancellation and/or suspension of this Agreement, you are responsible for any obligations then accrued which may include, without limitation, payment of any costs or charges that may arise in connection with such termination, cancellation and/or suspension, and payment of all monthly subscription and storage fees, if any, through the entire billing month in which said termination, cancellation and/or suspension occurs. Your payment and other obligations under this Agreement are not suspended, stayed, or otherwise affected by a suspension of your access to or use of Software Site (in whole or in part) where said suspension arises from your failure to comply with, or your violation of, the terms of this Agreement or of any law or legal obligation. Upon termination and/or cancellation, for any reason, you agree to immediately cease using Software Site. Further, upon any termination and/or cancellation, Vendor reserves the right to immediately remove, purge, delete and destroy any and all data that existed in the terminated and/or cancelled account, and Vendor shall have no obligation to you after any termination or cancellation of this Agreement.
- No Warranties or Liabilities
- "As Is" Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF SOFTWARE SITE AND THE INTERNET GENERALLY IS AT YOUR OWN RISK AND THAT SOFTWARE SITE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. VENDOR WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE ACCESS TO SOFTWARE SITE AVAILABLE TO YOU THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRANTY OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS SOFTWARE SITE AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
- Additional Limitations. Without limiting the generality of the terms set forth in Section 8.a., Vendor and its affiliates, agents, content providers, service providers, and licensors:
- HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, NONINFRINGEMENT, MERCHANTABLITY OR FITNESS FOR PARTICULAR PURPOSE OF SOFTWARE SITE GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF SOFTWARE SITE GENERALLY AND ANY CONTENT OR SERVICES CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE;
- SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS IN SOFTWARE SITE GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN;
- SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF, RESULTING FROM, OR RELATING IN ANY MANNER TO THE USE OR INABILITY TO USE SOFTWARE SITE GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN. WITHOUT IN ANY WAY LIMITING THE FOREGOING, VENDOR SHALL IN NO EVENT HAVE (IN THE AGGREGATE) ANY LIABILITY WHATSOEVER IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF AN AMOUNT EQUAL TO TWO TIMES THE LOWEST MONTHLY SUBSCRIPTION FEE FOR YOUR SOFTWARE SITE ACCOUNT IN EFFECT FOR THE MONTHLY BILLING PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST CLAIM MADE BY YOU ALLEGING LIABILITY. THE SOLE AND EXCLUSIVE REMEDY AGAINST VENDOR FOR USERS OF THE ADVERTISING-SUPPORTED VERSION OF SOFTWARE SITE IS CANCELLATION OF THE ACCOUNT.
- High Risk Activities. SOFTWARE SITE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF SOFTWARE SITE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). IN ADDITION TO THE OTHER DISCLAIMERS AND LIMITATIONS CONTAINED WITHIN THIS AGREEMENT, VENDOR AND ITS AFFILIATES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS AND LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, VENDOR'S LIABILITY (AND THE LIABILITY OF ITS AFFILIATES, AGENTS, CONTENT PROVIDERS AND SERVICE PROVIDERS) SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
- Third Party Beneficiaries Notwithstanding anything to the contrary contained herein, the provisions for "No Warranties or Liabilities" set forth herein are for the benefit of Vendor and its affiliates, agents, content providers and service providers and each shall have the right to assert and enforce such provisions directly on its own behalf.
- Indemnification You agree to indemnify, hold harmless, and defend Vendor and its affiliates, agents, content providers and service providers, against any and all claims, liabilities, damages, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, attorneys' fees and disbursements) arising from or relating to the use of Software Site in any manner which violates the terms of this Agreement or otherwise violates any law, rule, or regulation.
- U.S. Government Rights If you are acquiring Software Site on behalf of any part of the United States Government, the following provisions apply. Software Site is deemed to be "commercial software" and "commercial computer software documentation" respectively, pursuant to DFAR Section 227.7202 and FAR 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of Software Site by the United States Government or any of its agencies shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
- General
- Confidentiality. You shall (i) not disclose Vendor's Confidential Information except to your authorized employees and contractors to the extent necessary to perform this Agreement; (ii) protect Vendor's Confidential Information against disclosure with the same degree of care as you protects your own, though in no event will you exercise less that ordinary care; and (iii) notify Vendor of unauthorized use, disclosure, theft or other loss of Confidential Information of which you learn.
- Assignment. This Agreement and all rights and obligations hereunder shall not be sold, leased, assigned or otherwise transferred by you without the prior written consent of Vendor, such consent not to be unreasonably withheld or delayed; provided that such consent shall not be required if you assign this Agreement to a wholly owned subsidiary or in connection with a merger, acquisition, or sale of all or substantially all of its assets, unless the surviving entity is a competitor of Vendor. This Agreement shall be binding upon your permitted successors and assigns.
- Force Majeure. Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, provided, however, this provision shall not apply to any payment obligations.
- Choice of Law/Arbitration. This Agreement shall be governed by the laws of the State of Georgia. All unresolved disputes arising under this Agreement shall be submitted to arbitration in Atlanta, Georgia under the rules of the American Arbitration Association. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction.
- Notices. All notices and other communications required under this Agreement shall be in writing and delivered by hand, by electronic mail, by overnight express with charges prepaid, or by certified mail with return receipt requested. Notices shall be deemed received when delivered.
- Entire Agreement; Construction, Severability, Waiver. This Agreement, and all mutually executed Schedules and Addenda together with any additional online documents specifically referred to herein, is the complete and exclusive agreement of the parties and supersedes all other communications, oral or written, between the parties relating to the Agreement's subject matter. No provision of this Agreement will be construed against a party because it drafted the provision. If any provision of this Agreement is held to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Neither the failure nor any delay to exercise a right, remedy or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of a right, remedy or privilege preclude any further exercise of the same.
- Permission. Within reason, you agree that Vendor may send informational transmissions to your account (or corresponding e-mail address) regarding, for example, updates and/or announcements regarding Software Site, scheduled maintenance and the like.