STANDARD TERMS AND CONDITIONS FOR ENTERPRISE CUSTOMERS
These Standard Terms and Conditions form a part of any order form (an “Order Form” and, together, this “Agreement”) entered into by the applicable BigSpring entity and the customer, each as specified in the Order Form (respectively, “BigSpring” and “Customer”), and are binding as of the effective date of the applicable Order Form (the “Effective Date”). Each of BigSpring and Customer are referred to herein as a “Party”, and collectively, as the “Parties”.
WHEREAS, BigSpring has developed and provides its proprietary learning, coaching and productivity platform on a software-as-a-service basis made available through BigSpring’s websites and software applications (the “BigSpring Service”).
WHEREAS, BigSpring wishes to provide to Customer, and Customer wishes to obtain, the opportunity to offer access to the BigSpring Service to its personnel, all as described below.
NOW, THEREFORE, the Parties hereto agree as follows:
1. BigSpring Service.
1. Access and Use. Subject to the terms and conditions of this Agreement, BigSpring will make the BigSpring Service available to Customer’s employees, individuals contracted to Customer performing services for Customer, and other users authorized by the Customer to use the BigSpring Service in connection with Customer’s business (collectively, “Users”) during the term of the applicable Order Form through BigSpring’s websites and mobile applications associated with the BigSpring Service, all in accordance with the terms of this Agreement, solely for their personal use. Customer will use best efforts to market and promote the availability of the BigSpring Service to Users during the Term (defined below).
3. Service Guidelines. Customer shall not, and shall not permit or assist any User or other third party to (i) interfere with the performance of the BigSpring Service or the data contained therein; (ii) attempt to gain unauthorized access to the BigSpring Service or the networks or systems related to the BigSpring Service; (iii) interfere with another’s use of the BigSpring Service; (iv) use the BigSpring Service for the benefit of, or provide the BigSpring Service to, third parties other than Users; (v) modify, copy, or make derivative works based on the BigSpring Service; (vi) disassemble, reverse engineer, or decompile the technology powering the BigSpring Service or any software applications associated with the BigSpring Service; (vii) access the BigSpring Service to build or access another learning, coaching and/or productivity service; or (viii) disclose any of the BigSpring Service’s User IDs, passwords, tokens, keys or other similar access credentials except where required by law, provided that the Customer shall make reasonable efforts to provide BigSpring with prior written notice of such compelled disclosure and shall only disclose to the extent required by law.
4. Service Fees. Customer shall pay BigSpring the fees for the BigSpring Service as specified in the Order Form (“Service Fees”). Additional fees may apply to certain additional BigSpring Service features and add-ons, as may be specified in the Order Form or a mutually agreed addendum thereto. BigSpring reserves the right to update the Service Fees for any renewal of any Order Form, provided that BigSpring gives Customer at least sixty days’ notice of such Service Fee adjustments.
2. Additional Services.
1. Additional Services. Any custom video content development, implementation, training, or other professional services not provided for under this Agreement or the Order Form (“Additional Services”), are subject to a separate written professional services agreement and statement of work entered into by the Parties (“PSA”).
2. Licenses. If the Additional Services include the provision of a Customer/BigSpring co-branded interface or other Customer-branded experiences on the BigSpring Service for Customer’s Users, then Customer hereby grants to BigSpring the non-exclusive right to use Customer’s name, logos, and other trademarks in connection with such purposes. If the Additional Services include the provision of a communications plan and/or templated multimedia assets and information related to the BigSpring Service, then BigSpring hereby grants to Customer a limited, non-exclusive right to reproduce such materials and distribute them to its Users in connection with its employee communications.
3. Customer Support. Customer will be responsible for providing level one support services to its Users; i.e. being the first point of contact and using its reasonable commercial efforts to solve the User’s issues, and BigSpring will provide to Customer level two email support services; i.e. working with Customer to attempt to resolve issues that Customer is unable to resolve through reasonable commercial efforts. BigSpring has no obligation under this Agreement to provide support directly to Users.
4. Payment. Customer shall pay all Service Fees within thirty days after the date of BigSpring’s invoice. All Service Fees exclude sales, value-added, goods and services (GST), use, and other taxes, all of which are Customer’s responsibility, except for BigSpring’s income taxes. Late payments hereunder will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower.
1. Confidential Information. “Confidential Information” means all information of a Party (“Discloser”) disclosed to the other Party (“Recipient”) where such information should be reasonably understood, based on the nature of the information or the circumstances of its disclosure, to be proprietary or confidential. Notwithstanding the foregoing, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Recipient’s breach of any obligation owed to the Discloser; (ii) was independently developed by the Recipient without the Recipient’s breach of any obligation owed to the Discloser; or (iii) is received from a third party who obtained such Confidential Information without breaching any obligation owed to the Discloser.
2. Non-Use; Non-Disclosure. The Recipient shall not (i) use any of the Discloser’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement, or (ii) disclose Discloser’s Confidential Information to anyone other than its personnel (including employees, contractors, and consultants) who have a need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by written agreement that prohibits unauthorized disclosure or use of Confidential Information and that is at least as protective of the Confidential Information as the Recipient’s obligations hereunder. In no event shall either Party exercise less than reasonable care in protecting such Confidential Information. However, the Recipient may disclose Confidential Information of the Discloser to the extent required by law, provided that the Recipient shall make reasonable efforts to provide the Discloser with prior written notice of such compelled disclosure and reasonable assistance (at Discloser’s expense) if the Discloser wishes to seek protective treatment of the Confidential Information.
6. User Content and Customer Content.
1. Generally. The BigSpring Service may permit Users to upload content to the BigSpring Service, including messages, photos, videos, text, recordings and other types of works (collectively, “User Content”), and to publish such User Content on the BigSpring Service. The BigSpring Service may also permit Customer to upload (or to have BigSpring upload for Customer) Customer’s proprietary training materials for use by its Users (and other users, should Customer so choose) (such materials, “Customer Content”).
3. Disclaimer. BigSpring is under no obligation to edit or control User Content or Customer Content, and BigSpring will not be in any way responsible or liable for User Content or Customer Content. Customer will ensure that all User Content and Customer Content complies with all applicable laws and regulations, will monitor its Users’ User Content, and promptly will remove (or request that BigSpring remove) any User Content or Customer Content that violates any law or regulation. BigSpring reserves the right, however, to screen, remove, edit, or block, at any time and without prior notice, any User Content and Customer Content that in BigSpring’s sole judgment violates this Agreement or is otherwise objectionable, at BigSpring’s sole discretion and for any or no reason, including if such User Content or Customer Content: (i) infringes the intellectual property rights of third parties; (ii) is of an adult nature and is submitted or shared without any warning to other users; (iii) is excessive in length; or (iv) is of a seditious tendency. Customer understands that when using the BigSpring Service, its Users may be exposed to content from a variety of sources and acknowledges that such content may be inaccurate, offensive, indecent, or objectionable. Customer agrees to waive, and does waive, any legal or equitable right or remedy Customer has or may have against BigSpring with respect to User Content.
7. Reservation of Rights. As between BigSpring and Customer, BigSpring retains all rights, title, and interest, including all intellectual property rights in and to, the BigSpring Service and all enhancements, modifications, and improvements to the foregoing. All rights not expressly granted hereunder are reserved to BigSpring. BigSpring reserves and shall have the right to generate statistical information relating to or derived from Customer’s and its Users’ use of the BigSpring Service (“Usage Data”), and BigSpring may use such Usage Data for any purpose including research and development. Customer may, but is not obligated to, provide BigSpring with information, suggestions, or other feedback with respect to the BigSpring Service or Additional Services (“Feedback”). Customer hereby grants to BigSpring a worldwide, nonexclusive, perpetual, irrevocable, transferable, royalty-free, fully paid-up, sublicensable license to use and exploit such Feedback for any purpose without restriction.
8. Representations and Warranties.
1. BigSpring. BigSpring represents and warrants that it will provide the BigSpring Service in a professional manner, consistent with applicable law and applicable industry standards.
2. Customer. Customer represents and warrants that (i) Customer has the necessary rights and permissions or approvals to use and to permit the use of any User Content and Customer Content posted or shared on the BigSpring Service or otherwise provided by Customer or its Users to BigSpring hereunder, including any such User Content and Customer Content that may have been externally sourced or may have otherwise originated with a third party; (ii) Customer will not provide to BigSpring any personal data or personally identifiable information in violation of any contractual or other obligations, including Customer’s privacy policies and applicable laws (including, as applicable to Customer, the California Consumer Privacy Act of 2018, the Singapore Personal Data Protection Act 2012, and the India Information Technology Act of 2000 and rules framed thereunder or any other enactment); and (iii) Customer Content, and the use of such Customer Content as contemplated by this Agreement, does not and will not: (A) infringe, violate, or misappropriate any third party right, including any intellectual property right, privacy right, or right of publicity; (B) slander, defame, or libel any person; or (C) cause BigSpring or its users to violate any law or regulation.
3. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION 8, THE BIGSPRING SERVICE AND THE ADDITIONAL SERVICES ARE PROVIDED “AS IS”, AND WITHOUT WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIGSPRING HEREBY DISCLAIMS ALL OTHER WARRANTIES UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE BIGSPRING SERVICE, AND THE ADDITIONAL SERVICES, AND ALL CONTENT, INFORMATION, AND MATERIALS PROVIDED THEREWITH, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
1. By BigSpring. BigSpring shall defend or, at its option, settle any third party claim, suit or proceeding (“Claim”) brought against Customer alleging that the use of the BigSpring Service by Customer or its Users in accordance with this Agreement infringes any third party patent, copyright or other intellectual property right. BigSpring shall have sole control of the defense or settlement negotiations, and BigSpring agrees to pay, subject to the limitations set forth below, any final judgment entered against Customer or agreed to in settlement by BigSpring as a result of such infringement in any such Claim defended by BigSpring; provided that Customer provides BigSpring with (i) prompt written notice of such Claim; and (ii) all reasonably requested information and assistance, at BigSpring’s expense, to settle and/or defend any such Claim.
2. Additional Rights. In the event that any Claim covered by Section 9(a) is brought or, in BigSpring’s opinion, likely to be brought, BigSpring may, at its sole option and expense: (i) procure for Customer the right to continue to use the BigSpring Service; (ii) modify or amend the BigSpring Service, or replace the BigSpring Service with non-infringing services that do not materially impair the functionality of the Service; or (iii) if either of the foregoing is not feasible on commercially reasonable terms, terminate this Agreement and refund on a pro-rata basis any fees prepaid by Customer to BigSpring.
3. Limitations. BigSpring shall have no obligation to Customer under Section 9(a) to the extent a Claim arises from (i) Customer’s breach of this Agreement; (ii) User Content, Customer Content, or other third party content; or (iii) use of the BigSpring Service in combination with any products, services, data, software, hardware or business process not contemplated by this Agreement, if the alleged infringement would not have occurred absent such combination.
4. Sole Remedy. THIS SECTION 9 STATES THE ENTIRE LIABILITY OF BIGSPRING, AND THE SOLE REMEDY OF CUSTOMER, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
5. By Customer. Customer shall defend or, at its option, settle any Claims brought against BigSpring and its partners and employees to the extent they allege breach of any of Customer’s warranties set forth in Section 8. Customer shall have sole control of the defense or settlement negotiations, and the Customer agrees to pay, subject to the limitations set forth below, any final judgment entered against BigSpring or agreed to in settlement by the Customer as a result of such breach. Customer agrees to pay any final judgment entered against BigSpring as a result of such breach. BigSpring agrees to provide Customer with (a) prompt written notice of such Claim; and (b) available information and assistance, at Customer’s expense, to settle and/or defend any such Claim.
10. Limitation of Liability.
1. Disclaimer of Damages. EXCEPT FOR A BREACH OF SECTION 5 OR AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO A PARTY’S OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Cap on Liability. EXCEPT FOR A BREACH OF SECTION 5 OR AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO A PARTY’S OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID AND PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
3. Basis of the Bargain. The limitations of liability stated above form an essential basis of the bargain between the Parties and will survive and apply even if found to have failed of their essential purpose.
11. Term and Termination.
1. Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier as described below, shall continue for the initial term set forth in the Order Form or, if no initial term is specified therein, for a period of two years (the “Initial Term”). Thereafter, unless otherwise specified in the Order Form, the Agreement will automatically renew for additional periods of one year (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either Party gives the other Party at least thirty days’ notice of non-renewal.
2. Termination. Either Party may terminate this Agreement for convenience with thirty days’ prior written notice after one year, provided that if Customer terminates for convenience, Customer shall not be entitled to a refund of any prepaid fees. Either Party may terminate this Agreement if the other Party materially breaches this Agreement and fails to cure such breach within thirty days after receipt of written notice of same.
3. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) BigSpring may immediately cease to provide the BigSpring Service to Customer and its Users; and (b) within thirty days after such expiration or termination, each Party shall return or destroy the tangible embodiments of the other Party’s Confidential Information in its possession, provided that BigSpring may retain certain Confidential Information of Customer solely for purpose of providing future services to Customer and where required by applicable laws.
4. Survival. Sections 4, 7, 8(c), 9, 10, 11(c-d), and 12 will survive any expiration or termination of the Agreement.
1. Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, fire, flooding, labor shortages or disputes, governmental acts, or disruption of the Internet or telecommunications.
2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of (i) the State of California if the contracting BigSpring entity is BigSpring, Inc. , (ii) Singapore if the contracting BigSpring entity is BigSpring Private Limited, and (iii) India if the contracting BigSpring entity is BigSpring Services Private Limited, in each case without regard to their conflicts of law principles.
3. Arbitration. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by binding arbitration in accordance with the following terms:
(i) If the contracting BigSpring entity is BigSpring, Inc., arbitration shall be in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in force. Judgment upon the award rendered by the arbitrator(s) may be entered into any U.S. federal or state court having jurisdiction thereof. The arbitration will occur in the Northern District of California. The tribunal shall consist of one arbitrator. The language of the arbitration shall be English.
(ii) If the contracting BigSpring entity is BigSpring Private Limited, arbitration shall be administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause for purposes of this Section 12(c)(ii). The arbitration will occur in Singapore. The tribunal shall consist of one arbitrator. The language of the arbitration shall be English.
(iii) If the contracting BigSpring entity is BigSpring Services Private Limited, arbitration shall be administered by the SIAC in accordance with the SIAC Rules for the time being in force, which rules are deemed to be incorporated by reference in this clause for purposes of this Section 12(c)(iii). The place and seat of the arbitration shall be Mumbai, India. The tribunal shall consist of one arbitrator. The language of the arbitration shall be in English.
4. Injunctive Relief. Notwithstanding Section 12(c), to the extent permitted by applicable law, Discloser may seek immediate equitable and other provisional relief in any court having jurisdiction in the event of breach of Section 5 by Recipient. If the contracting BigSpring entity is BigSpring Services Private Limited, the Parties shall have the right to competent courts in Mumbai, India to seek interim relief, including for appeals and enforcements thereto.
5. Remedies Cumulative. The remedies provided to the Parties under this Agreement are cumulative and will not exclude any other remedies to which a Party may be lawfully entitled, except to the extent expressly limited by this Agreement.
6. Severability. If any provision of this Agreement is held by an arbitration tribunal or a court of competent jurisdiction to be unenforceable, such provision shall be modified by written agreement of the Parties or deemed modified by the court or arbitration tribunal so as best to accomplish the original intent of the Parties, and the remaining provisions of this Agreement shall remain in effect.
7. Promotion. BigSpring may use Customer’s name and marks to identify Customer as a user of the BigSpring Service in marketing, promotional and sales materials, provided that such references are accurate and not misleading, and such references shall not indicate or imply any endorsement by, or affiliation with, Customer, without Customer’s prior written consent.
8. Assignment. Neither Party may assign this Agreement or any of its rights or obligations under this Agreement without the other Party’s prior written consent, except that BigSpring may assign this Agreement without Customer’s consent to an affiliate or upon a change of control, merger, or sale or transfer of all or substantially all of its business related to this Agreement. Any attempted assignment in violation of the foregoing will be void. This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
9. Independent Contractors. The Parties are independent contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties.
10. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement and nothing in this Agreement creates any rights in any non-party. Without limiting the generality of the foregoing, a non-party to this Agreement does not have any rights under or in connection with it by virtue of the Singapore Contracts (Right of Third Parties) Act (Cap 53B).
11. Entire Agreement. This Agreement is the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior understandings and agreements regarding its subject matter. No terms or conditions set forth in Customer’s purchase order or any other document shall alter or supplement this Agreement. This Agreement may only be amended or modified by a writing signed by both Parties.
12. Execution in Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument. The Agreement may be executed and delivered by .pdf and the Parties agree that such .pdf execution and delivery will have the same force and effect as delivery of an original document with original signatures.
13. Stamping. if the contracting BigSpring entity is BigSpring Services Private Limited, the stamp duty on this Agreement shall be borne by Customer.
14. Notice. Except as specifically provided herein, all notices required hereunder shall be in writing and shall be given by: (i) personal delivery, in which case notice shall be deemed effective upon personal delivery; or (ii) international or national overnight courier service, in which case notice shall be deemed effective one (1) business day following deposit with the international or national overnight courier service. The addresses for giving notice shall be the Parties’ respective addresses set forth in the applicable Order Form, or any other address as shall be specified by a Party in a written notice to the other Party.