Bigeye Startup Package Master Software Agreement
Toro Data Labs, Inc. dba Bigeye, Inc. (“Bigeye”), a Delaware corporation, with its principal place of business located at 32 Mandalay Pl, South San Francisco, CA 94080, USA and Customer (as defined below) on behalf of itself and its affiliates, agree as follows:
The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement. Capitalized terms not defined in this Agreement are defined in the Order Form.
1.1. “Applicable Laws” means all applicable laws, statutes, ordinances, regulations, rules, and self-regulatory guidelines.
1.2. “Authorized User” means Customer’s employees or contractors who Customer authorizes to access and use the Product; provided, however, that any contractors’ access to and use of the Product will be limited to their provision or receipt of services to or from Customer. Customer is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Product using any of Customer’s or its Authorized Users’ access credentials.
1.3. “Confidential Information” means: (i) with respect to Bigeye, the Product, the Improvements, and any and all source code relating to any of the foregoing, and any other non-public information or material regarding Bigeye’s legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to Customer, the Customer Content, Customer Analytics, and any other non-public information or material regarding Customer’s legal or business affairs, financing, Authorized Users, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement; but (iv) not Usage Data or Aggregate Data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
1.4. “Customer” means the entity that executes an Order Form.
1.5. “Customer Analytics” means any and all reproductions, visualizations, analyses, automations, scales, and other reports output by the Product based on Customer Content.
1.6. “Customer Content” means any data, media, and other materials that Customer and its Authorized Users submit or upload to the Product pursuant to this Agreement.
1.7. “Destructive Elements” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would (i) cause the Product to cease functioning; (ii) in any way damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of the Product, including, without limitation, Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
1.8. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Product, as may be provided or made available by Bigeye to Customer, whether in a written or electronic form or through the Website.
1.9. “Fees” means, as applicable, (i) the fees for the SaaS Product set forth on the Website or the applicable Order Form (including Unit Price and Total), (ii) the fee for the Professional Services set forth in the applicable Order Form, and (iii) any other applicable fees provided for in this Agreement, on the Website, or in an Order Form.
1.10. “Improvements” means all modifications, improvements, enhancements, extensions, new versions, new modules, and other changes to the Product developed by Bigeye, which may be made available by Bigeye to its customers from time to time. Customer may purchase Improvements under an Order Form.
1.11. “Order Form” means a quote given through the Website a subscription to the Bigeye “Startup Package” that the Customer executes by making any payment of the amount of Fees quoted. Order Forms shall specify its Fees for the Startup Package.
1.12. “Product” or “Saas Product” means Bigeye’s proprietary software made accessible through Bigeye’s website and hosted by Bigeye that Customer may access and use pursuant to the terms and conditions of this Agreement, any applicable Order Form, and any Updates that Bigeye makes available to Customer from time to time.
1.13. “Professional Services” means the professional services ordered by Customer pursuant to an Order Form. Such Professional Services may include, without limitation, onboarding and implementation assistance and Product training.
1.14. “Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains Destructive Elements; or (viii) is otherwise objectionable to Bigeye in Bigeye’s sole, but reasonable, discretion.
1.15. “Subscription Term” means the first thirty (30) days after the Customer executes an Order Form and every thirty (30) thereafter that the Order Form is renewed consistent with Section 2.2, not to exceed three- hundred and sixty-five (365) days.
1.16. “Table” means a table-level object in the Customer’s data environment and includes views, virtual tables, or standard tables.
1.17. “Updates” means any corrections, fixes, patches, workarounds, and minor modifications denominated by version changes to the Product that Bigeye provides in connection with this Agreement. All version numbers shall be reasonably determined by Bigeye in accordance with normal industry practice.
1.18. “Website” means Bigeye’s website located at https://www.bigeye.com/.
2.1. License Grant. Subject to the terms and conditions of this Agreement and the applicable Order Form, Bigeye hereby grants to Customer a limited, non-exclusive, non-transferable license (except as expressly provided in Section 12.1) during a Subscription Term, without the right to grant sublicenses, to authorize Authorized Users to access and use the Product and Documentation solely for Customer’s internal use.
2.2. License Renewal. Upon the end of a Subscription Term, that Order Form will renew for an additional thirty (30) days for the same Quantity and at the same Unit Price; except that an Order Form will expire (i) if at any time before the end of the current Subscription Term, a Party provides the other Party written notice declining renewal, in which event the Order Form will expire on the current Subscription End or
(ii) in any event, at the end of the three-hundred and sixty-fifth (365th) day of the Order Form’s total Subscription Term.
2.3. Quantity. The Order Form’s Quantity means the number of Tables per Subscription the Customer is authorized to connect to the Product at any one time. There is no rollover of Quantity or credit to other periods or Order Forms.
2.4. Modifications. Bigeye may modify the Product from time to time to improve the user experience; provided, however, that during any Subscription Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality of the Product.
2.5. Service Levels and Support. Customer may request support assistance with respect to the Product; Bigeye uses commercially reasonable efforts to respond to support questions. Bigeye, or its contractors, shall host the SaaS Product, periodically monitor the SaaS Product to optimize performance thereof, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond Bigeye’s reasonable control, as provided in Section 12.8 below. Bigeye’s Service Level Agreement and Support Services policy are attached as Exhibit 1, which is hereby incorporated by reference and is subject to this Agreement.
2.6. Professional Services. Customer may elect to order Professional Services pursuant to one or more Order Forms agreed on by the Parties.
3. FEES AND PAYMENT.
3.1. Fees and Taxes.
a. All Fees are due and payable as set forth below. Bigeye will provide Customer written notice of other pricing at least seven (7) days before renewal of an Order Form.
b. Fees and other charges described on the Website or in an Order Form are in addition to and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which will be for Customer’s account.
c. Any applicable direct pay permits or valid tax-exempt certificates must be provided to Bigeye prior to the execution of this Agreement.
d. Customer must pay all federal, state, local, sales, use, value-added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement. For the avoidance of doubt, Bigeye will only be responsible for any taxes related to Bigeye’s income, property, franchise, or employees.
e. If Bigeye is required to collect and remit Taxes on Customer’s behalf, Bigeye will invoice Customer for such Taxes, and Customer will pay Bigeye for such Taxes in accordance with Section 3.4. Customer will defend, indemnify, and hold harmless Bigeye, its suppliers, its hosting providers, and its and their respective officers, directors, managers, employees, contractors, and agents from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any Taxes and related costs, interest, and penalties paid or payable by Bigeye on Customer’s behalf.
3.2. New Components. If Bigeye adds new features or components during the Order Form’s Subscription Term (“New Components”) for which Bigeye charges separate fees, Bigeye will publish supplemented pricing on or before the date of general availability, and Customer will be charged for usage of such New Components in accordance with such pricing.
3.3. Excess Usage. If Customer exceeds the Order Form’s Quantity, Customer will pay an additional Unit Price (net of any discount agreed as part of the initial Order Form) per extra Table.
3.4. Payments. In connection with the Product and any Professional Services, Customer will pay the Order Form’s Total each month via the Website. For any other Fees, Bigeye will invoice Customer for the Fees as provided on the Website or in an Order Form, as applicable, and any applicable Taxes. Unless otherwise provided for on the Website or in the applicable Order Form, all undisputed amounts are due and payable to Bigeye within thirty (30) days from the date of such invoice.
3.5. Late Payments. In the event that any undisputed invoiced amount is not received by Bigeye by the due date as set forth in Section 3.4, then without limiting Bigeye’s rights and remedies, Bigeye may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law); (ii) terminate this Agreement in accordance with and pursuant to Section 4.2; and/or (iii) exercise such remedies that may be permitted under this Agreement. Customer will promptly reimburse Bigeye for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees Bigeye incurs, to the extent necessitated by Customer’s refusal to pay any invoiced amounts that Customer does not dispute in good faith.
3.6. Non-Refundable. Unless otherwise expressly provided for in this Agreement, on the Website, or in the applicable Order Form, (i) all Fees are based on SaaS Product Quantity, and not on actual use, and (ii) all Fees paid under this Agreement are non-refundable.
3.7. No Contingency for Future Commitments. Unless otherwise expressly provided for on the Website or in the applicable Order Form, Customer’s payment of the Fees under this Agreement and any applicable Order Form is not contingent on the delivery of any future Product functionalities, or features, or any other future commitments.
4.1. Term. This Agreement takes effect upon Customer’s execution of an Order Form continues until the
expiration of the Order Form’s Subscription Term, at which time this Agreement shall terminate.
4.2. Effect of Termination. Upon termination of this Agreement: (i) Customer will stop all access to and use of the Product; (ii) Customer will promptly pay all unpaid Fees and applicable Taxes due through the effective
date of termination; and (iii) upon written request, each Party will return to the Disclosing Party (or, at such Disclosing Party’s instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party’s Confidential Information that are in the Receiving Party’s possession or control.
4.3. Survival. The following provisions will survive termination of this Agreement: Section 1 (Definitions), Section 3 (Fees and Payment) until Customer has paid all Fees and applicable Taxes, Section 4.3 (Effect of Termination), this Section 4.4 (Survival), Section 5 (Confidentiality; Feedback), Section 6 (Intellectual Property), Section 9.4 (Disclaimer), Section 10 (Limitation of Liability), Section 11 (Indemnification), and Section 12 (General Provisions).
5. CONFIDENTIALITY; FEEDBACK.
5.1. Confidentiality. The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, advisers, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed and will use commercially reasonable efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
5.2. Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 5.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in, any act which violates Section 5.1, the Disclosing Party may be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of Section 5.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
5.3. Feedback. While this Agreement is in effect, Customer may elect to provide Bigeye with feedback, comments, and suggestions with respect to the Product, the Improvements, or the Professional Services (“Feedback”). Bigeye will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer.
All right, title, and interest in and to the Product, the Documentation, the Usage Data, the Aggregate Data, Improvements, Updates, and any other materials that Bigeye provides in connection with this Agreement, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all intellectual property rights therein, will be and remain the sole and exclusive property of Bigeye and its licensors. Except as otherwise provided in this Agreement or in an Order Form, all right, title, and interest in and to the Customer Content and Customer Analytics, and all proprietary rights therein, will be and remain Customer’s sole and exclusive property.
7. RESTRICTIONS ON USE; COMPLIANCE.
7.1. Restrictions on Use. Customer will not (and will not authorize, permit, or encourage any Authorized User or third party to): (i) allow anyone other than Authorized Users to access and use the Product; (ii) allow an Authorized User to share his or her access credentials with other Representatives of the Customer or any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Product; (iv) modify, adapt, or translate the Product; (v) make any copies of the Product; (vi) resell, distribute, or sublicense the Product or use any of the foregoing for the benefit of anyone other than Customer or the Authorized Users, without authorization from Bigeye; (vii) save, store, or archive any portion of the Product (including, without limitation, any source code contained therein) outside the Product other than those outputs generated through the intended functionality of the Product as set forth in the Documentation without the prior, written permission of Bigeye in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Product; (ix) use the Product in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (x) introduce, post, or upload to the Product any Prohibited Content; (xi) circumvent any processes, procedures, or technologies that Bigeye has put in place to safeguard the Product; or (xii) interfere with or attempt to interrupt the proper operation of the Product. Upon Bigeye’s request, Customer will use commercially reasonable efforts to assist Bigeye in preventing and enforcing these restrictions. Customer will ensure that its Authorized Users comply with these restrictions and Customer will be fully liable for any Authorized User’s failure to do so.
7.2. Compliance. Bigeye has the right, but not the obligation, to monitor Customer’s and its Authorized Users’ compliance with this Agreement. If any such monitoring reveals that Customer or its Authorized Users are not using the Product in compliance with this Agreement, then Customer will remedy any such non- compliance within five (5) business days of receiving notice from Bigeye, including, if applicable, through the payment of additional Fees.
8. CUSTOMER CONTENT AND CUSTOMER ANALYTICS; AGGREGATE DATA.
8.1. Customer Content and Customer Analytics. Subject to the terms and conditions of this Agreement, Customer grants Bigeye a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to Bigeye (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Content and Customer Analytics solely for the purpose of providing Customer with access to and usage of the Product hereunder. Bigeye shall treat any Customer Personal Data (as defined below) pursuant to the Data Processing Addendum attached hereto as Exhibit 2, which is hereby incorporated by reference and is subject to this Agreement.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
9.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and Order Forms; (ii) the execution, delivery, and performance of this Agreement and Order Forms and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
9.2. Bigeye’s Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 9.1, Bigeye represents and warrants to Customer that (i) the Professional Services will be performed in a professional and workmanlike manner; and (ii) Bigeye will comply with all Applicable Laws in performing its obligations hereunder.
9.3. Customer’s Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 9.1, Customer represents and warrants to Bigeye that: (i) the Customer Content contains no Prohibited Content; (ii) Customer has the right to provide and use the Customer Content in accordance with this Agreement; and (iii) Customer’s authorized use of the Product pursuant to the terms of this Agreement, including, without limitation, the submission and processing of the Customer Content, complies with all Applicable Laws.
9.4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 AND SECTION 9.2, THE PRODUCT, ANY UPDATES, ANY IMPROVEMENTS, THEIR COMPONENTS, ANY DOCUMENTATION, CUSTOMER ANALYTICS, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND BIGEYE MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
10. LIMITATION OF LIABILITY.
10.1 General Limit. EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 7.1, OR FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORM REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR ANY ORDER FORM WILL NOT EXCEED THE FEES PAID BY CUSTOMER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY. THE FEES WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF BIGEYE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER THIS AGREEMENT.
10.2 Infringement Claims. In the event that Bigeye reasonably determines that the Product or any portion thereof is likely to be the subject of a claim that Customer’s access to and use of the Product in accordance with this Agreement infringes or misappropriates any patents, copyrights, or trade secrets, Bigeye will have the right (but not the obligation), at its own expense, to: (i) procure for Customer the right to continue to use the Product as provided in this Agreement and any applicable Order Form; (ii) replace the infringing components of the Product with other components with equivalent functionality; or (iii) suitably modify the Product so that it is non-infringing and functionally equivalent. If none of the foregoing options is available to Bigeye on commercially reasonable terms, Bigeye may terminate this Agreement and/or any applicable Order Form immediately without further liability to Customer and refund Customer a pro-rated portion of any pre-paid Fees. This Section 10.2 states Customer’s sole and exclusive remedy, and Bigeye’s sole and exclusive liability, regarding any Claim.
Customer will defend, indemnify, and hold harmless Bigeye, its licensors, its hosting providers, and its and their respective officers, directors, managers, employees, contractors, and agents from any and all damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by such parties in connection with any third-party action, claim, or proceeding alleging incurred by such parties in connection with any Claim: (a) alleging that the Customer Content infringes or misappropriates any patents, copyrights, or trade secrets, or (b) arising from or in connection with Customer’s or any of its Authorized Users’ breach or violation of this Agreement, any Order Form, or Applicable Law (each, a “Claim”).
12. GENERAL PROVISIONS.
12.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement or any Order Form without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement or any Order Form in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement and any Order Form will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
12.2. Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
12.3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard for choice of law provisions thereof.
12.4. Exclusive Forum. The Parties hereby consent and irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the County of San Francisco in the State of California for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement or any Order Form and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum.
12.5. Notices. All notices required under this Agreement (other than routine operational communications) must be in writing and will be delivered either personally or by e-mail (other than notices under Section 4.2 which may not be delivered by e-mail), national overnight courier or the U.S. Postal Service to each Party’s notices contact and address listed in the applicable Order Form. Notices will be effective upon: (i) actual delivery to the other Party, if delivered in person or by e-mail (other than notices under Section 4.2, which may not be made via e-mail), or national overnight courier; or (ii) five (5) business days after being mailed via the U.S. Postal Service, postage prepaid.
12.6. Independent Contractors. As between themselves, the Parties are independent contractors. Neither Party will have any right, power, or authority to obligate the other Party or will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose.
12.7. Severability. If any provision of this Agreement or any Order Form is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement or Order Form will remain in full force and effect. Any provision of this Agreement or any Order Form which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
12.8. Force Majeure. Except for Customer’s obligations to pay any Fees and Taxes hereunder, neither Party will be deemed to be in breach of this Agreement or any Order Form for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, quarantine or other similar governmental action, mass disease, epidemic or pandemic (e.g. COVID-19), public health requirement unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
12.9. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement or any Order Form.
12.10. Publicity. Customer hereby expressly consents to Bigeye’s use of Customer’s name and logos solely in order to refer to Customer as a customer of Bigeye in marketing materials, on the Website, and in information provided to investors and prospective investors. Bigeye’s use of Customer’s name and logos shall comply with any branding guidelines and other instructions provided to Bigeye by Customer in writing. Bigeye will cease use of Customer’s name and logos upon the termination of this Agreement. Neither Party shall directly or indirectly obtain or attempt to obtain any right, title or interest in or to the other Party’s names, trade names, trademarks, service marks, or logos. Customer may opt out of all publicity by emailing email@example.com and requesting to be opted-out of. Bigeye will promptly cease all use of Customer’s name and logos upon receiving an opt-out request.
12.11. Export. Customer will not export or re-export, either directly or indirectly, the Product or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re- export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, Customer will not permit Authorized Users or any third parties to access or use the Product in violation of any United States export embargo, prohibition, or restriction.
12.12. Complete Understanding. This Agreement, and all executed Order Forms and addenda thereto, constitute the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. To the extent of any conflict or inconsistency between this Agreement and any term contained in an Order Form, the terms of this Agreement will govern, unless such Order Form includes the section numbers of this Agreement that the Parties expressly agree are modified for the matters covered thereby. No term included in any confirmation, acceptance, purchase order, or any other similar document from Customer will change this Agreement or any Order Form or have any force or effect.
Exhibit 1 to the Master Software Agreement (“MSA”) BIGEYE SERVICE LEVEL AGREEMENT (“SLA”)
This SLA states Customer’s sole and exclusive remedy for any failure by Bigeye to meet the Service Commitment (as defined below).
Bigeye will use commercially reasonable efforts to make SaaS Product available with a Monthly Uptime Percentage (defined below) of at least 99% during any calendar month (the “Service Commitment”). In the event the SaaS Product does not meet the Service Commitment, Customer will be eligible to receive Service Credits by following the process in this SLA.
“Downtime” means loss of all access to Bigeye by all End Users.
“Downtime Period” means a period of at least five consecutive minutes of Downtime.
“Monthly Uptime Percentage” means the total number of minutes in a month, minus the number of Downtime minutes suffered during Downtime Periods in a month, divided by the total number of minutes in a month. “Service Credit” is a dollar credit based on pro-rated fees, calculated as set forth below, that Bigeye may credit to Customer’s next invoice for failure to meet the Service Commitment.
6. Additional Benefits. The following are included within Support Services:
Exhibit 2 to the Master Software Agreement (“MSA”) DATA PROCESSING ADDENDUM
1. Scope and Applicability of this Data Processing Addendum (“DPA”).
This DPA applies to the extent that Bigeye Processes (defined below) Customer Data (defined below) on behalf of Customer as Processor (defined below) in the course of performing its obligations under the MSA (“Services”)
2.1 “CCPA” means the California Consumer Privacy Act of 2018, as may be amended from time to time.
2.2 “Controller”, “Processor”, “Data Subject” and “Process” (including all conjugations of Process) whether or not capitalized have the meanings ascribed to them by the GDPR (as defined below) and include equivalent terms in CCPA and other applicable Data Protection Laws.
2.3 “Customer Data” means all data, if any, made accessible by Customer to Bigeye’s Product to enable the provision of the Services
2.4 “Customer Personal Data” means any Customer Data that is Personal Data.
2.5 “Data Protection Laws” means GDPR, CCPA and all other laws and regulations applicable to the Processing of Personal Data within the United States, the European Economic Area (“EEA”) and its member states, Switzerland, and the United Kingdom.
2.6 “GDPR” means, as applicable (i) the General Data Protection Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC,(ii) the United Kingdom’s Data Protection Act 2018, or (iii) Switzerland’s Federal Data Protection Act of 19June 1992.
2.7 “Personal Data”: (a) in reference to residents of Restricted Countries, means any data falling within the definition of “personal data” under the applicable GDPR in reference to individuals located in the EEA and/or its member states, Switzerland, and/or the United Kingdom (collectively, “Restricted Countries”);(b) in reference to California residents, means “Personal Information” as defined in CCPA; and (c) in reference to residents of other jurisdictions, incorporates materially equivalents definitions of similar terms under applicable data privacy or protection laws of that resident’s jurisdiction.
2.8 “Security Incident” means a breach of security that results in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data through the Product.
3. Handling of Customer Data
3.1 General Processing Conditions. Should Bigeye process Customer Personal Data, it will do so only in order to perform its obligations under the MSA or with Customer’s prior consent.
3.2 Processing in Accordance with Data Protection Laws. Customer may be the controller or a processor of Personal Data. Each party will comply with the obligations that apply to it under Data Protection Laws should Bigeye – while providing the Services – act as a processor or sub-processor (as appropriate) of thatPersonal Data. Customer warrants to the extent that it is a processor, that its instructions and actions with respect to that Customer Personal Data, including its appointment of Bigeye as another processor, have been authorized by the relevant controller. Bigeye will promptly inform Customer if it becomes aware that processing requested by Customer infringes Data Protection Laws.
3.3 Cooperation and Data Subjects’ Rights. Taking into account the nature of the processing, to the extent Customer cannot fulfill such obligations directly via the Services, and at Customer’s expense, Bigeye shall provide commercially reasonable assistance to Customer to enable Customer to respond to: (a) any request from a data subject to exercise any of its rights under applicable Data Protection Laws (including rights of access, correction, objection, erasure and data portability, as applicable); and (b) any other correspondence, inquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Customer Personal Data. Bigeye will promptly forward to Customer any such request, correspondence, inquiry or complaint that is made directly to Bigeye.
3.4 Customer Data Return and Disposal. Within 30 days after a written request by Customer or the termination or expiration of the MSA, Bigeye will: (a) if requested by Customer, provide Customer with a copy of Customer Data in Bigeye’s possession, if any, that Customer does not already have; and (b)securely destroy all Customer Data in Bigeye’s possession, if any, in a manner that makes such CustomerData non-readable and non-retrievable. Notwithstanding the foregoing, Bigeye may retain copies ofCustomer Data: (x) to the extent Bigeye has a separate legal right or obligation to retain some or all of theCustomer Data; and (y) in backup systems until the backups have been overwritten or expunged in accordance with Bigeye’s backup policy.
3.5 International Outbound Transfers. Bigeye shall not transfer (nor shall Customer request that Bigeye transfer) any Customer Personal Data outside of the Restricted Countries unless such transfer complies with applicable Data Protection Laws. Without prejudice to the foregoing, Customer consents to transfers outside of the Restricted Countries where Bigeye has implemented a transfer solution compliant withData Protection Laws, which for example may include: (a) where such transfer is subject to an adequacy decision by the European Commission; (b) the Standard Contractual Clauses for the Transfer of PersonalData to Processors Established in Third Countries approved by EC Commission Decision of 5 February 2010or any successor clauses adopted in accordance with GDPR (“Standard Contractual Clauses”); (c) another appropriate safeguard applies pursuant to Article 46 of GDPR or other provisions of Data Protection Laws; or (d) a derogation pursuant to Article 49 of GDPR.
3.6 Sub-processing. Customer consents to Bigeye engaging Bigeye affiliates and third party sub-processors to process Customer Data to carry out Bigeye’s obligations under the MSA. For clarity, this sub-section 3.6(Sub-processing) constitutes Customer’s general consent for Bigeye’s engagement of onward sub-processors under the Standard Contractual Clauses. Bigeye will maintain an up-to-date list of its sub-processors on its website, which it will update with information regarding any change in sub-processors at least 10 days prior to any such change, thereby giving Customer the opportunity to object to such changes. Except for the hosting provider for the Bigeye software licensed under the MSA (e.g., AWS),Bigeye shall impose data protection terms on any sub-processor it appoints that are equivalent to those imposed on Bigeye in this DPA.
3.7 Data Protection Impact Assessment. At Customer’s expense and so long as Customer does not otherwise have access to the relevant information, Bigeye will provide reasonably requested information regarding the Services to enable Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws.
On Customer’s written request and subject to the privacy and confidentiality obligations set forth in the MSA or an appropriate NDA in the case of third parties or, as Bigeye may request, of Customer personnel, any audit requirements under Data Protection Laws will be satisfied as follows.
4.1 Bigeye will make available to Customer a summary of its most recent SOC 2 audit report.
4.2 Not more than once per year, Bigeye will also respond to a Customer security questionnaire and (at Customer’s expense) meet by teleconference or in person to address follow up questions.
4.3 Customer may contact Bigeye to request an audit in a mutually agreed virtual environment, not more than once per year, of the procedures relevant to the protection of Customer Personal Data. Customer shall not be permitted to retain any information, data, documents or other materials obtained fromBigeye during this audit without Bigeye’s prior written consent. Before the commencement of any such audit, Customer and Bigeye shall mutually agree upon the scope, timing, and duration of the audit and the reimbursement for any expenses Bigeye incurs in the course of such audit.
5. Security Measures.
5.1 Bigeye Security Responsibilities. Bigeye will use reasonable and appropriate technical and organizational safeguards on its Services designed to protect the confidentiality, integrity, and availability of Customer Personal Data that may be in Bigeye’s custody.
5.2 Customer Responsibilities. Without limiting Bigeye’s obligations in this DPA and the MSA, Customer acknowledges it is responsible for the integration of the Services to Customer’s data sources and data warehouses. Notwithstanding any other provision of this DPA, the MSA or any other agreement related to the Services, Bigeye will have no obligations or liability as to any loss resulting from: (i) Customer’s environment, source and target data repositories, systems or software, or (ii) Customer’s security configuration or administration of the Services. In particular:
a. Customer is responsible for security relating to its environment, particularly its source systems and target warehouse, and security relating to its configuration of the Services. This includes implementing and managing procedural, technical, and administrative safeguards on its systems and networks sufficient to:(i) ensure the confidentiality, integrity, and availability of Customer Data while in the source and target systems; and (ii) protect against any unauthorized processing, breaches, loss, use, disclosure or acquisition of or access to Customer Data.
b. Customer is responsible for backing up its Customer Data as appropriate.
c. Customer is solely responsible for provisioning users on the Services, including: (i) methods of authenticating users (such as industry-standard secure username/password policies); (ii) managing administrator privileges; (iii) deauthorizing personnel who no longer need access to the Services;
(iv) setting up any API usage in a secure way; and (v) regularly auditing any public access links users create and restricting the permission to create public links, as necessary
d. Customer is responsible for securing the account authentication credentials, systems, and devices Customer uses to access the Services;
e. In order to use the Services, Customer must authorize the Services to access Customer’s databases or source systems. When granting authorization, Customer should follow the principle of least privilege toCustomer database information, especially by granting no more than read-only access to database data.
6. Security Incident Notification and Resolution.
6.1 Security Incident Notice. If Bigeye becomes aware of a Security Incident, Bigeye shall notify Customer without undue delay by email or, if email is unavailable, by phone.
6.2 Cooperation. Bigeye will provide reasonable information and cooperation to Customer so that Customer can fulfill any data breach reporting obligations it may have under (and in accordance with the timescales required by) applicable Data Protection Laws, taking into account the nature of the processing and the information available to Bigeye. Notwithstanding the foregoing, Customer acknowledges that becauseBigeye personnel do not have visibility to the content of Customer Personal Data, it will be unlikely thatBigeye can provide information as to the particular nature of the Customer Personal Data, or where applicable, the identities, number or categories of any affected Data Subjects.
6.3 No-Fault Communications. Communications by or on behalf of Bigeye with Customer in connection with a Security Incident shall not be construed as an acknowledgment by Bigeye of any fault or liability with respect to the Security Incident.
Effective July 25, 2023