User terms

These User Terms of Use & Service (these “User Terms”) are provided to you (“you”) by Big Wheelbarrow, Inc. (“BWI”, “we” or “us”) to explain the terms and conditions of your access to and use of BWI’s web-based software application accessible at app.bigwheelbarrow.com or any other web-based or downloadable software application offered by BWI and referencing these User Terms (collectively, the “Application”) and the services BWI provides via the Application (collectively, together with the Application, the “Service”).

THESE USER TERMS, TOGETHER WITH OUR ACCEPTABLE USE POLICY AND OUR PRIVACY POLICY, EACH OF WHICH IS INCORPORATED BY REFERENCE INTO THESE USER TERMS, ARE A LEGALLY BINDING CONTRACT BETWEEN YOU AND BWI. PLEASE READ THEM CAREFULLY. BY REGISTERING FOR A BWI USER ACCOUNT (YOUR “USER ACCOUNT”) OR OTHERWISE BY ACCESSING OR USING THE SERVICE, OR BY CONTINUING TO ACCESS OR USE THE SERVICE AFTER BEING NOTIFIED OF A CHANGE TO THESE USER TERMS OR THE ACCEPTABLE USE POLICY OR PRIVACY POLICY AFTER BEING NOTIFIED OF A CHANGE THERETO, YOU ARE CONFIRMING, AND HEREBY REPRESENT, THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE USER TERMS, INCLUDING OUR ACCEPTABLE USE POLICY AND PRIVACY POLICY. IF YOU DO NOT AGREE TO ANY TERMS OR CONDITIONS PROVIDED IN THESE USER TERMS (OR IN OUR ACCEPTABLE USE POLICY OR PRIVACY POLICY), YOU MAY NOT ACCESS OR USE THE SERVICE.

  1. Modifications.

As our business evolves, we may make changes to these User Terms. If we make a material change to these User Terms, we will provide you with notice prior to such change taking effect, in any manner deemed reasonable by us, in its reasonable discretion, based upon the nature of such change and its materiality, including, but not limited to, by e-mailing you at the e-mail address associated with your User Account or by messaging you through the Service. You can review the then-current version of these User Terms at any time by visiting this page and by visiting the then-current versions of the other pages that are referenced in these User Terms. Any materially revised version of these User Terms will become effective on the date set forth in the notice provided to you, and all other changes will become effective upon posting of the revised User Terms. If you access or use the Service after the effective date of any revised terms and conditions of a revised version of these User Terms, that use will constitute your acceptance of such revised terms and conditions.

  1. Customer; Authorized User.

You are being asked to accept these User Terms because either (a) you, as the Customer, have registered for a BWI customer account (“Customer Account”) on your own behalf, or (b) an organization (e.g., your employer) or other third party, as the Customer, has invited you or otherwise authorized you to register for a User Account as an authorized user under that Customer’s Customer Account (an “Authorized User”). As used in these User Terms, the “Customer” refers to either you (if you registered for a Customer Account as an individual) or such organization or third party, as applicable.  These User Terms remain effective until the Customer Account terminates, until you terminate your User Account, or until your access to the Service has been terminated by the Customer or by us. Please contact the Customer if you, at any time or for any reason, wish to terminate your User Account, including if based upon a disagreement with any updates or modifications to these User Terms or the Acceptable Use Policy or Privacy Policy.

  1. Customer Agreement.

All User Accounts are subject to the terms and conditions set forth in the separate written Services Agreement entered into between the Customer and BWI, which incorporate BWI’s Customer Terms of Service (the “Customer Agreement”), which permitted the Customer to invite or otherwise authorize you and others to access and use the Service as Authorized Users under that Customer’s Customer Account. The Customer Agreement describes the Customer’s and our rights and obligations with respect to the Service.

  1. User Account.
    1. User Account Setup. By registering for a user account with BWI via the Service (your “User Account”), you hereby represent and warrant to BWI that all information provided by you in connection with such registration (“User Information”) is accurate, complete and up to date. You may change, correct or remove any User Information at any time by logging into your User Account via the Service. BWI may additionally provide you the ability to register for your User Account using your existing account with a Third-Party Site and to use your access credentials for such Third-Party Site account to authenticate your BWI User Account.
    2. User Account Security. You are exclusively responsible for maintaining the confidentiality of your username, password and other access credentials used to access your User Account, including your access credentials for any Third-Party Site that BWI permits you to use to access your BWI User Account (collectively, your “User Access Credentials”). You agree that you will not share, let others access or use, or do anything else that might jeopardize the security of your User Access Credentials. In the event that any of your User Access Credentials is lost or stolen or you become aware of any unauthorized use of the User Access Credentials, or of any other breach of security in relation to the Service, you agree to immediately notify BWI and, if applicable, the Customer.
  2. User Submissions.
    1. Ownership. If you have registered for your User Account on your own behalf, you will own any and all data, information or other content that you enter, transmit, submit or otherwise provide via the Service, such as comments, messages or files, that data, information or content (“User Submissions”). If you have been invited to the Service by a Customer, however, you acknowledge and agree that your User Submissions will be owned by that Customer and that the Customer Agreement provides the Customer with many choices and control over your User Submissions. For example, the Customer may provision or deprovision access to the Service and manage your access and use permissions, and these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all of your User Submissions.
    2. Responsibility for User Submissions. YOU AGREE THAT, AS BETWEEN BWI AND THE CUSTOMER, IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (i) INFORM YOU AND ANY AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES REGARDING AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF YOUR USER SUBMISSIONS; (ii) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU THAT MAY BE NECESSARY FOR THE LAWFUL USE OF YOUR USER SUBMISSIONS; (iii) ENSURE THAT THE TRANSFER AND PROCESSING OF USER SUBMISSIONS UNDER THESE USER TERMS AND THE CUSTOMER TERMS IS LAWFUL; AND (iv) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU RELATING TO OR BASED ON YOUR USER SUBMISSIONS.
    3. Prohibited Content.  You acknowledge that the Service is not designed with security and access management for processing the following categories of information: (i) any personal information that imposes specific data security obligations on the processor of such data, including any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, and other similar information, however described, as defined under applicable law; (ii) data that is classified and/or used on the United States Munitions list, including software and technical data; (iii) articles, services, and related technical data designated as defense articles or defense services; and (iv) ITAR (International Traffic in Arms Regulations) related data (each of the foregoing, “Prohibited Content”). Accordingly, you agree that you will not provide BWI with any Prohibited Content, whether directly or via the Service. You will ensure that your User Submissions do not constitute or contain any Prohibited Content.
    4. Data Backup. BWI will have no obligation to store, backup, archive or otherwise maintain any User Submissions. BWI HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF USER SUBMISSIONS.
    5. Data Security. BWI will maintain administrative, physical, and technical safeguards, at a level no less protective than those customary in the industry, including but limited to measures for preventing unauthorized access, use, modification, deletion and disclosure of User Submissions by BWI personnel. Before sharing User Submissions with any third-party service provider, BWI will ensure that such third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of, and preventing unauthorized access to, such User Submissions. BWI has no responsibility to maintain the security or protection of any User Submissions when not in BWI’s possession or control.
    6. Privacy Policy. All User Submissions are subject to BWI’s Privacy Policy. You hereby consent to all actions taken by BWI with respect to your User Submissions in compliance with the Privacy Policy.
  3. Authority to Agree.

To the extent prohibited by applicable law, the Service is not intended for and should not be used by anyone under the age of sixteen (16). By accepting these User Terms or otherwise accessing or using the Service, you represent that you are over the age of sixteen (16) and are the intended recipient of the Customer’s invitation to create a User Account and to access and use the Service. If either of the representations in the preceding sentence is not true, then you may not access or use the Service for any purpose. Without limiting the foregoing, you must be at least the applicable legal working age where you are located in order to access and use the Service.

  1. Acceptable Use Policy.

All Authorized Users (including you) must comply with our Acceptable Use Policy and remain vigilant in reporting, both to the Customer and to us, any behavior or content you become aware of that violates the Acceptable Use Policy.

  1. Third-Party Sites.

The Service may include certain external links to websites that are not owned or operated by BWI but by a third party, including, without limitation, social networking, blogging and similar websites, and websites that provide question-and-answer forum functionality (collectively, “Third-Party Sites”). You may be provided the ability via the Service to interact or conduct transactions with such Third-Party Sites, and, if applicable, to configure any privacy settings within your account with any such Third-Party Site to permit your activities via the Service to be shared with any contacts stored in such Third-Party Site account. In certain situations, you may be transferred to a Third-Party Site via a link provided via the Service, but it may appear that you are still within the Service. You acknowledge and agree that these Third-Party Sites may have different privacy policies, terms and conditions, user guides, and business practices than BWI. You further acknowledge that your use of any such Third-Party Sites is governed by, and you agree to comply with, the respective Third-Party Site’s privacy policy, terms and conditions, user guides, and business practices with respect to your access to and use of such Third-Party Sites. BWI is providing you with links to Third-Party Sites as a convenience, and BWI does not verify, make any representations or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT BWI WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY OWNER OR OPERATOR OF ANY THIRD-PARTY SITES. Any reference made by BWI, whether via the Service or otherwise, to a third-party product, service, publication, institution, or organization does not constitute or imply BWI’s endorsement or recommendation thereof.

  1. No Warranties.

BWI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICE, WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “ AS AVAILABLE” BASIS. AS BETWEEN CUSTOMER AND BWI, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (a) INFORM YOU AND ANY AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES THAT MAY APPLY TO YOUR ACCESS AND USE OF THE SERVICE; (b) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU THAT ARE NECESSARY FOR YOUR LAWFUL USE OF THE SERVICES; AND (c) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU RELATING TO OR BASED ON THE SERVICE OR THE CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS.

  1. Violations.

If we believe that you have violated any of these User Terms, the Acceptable Use Policy or the Privacy Policy, or any of our other policies in a manner that, in our judgment, may be remedied simply by removal of certain User Submissions or taking other appropriate action, we will, in most cases, ask the Customer to take such action rather than intervene ourselves. We may, however, directly take any action that we deem appropriate (including disabling your User Account) if the Customer does not take appropriate action as requested or we believe that our intervention is required to avoid a credible risk of harm to us, the Service, other Authorized Users, or any third parties.

  1. Proprietary Rights.

BIG WHEELBARROW™ is a trademark of BWI in the United States.  Any and all other Marks shown on the Service or Documentation are protected under Intellectual Property Rights of either BWI or the respective owners of such Marks. Unless otherwise specified in the Agreement, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of BWI, Copyright © 2017- Big Wheelbarrow, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law or otherwise permitted under the Agreement, any reproduction, distribution, modification, retransmission, or publication of any such copyrighted material is strictly prohibited.

  1. Limitation of Liability.

IN NO EVENT WILL EITHER YOU OR BWI HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE AFFECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS YOU ARE ALSO THE CUSTOMER (AND WITHOUT LIMITATION TO OUR RIGHTS AND REMEDIES UNDER THE SERVICES AGREEMENT BETWEEN YOU AND BWI), YOU WILL HAVE NO FINANCIAL LIABILITY TO US FOR A BREACH OF THESE USER TERMS. OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY BREACH OF THESE USER TERMS BY US IS ONE HUNDRED DOLLARS ($100) IN THE AGGREGATE. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND DO NOT LIMIT EITHER PARTY’S RIGHT TO SEEK AND OBTAIN EQUITABLE RELIEF.

  1. Application of Consumer Law.

In the event that you are both the Customer and its Authorized User and have accepted the User Terms on behalf of yourself as an individual, nothing in these User Terms will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies you have, and our liability under these User Terms is limited (at our option) to the replacement, repair or resupply of the Service or the pro-rata refund to you of any pre-paid fees paid to BWI by you as Customer in connection with the Service up to any date of termination of access thereto, if applicable.

  1. Electronic Communications.

By registering for a User Account, you hereby consent to receiving electronic communications from BWI. These electronic communications may include notices about certain transactional and other information concerning or related to the Service. You acknowledge that these electronic communications are necessary in order for BWI to provide the Customer and you with the Service as provided under these User Terms. You further agree that any notices, agreements, disclosures or other communications that BWI sends to you electronically will satisfy any communication requirements under applicable law or under the Agreement, including that such communications be in writing.

  1. Export Regulation.

The Service may utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You agree that you will not, directly or indirectly, export, re-export, or release the Service or any of its underlying technology into, or make the Service or its underlying technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by applicable law, rule, or regulation. You further agree to comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service or any of its underlying technology available outside the United States.

  1. Mandatory Arbitration.
    1. Any dispute or claim relating in any way to your use of the Service or otherwise arising under these User Terms will be resolved by binding arbitration, rather than in court. Notwithstanding the foregoing, any claims qualifying for assertion in small claims court may be brought in such court. The Federal Arbitration Act and federal arbitration law apply to these User Terms. There is no judge or jury in arbitration, and court review of an arbitration award is limited. On an individual basis, however, an arbitrator can award the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must base any outcome on the appropriate interpretation of the terms and conditions of these Terms of Use, just as a court would.
    2. To commence an arbitration proceeding against BWI, you must send a letter requesting arbitration and describing your claim to our registered agent, . The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. BWI will not seek attorneys’ fees or costs in any arbitration that you commence against us unless the arbitrator determines that your claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in Travis County, Texas or any other location that you and BWI may mutually agree upon in advance, in writing. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. 
    3. If, for any reason, a legal suit, action, or other proceeding between BWI and you under these User Terms, (i) we each agree that such proceeding will be instituted exclusively in the federal courts of the United States or the state courts of the State of Texas, in each case located in the County of Travis, (ii) we each irrevocably submit to the exclusive jurisdiction of such courts in any such proceeding and agree that venue in such courts is proper, and (iii) we each waive any right to a jury trial. We also each agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
  2. General Provisions.
    1. Notices. Except as otherwise set forth herein, all notices provided by either you or BWI under these User Terms must be sent by e-mail, although we may instead choose to provide notice to any Authorized User through the Service. Notices to BWI should be sent to support@bigwheelbarrow.com, except for legal notices, which must be sent to legal@bigwheelbarrow.com. A notice sent under these User Terms will be deemed to have been duly given (i) the day after it is sent, in the case of a notice sent through e-mail; and (ii) the same day, in the case of a notice sent through the Service.
    2. Privacy Policy. Please review our Privacy Policy for more information on how we collect and use data relating to the use and performance of the Service.
    3. Waiver. No failure or delay by either party in exercising any right under the User Terms, including the Acceptable Use Policy and Privacy Policy, will constitute a waiver of that right. No waiver under the User Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
    4. Severability. The User Terms, including the Acceptable Use Policy and Privacy Policy, will be enforced to the fullest extent permitted under applicable law. If any provision of the User Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these User Terms will remain in effect.
    5. Assignment. You may not assign any of your rights or delegate your obligations under these User Terms, including the Acceptable Use Policy and Privacy Policy, whether by operation of law or otherwise, without the prior written consent of us (not to be unreasonably withheld). We may assign these User Terms in their entirety (including all terms and conditions incorporated herein by reference), without your consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Any assignment in violation of this Section17(e) will be void and of no effect.
    6. Governing Law. These User Terms are governed by and will be construed in accordance with the state laws of the State of Texas and applicable U.S. federal law, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) do not apply to these User Terms.
    7. Entire Agreement. These User Terms, including any terms incorporated by reference herein, constitute the entire agreement between you and BWI and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. In the event of any conflict or inconsistency between the provisions in these User Terms and any other terms and conditions, agreements or policies incorporated by reference in these User Terms, the terms of these User Terms will prevail.
    8. Survival. Sections 5, 8, 9, and 11 through 17 will survive any termination or expiration of these User Terms.

Contacting BWI

Please feel free to contact us if you have any questions about these User Terms of Use & Service. You may contact us at legal@bigwheelbarrow.com or at our mailing address below:

Big Wheelbarrow, Inc.

Attn: Legal

1124 Leona Street

Austin, Texas 78702

Acceptable use policy

This Acceptable Use Policy (this “Policy”) of Big Wheelbarrow, Inc. (“BWI”, “we” or “us”) sets out a list of acceptable and unacceptable conduct when using any aspect of BWI’s website, located at https://www.bigwheelbarrow.com and any associated BWI websites linked thereto (collectively, the “Site”), BWI’s web-based software application available at app.bigwheelbarrow.com (the “Application”), and the services BWI provides via the Application (collectively, the Site, the Application and such services, the “Service”). If we believe, in our sole discretion, that any user violation of this Policy is deliberate, repeated or presents a credible risk of harm to other users, our customers, the Service or any third parties, we may suspend or terminate your access to the Service. This Policy may change as BWI grows and evolves, so please check back here regularly for any updates we may make.

When accessing or using the Service, you MUST, at all times:

  • comply with the terms of this Policy and with the terms of our Website Terms of Use, and the terms of our Privacy Policy, and, if accessing and using the Application, with the terms of our User Terms of Use & Service, into each of which this Policy is incorporated;
  • comply with all applicable laws and governmental regulations, including, but not limited to, all intellectual property, data, privacy, and export control laws, and regulations promulgated by any government agencies, including, but not limited to, the U.S. Securities and Exchange Commission, and any rules of any national and other securities exchanges;
  • upload to and disseminate through the Service only content to which you (or, if applicable, the BWI customer on behalf of which you are uploading or disseminating such content) owns all required rights under law and under contractual and fiduciary relationships (such as proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements) and do so only consistent with applicable law;
  • use commercially reasonable efforts to prevent unauthorized access to or use of the Service;
  • keep passwords and all other login information confidential;
  • monitor and control all activity conducted through your account in connection with the Service;
  • if applicable, promptly notify us if you become aware of or reasonably suspect any illegal or unauthorized activity or a security breach involving your User Account, including any loss, theft, or unauthorized disclosure or use of your login credentials for your User Account; and
  • comply in all respects with all applicable terms of any third-party applications integrated with the Service that you access or subscribe to in connection with the Service.

When accessing or using the Service, you must NOT:

  • permit any third party to access your User Account or your login credentials for your User Account;
  • share, transfer or otherwise provide access to the User Account designated for you to another person;
  • use the Service to store or transmit any content that may infringe upon or misappropriate someone else’s trademark, copyright, or other intellectual property, or that may be tortious or unlawful;
  • upload to, or transmit from, the Service any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component or a technology that unlawfully accesses or downloads content or information stored within the Service or on the hardware of BWI or any third party;
  • attempt to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Service (including any mechanism used to restrict or control the functionality of the Service), or any part thereof, any third-party use of the Service, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
  • attempt to gain unauthorized access to the Service or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Service;
  • access the Service in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Service;
  • use the Service in any manner that may harm minors or that interacts with or targets people under the age of thirteen;
  • impersonate any person or entity, including, but not limited to, an employee of ours, or an Account Admin, Report Admin or other Authorized User, or falsely state or otherwise misrepresent your affiliation with a person, organization or entity;
  • use the Service to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act or other laws and regulations concerning national security, defense or terrorism;
  • access, search, or create accounts for the Service by any means other than our publicly supported interfaces (for example, “scraping” or creating accounts in bulk);
  • send unsolicited communications, promotions or advertisements, or spam;
  • send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
  • sublicense, resell, time share or similarly exploit the Service;
  • access or use the Service on behalf of, or for the benefit of, any patent assertion entity;
  • use contact or other user information obtained from the Service (including email addresses) to contact authorized users outside of the Service without their express permission or authority or to create or distribute mailing lists or other collections of contact or user profile information for authorized users for use outside of the Service; or
  • authorize, permit, enable, induce or encourage any third party to do any of the above.

Contacting BWI

Please feel free to contact us if you have any questions about this Acceptable Use Policy. You may contact us at legal@bigwheelbarrow.com or at our mailing address below:

Big Wheelbarrow, Inc.

Attn: Legal

1124 Leona Street

Austin, Texas 78702

Online customer terms of service

EXHIBIT A

BIG WHEELBARROW

Customer Terms of Service

Last Updated: April 11, 2019

These Customer Terms of Service (these “Customer Terms”) are provided by Big Wheelbarrow, Inc. (“BWI”) to describe the rights and responsibilities of the individual or entity defined as “Customer” in the Order Form in connection with which these Customer Terms are provided by BWI (“Customer”) when accessing and using BWI’s web-based software application accessible at app.bigwheelbarrow.com or any other web-based or downloadable software application offered by BWI and referencing these Customer Terms (collectively, the “Application”) and the services BWI provides via the Application (collectively, the “Service”).

These Customer Terms, together with the Order Form and BWI’s User Terms, Website Terms, Acceptable Use Policy, and Privacy Policy, each of which is hereby incorporated into these Customer Terms by reference, form a binding agreement between BWI and Customer (collectively, the “Agreement”). BWI and Customer may be referred to herein, individually, as a “Party” and, together, as the “Parties.”

PLEASE READ THESE CUSTOMER TERMS CAREFULLY. BY REGISTERING FOR A BWI CUSTOMER ACCOUNT (“CUSTOMER ACCOUNT”) OR OTHERWISE BY ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO ENTER INTO THESE CUSTOMER TERMS ON BEHALF OF CUSTOMER, AND YOU HEREBY REPRESENT AND WARRANT TO BWI THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE CUSTOMER TERMS, AND (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BWI. FURTHER, IF YOU ARE ENTERING INTO THESE CUSTOMER TERMS ON BEHALF OF AN ORGANIZATION AS CUSTOMER, YOU HEREBY REPRESENT AND WARRANT TO BWI THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE CUSTOMER TERMS ON BEHALF OF SUCH ORGANIZATION AND TO BIND SUCH ORGANIZATION TO ALL TERMS AND CONDITIONS OF THE AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL WHO ACCEPTS THESE CUSTOMER TERMS ON BEHALF OF CUSTOMER. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE CUSTOMER TERMS, CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.

BWI may modify or replace these Customer Terms at any time. If BWI makes any material change to these Customer Terms, then prior to such change taking effect, BWI will provide Customer with notice, in any manner deemed reasonable by BWI, in its reasonable discretion, based upon the nature of such change and its materiality, including, but not limited to, by e-mailing Customer at the e-mail address associated with the Customer Account or by messaging Customer through the Service. Customer can review the then-current version of the Customer Terms at any time by visiting this page and by visiting the then-current versions of the other pages that are referenced in these Customer Terms. Any materially revised version of these Customer Terms will become effective on the date set forth in such notice provided to Customer, and all other changes will become effective upon BWI’s posting of the revised Customer Terms at this page. If Customer (or any Authorized User) accesses or uses the Service after the effective date of any revised terms and conditions of a revised version of these Customer Terms, that use will constitute Customer’s acceptance of such revised terms and conditions.

  1. Definitions. Capitalized terms used in these Customer Terms have the respective meanings given to such terms in Schedule 1 hereto.
  2. Customer Account.
    1. Account Setup. Following the Effective Date, BWI will set up the Customer Account and will provide Customer with an access code or other login credentials (the “Customer Account Credentials”) for access and administration of the Customer Account by one Authorized User appointed by Customer as administrator of the Customer Account (the “Account Admin”).
    2. Customer Information. Customer hereby represents that any and all information provided to BWI by or on behalf of Customer in connection with the Customer Account (the “Customer Information”) is accurate, complete and up to date, and will at all times be maintained as such. Customer may at any time change, correct or remove any Customer Information as set forth on the Help Page, or by any other method provided by BWI in advance via the Documentation.
    3. Customer Account Security. Customer is exclusively responsible for maintaining the confidentiality of the Customer Account Credentials. Customer is further responsible for all activities of Authorized Users that occur within any part of the Service when accessed using the Customer Account Credentials. Customer will not share, let others access or use, or do anything else that might jeopardize the security of the Customer Account Credentials. In the event that any part of the Customer Account Credentials is lost or stolen or Customer becomes aware of any unauthorized access to or use of the Customer Account Credentials, or of any other breach of security in relation to the Service, Customer agrees to notify BWI immediately.
  3. Authorized Users; User Accounts.
    1. Authorized Users. Customer will have the right to authorize users within its organization to access and use the Service in connection with the Customer Account (each an “Authorized User”). The number of Authorized Users that Customer may have under the Customer Account at any given time during the Service Term will be limited to the maximum number of Authorized Users indicated in the Order Form. Customer acknowledges that the Service is not intended for and should not be used by anyone under the age of sixteen (16). Customer must therefore ensure that all Authorized Users are at least sixteen (16) years of age.
    2. User Accounts. The Account Admin will set up an account for each Authorized User (each a “User Account”) and provide each such Authorized User with the credentials for accessing the account. Prior to any Authorized User first accessing the Service, the Authorized User must read, accept and agree to the User Terms, as indicated during the User Account setup process.
    3. Responsibility for Compliance by Authorized Users. Customer will inform all Authorized Users of any Customer policies and practices relevant to their use of the Service and will ensure all Authorized Users’ compliance with the Agreement, including but not limited to the User Terms and BWI’s Acceptable Use Policy. Customer is responsible and liable for any and all access to and use of the Service and Documentation by Authorized Users, whether directly or indirectly, intentionally or unintentionally, and whether such access or use is permitted by or in violation the Agreement. Without limiting the generality of the foregoing, Customer is responsible for any act or omission of an Authorized User that would constitute a breach of any provision of the Agreement if such act or omission, if done by Customer, would be deemed a breach of the Agreement by Customer.
    4. Corrective Action and Notice. If Customer becomes aware of any actual, threatened or suspected activity of an Authorized User that is in violation of the Agreement, Customer will, and will cause its Authorized Users to, immediately (i) notify BWI of such activity, and (ii) take all reasonable and lawful measures within their respective control that may be necessary to stop such activity and to mitigate its effects.
  4. Access; Use.
    1. Access to and Use of the Service. Subject to Customer’s payment of any and all Fees due hereunder and Customer’s compliance with all terms of the Agreement, BWI hereby grants Customer the right to access and use the Service, and to use the Documentation in connection therewith, and to grant Authorized Users the right to access and use the Service and Documentation, in each case during the Service Term and solely in connection with Customer’s internal business purposes and in accordance with the Agreement. Except for the foregoing limited rights, Customer is granted no other rights in or to any part of the Service.
    2. Access and License to Documentation. As part of the process of setting up the Customer Account, onboarding Customer to the Service, and otherwise throughout the Agreement Term, BWI will provide certain procedural information, instructions, and other information to Customer, whether via onboarding or other e-mails received from BWI, via user manuals or other reference or guidance materials or documentation or materials provided by BWI, including but not limited to the Help Page, any articles or web pages Customer may be directed to by BWI, any guidance provided by BWI via chat messaging platforms, and any other information that may be provided to Customer, whether directly or via the Service (collectively, the “Documentation”). Subject to Customer’s payment of all Fees due hereunder and Customer’s compliance with all terms of the Agreement, BWI hereby grants to Customer a limited, non-exclusive, non-sublicensable (other than to Authorized Users), non-transferable license to use and reproduce the Documentation during the Agreement Term solely for Customer’s internal business purposes in connection with its use of the Service. Customer acknowledges that any obligations expressly provided to Customer via any Documentation are hereby incorporated by reference into these Customer Terms as if stated herein, and that BWI’s ability to provide the Service to Customer is dependent upon Customer’s compliance with all such obligations.
    3. Restrictions on Use. Customer will not, and will not permit any Authorized User or third party to, use the Service or the Documentation for any purpose beyond the scope of rights granted to Customer under the Agreement, including but not limited to Section 4(a) and Section 4(b). Without limiting the generality of the foregoing, except as may be expressly permitted by the Agreement, Customer will not, will not permit any Authorized User or third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of any part of the Service; (ii) copy, modify, translate or create derivative works of the Service or Documentation, in whole or in part; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available to third parties the Service or the Documentation, in whole or in part; (iv) use the Service for timesharing purposes or otherwise for the benefit of any party other than Customer; (v) remove any proprietary notices from the Documentation; (vi) interfere with or disrupt the integrity or performance of the Service; (vii) introduce any open-source software into the Service; (viii) attempt to gain unauthorized access to the Service or their related systems or networks; (ix) use the Service or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law; (x) use the Service or Documentation in any manner for purposes of competitive analysis of the Service or the Documentation in connection with the development, provision or use of a competing service or product, or for any other purpose that might be to BWI’s detriment or commercial disadvantage; or (xi) attempt to do any of the foregoing. Any breach of this Section 4(c) will entitle BWI to immediately terminate the Agreement for cause pursuant to Section 20(b)(i).
  5. Additional Obligations. Customer acknowledges that BWI’s ability to provide the Service to Customer as intended depends upon Customer’s efforts to meet the stated Criteria for Success. Throughout the Agreement Term, Customer will therefore, together with BWI, use commercially reasonable efforts to achieve the Criteria for Success. Notwithstanding the foregoing, neither Party will have any liability to the other, or to any third party, in the event that the Criteria for Success, or any element thereof, are not achieved, whether in the determination of either party or of any third party.
  6. Service Suspensions.
    1. Right to Suspend. Notwithstanding anything to the contrary in the Agreement, BWI reserves the right to temporarily suspend Customer’s and any Authorized User’s access to the any portion or all of the Service (a “Service Suspension”) if BWI reasonably determines that (i) any Authorized User’s use of the Service is in violation of the Agreement; (ii) there is a threat or attack on the Service or any other BWI Technology; (iii) Customer’s or any Authorized User’s use of the Service disrupts or poses a security risk to the Service or any other BWI Technology or to the rights or property of any other customer or vendor of BWI; (iv) any Authorized User is using the Service or any other BWI Technology for fraudulent or illegal activities; (v) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (vi) BWI’s provision of the Service to Customer or any Authorized User is prohibited by applicable law; or (vii) any vendor of BWI has suspended or terminated BWI’s access to or use of any Third-Party Services required to enable BWI to provide the Service; or (viii) Customer is delinquent in its payment of Fees, in violation of Section 9.
    2. Notice of Suspension. BWI will use commercially reasonable efforts to contact Customer prior to or contemporaneously with any Service Suspension; provided, however, that BWI’s exercise of its rights under Section 6(a) is not conditioned upon Customer’s receipt of any such notification.
    3. Resumption of Service. Following any Service Suspension, BWI will use commercially reasonable efforts to reinstate access to the Service as soon as reasonably possible following any determination by BWI, in its sole discretion, that the event giving rise to such Service Suspension is cured.  BWI will use commercially reasonable efforts to promptly update Customer regarding any such resumption of access.
    4. Right to Terminate. In the event of repeated Service Suspensions, regardless of the same or different cause or whether the cause is ultimately cured, BWI may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach of the Agreement, and BWI will have the right to immediately terminate the applicable User Account or the Agreement in its entirety pursuant to Section 18(b)(i), without incurring any liability to Customer or such Authorized User therefor.
    5. Disclaimer of Liability; Reservation of Rights. Notwithstanding anything to the contrary in the Agreement, (i) BWI will not be liable to Customer, any Authorized User or any other third party for any damage, liabilities, losses (including but not limited to any loss of Customer Data or any other data or information or loss of profits) or any other consequences that Customer, any Authorized User or any third party may incur, directly or indirectly, as a result of a Service Suspension; and (ii) any Service Suspension is in addition to any other remedies that BWI may have under the Agreement or otherwise, including but not limited to termination of the Agreement for cause.
  7. Customer Data.
    1. Responsibility for Customer Data. Except as set forth in Section 7(d), Customer is exclusively responsible for all Customer Data (including, but not limited to, Third-Party Data and User-Generated Content), including with respect to its use, accuracy, quality, and reliability. Customer will comply at all times with all terms of the Agreement applicable to Customer Data, including but not limited to this Section 7, and will ensure that its Authorized Users comply at all times with the terms of the User Terms applicable to User-Generated Content. NOTHING IN THE AGREEMENT REQUIRES BWI TO VERIFY, AUTHENTICATE, MONITOR, POLICE OR REMOVE ANY CUSTOMER DATA FROM ITS SYSTEMS.
    2. Supplier/Buyer Data; Third-Party Data. Customer acknowledges that BWI’s ability to provide the Service to Customer depends upon Customer’s compliance with certain obligations related to providing BWI with access to certain data, information and content provided to Customer by its Suppliers or Buyers (as applicable), whether provided to BWI via Customer or directly from such Suppliers or Buyers at Customer’s request (collectively, “Supplier/Buyer Data”). Customer agrees to provide BWI with access to Supplier/Buyer Data as may be set forth in the Documentation. Further, with respect to any and all data, information and content originating with any third-party and provided by Customer to BWI in connection with the Service (including, but not limited to, the Supplier/Buyer Data, but excluding any User-Generated Content) (collectively, “Third-Party Data”), Customer hereby represents and warrants to BWI that Customer has secured all consents and rights necessary to provide such Third-Party Data to BWI hereunder.
    3. Data Backup. The Service does not replace the need for Customer to maintain regular data backups or redundant data archives of the Customer Data. BWI will have no obligation to store, backup, archive or otherwise maintain any Customer Data. BWI HEREBY DISCLAIMS ANY AND ALL LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
    4. Data Security. Except as may be otherwise agreed upon by the Parties, BWI will maintain administrative, physical, and technical safeguards, at a level no less protective than those customary in the industry, including but limited to measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by BWI personnel. Before sharing Customer Data with any third-party service provider, BWI will ensure that such third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of, and preventing unauthorized access to, such Customer Data. BWI has no responsibility to maintain the security or protection of any Customer Data when not in BWI’s possession or control.
    5. Prohibited Content. Customer acknowledges that the Service is not designed with security and access management for processing the following categories of information: (i) any personal information that imposes specific data security obligations on the processor of such data, including any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, and other similar information, however described, as defined under applicable law; (ii) data that is classified and/or used on the United States Munitions list, including software and technical data; (iii) articles, services, and related technical data designated as defense articles or defense services; and (iv) ITAR (International Traffic in Arms Regulations) related data (each of the foregoing, “Prohibited Content”). Customer will not, and will not permit any Authorized User or other person or entity to BWI provide any Prohibited Content to BWI, whether directly or via the Service. Customer is solely responsible for reviewing all Customer Data for inclusion of, and will ensure that no Customer Data constitutes or contains, any Prohibited Content.
    6. Privacy Policy. All Customer Data is subject to BWI’s Privacy Policy. Customer hereby consents to all actions taken by BWI with respect to the Customer Data in compliance with the Privacy Policy. Customer will further comply with any and all obligations provided in the Documentation related to notifying its Suppliers or Buyers (as applicable) of any privacy policy of BWI applicable to such Suppliers or Buyers, including but not limited to any related references or hyperlinks required to be included in communications from Customer to such Suppliers or Buyers.
  8. Customer Results. BWI will process and analyze the Customer Data, including (without limitation) via the Service, and will provide Customer with the results of such processing and analysis (collectively, the “Customer Results”) as further set forth in the Documentation. Notwithstanding any statement appearing on the any part of the Service or any Documentation regarding the timeframe for delivery of any Customer Results, in no event will BWI be liable to Customer or any Authorized User or third party in the event that any Customer Results are not delivered to Customer within any particular delivery timeframe.
  9. Fees; Payment Terms.
    1. Fees. As consideration for access to and use of the Service, Customer will pay BWI the fees set forth in the Order Form (collectively, the “Fees”), in accordance with this Section 9.
    2. Automatic Payments. If Customer has authorized automatic payments for payment of Fees due, Customer is responsible for providing BWI with complete, accurate, and up-to-date payment, billing and contact information and will promptly notify BWI of any changes to such information during the Agreement Term. Automatic payments will be processed. Customer hereby authorizes BWI to charge, or to authorize (on Customer’s behalf) any third-party payment processor to charge such credit card for any and all Fees due, upon the date such Fees become due and payable under the Agreement. If Customer’s payment method provided for automatic payments is declined for any reason when attempted to be processed, BWI reserves the right, in its sole discretion, to suspend Customer access to the Service, without incurring any liability to Customer, until such Fees are paid in full.
    3. Invoicing. With respect to any invoices provided by BWI to Customer as set forth in the Order Form, Customer will pay each such invoice no later than “net” thirty (30) days following the date thereof.
    4. Late Payments. If Customer fails to pay when due any amounts owed to BWI hereunder, without limiting BWI’s other rights and remedies, (i) BWI may charge interest on the past due amount at the rate of one and one half percent (1.5%) per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer will reimburse BWI for all reasonable costs incurred by BWI in collecting any late payments or interest, including reasonable attorneys’ fees, court costs, and collection agency fees; and (iii) if applicable, if such failure continues for ten (10) days or more, BWI may impose a Service Suspension until such amounts are paid in full, as further set forth in Section 6(a), without incurring any liability to Customer.
    5. Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on BWI’s income.
  10. Third-Party Services; Third-Party Links.
    1. Third-Party Services. The Service may include or make use of certain functionality and services provided by third parties that allow BWI to provide or enhance the Service (collectively, “Third-Party Services”). Customer’s use of any Third-Party Services is subject to the applicable third party’s then-current terms and conditions. By accessing or using any such Third-Party Services, Customer acknowledges that it may be agreeing to be bound by such third-party terms and conditions.
    2. Third-Party Sites. The Service and the Customer Results may include certain external links to websites owned or operated by third parties (collectively, “Third-Party Sites”). Customer and its Authorized Users may be provided the ability, via the Service, to interact or conduct transactions with such Third-Party Sites, and, if applicable, to configure any privacy settings within such Authorized User’s account with any such Third-Party Site to permit such Authorized User’s activities via the Service to be shared with any contacts stored in such Third-Party Site account. In certain situations, an Authorized User may be transferred to a Third-Party Site via a link provided via the Service but it may appear that the Authorized User is still within the Service. Customer acknowledges and agrees that the Third-Party Sites may have different privacy policies, terms and conditions, user guides and business practices than BWI, and further acknowledges and agrees that all Authorized Users’ use of Third-Party Sites is governed by the respective Third-Party Site’s privacy policy and terms and conditions. Customer hereby agrees to comply with, and to ensure all Authorized Users’ compliance with, all privacy policies and terms and conditions applicable to access to and use of any such Third-Party Sites. BWI is providing links to the Third-Party Sites to Customer as a convenience, and BWI does not verify, make any representations or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed or any other activities conducted on or through such Third-Party Sites.
    3. Disclaimer. CUSTOMER AGREES THAT BWI WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES OR THIRD-PARTY SERVICES, OR ANY DEALINGS OR COMMUNICATIONS WITH THIRD PARTIES VIA THE SERVICE, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH CUSTOMER’S USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF THE THIRD-PARTY OWNER OR OPERATOR OF ANY SUCH THIRD-PARTY SITE OR THIRD-PARTY SERVICE. Any reference made by BWI, whether as included within any Customer Results or otherwise via the Service, regarding any product, service, publication, institution, or organization of any third-party entity or individual does not constitute or imply BWI’s endorsement or recommendation thereof.
  11. Technical Support.

Subject to the Agreement, and except as otherwise agreed upon between the Parties in writing, BWI will provide Customer with reasonable technical support services in accordance with this Section 11 (the “Support”). BWI will provide the Support during business hours (9:00 am through 5:00 pm Central time), Monday through Friday, with the exclusion of U.S. holidays (the “Support Hours”). Customer may initiate a request Support during the Support Hours by calling 512.790.4244 or at any time by sending an e-mail to support@bigwheelbarrow.com. During the Service Term, BWI will use commercially reasonable efforts to respond to Customer requests for assistance with any technical issues encountered when accessing or using the Service and to remedy such issues. Customer acknowledges, however, that BWI has no obligation to provide Support with respect to any such inquiry or request that relates to any subject matter other than unavailability of the Service, errors in functionality of the Service, or other purely technical issues.

  1. Confidentiality.
    1. Confidential Information Defined. From time to time during the Agreement Term, either Party (the “Disclosing Party”) may disclose or otherwise make available to the other Party (the “Receiving Party”) certain information that would reasonably be understood to be confidential given the nature of such information or the circumstances surrounding its disclosure about its business affairs, products, technology, trade secrets, third-party confidential information, and any other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that (i) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party, as demonstrated by the Receiving Party’s records in existence at the time of such development.
    2. Nondisclosure and Nonuse. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s affiliates and such Party’s and its affiliates’ employees, agents or representatives who have a need to know such Confidential Information, and will use the Confidential Information of the Disclosing Party only as and to the extent necessary for the Receiving Party to exercise its rights or perform its obligations hereunder.
    3. Compelled Disclosures. Notwithstanding anything to the contrary in Section 12(b), each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under the Agreement, including to make required court filings.
  2. Proprietary Rights.
    1. BWI Trademarks. BIG WHEELBARROW™ is a trademark of BWI in the United States.  Any and all other Marks shown on the Service or Documentation are protected under Intellectual Property Rights of either BWI or the respective owners of such Marks.
    2. Copyrighted Material. Unless otherwise specified in the Agreement, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of BWI, Copyright © 2017-2019 Big Wheelbarrow, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law or otherwise permitted under the Agreement, any reproduction, distribution, modification, retransmission, or publication of any such copyrighted material is strictly prohibited.
    3. BWI Technology. Customer acknowledges that (i) as between Customer and BWI, BWI owns and retains all right, title, and interest, including all Intellectual Property Rights, in and to the BWI Technology; and (ii) with respect to Third-Party Sites and Third-Party Services, the applicable third-party providers, owners and operators own and retain all right, title, and interest, including all Intellectual Property Rights, in and related to their respective Third-Party Sites and Third-Party Services.
    4. Customer Data. As between BWI (on the one hand) and Customer and its Authorized Users (on the other hand), Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data, subject to the limited license rights granted to BWI below. Customer (on behalf of itself and all Authorized Users) hereby grants to BWI:
      1. a non-exclusive, fully paid-up, royalty-free, worldwide license during the Service Term to access, process, reproduce, distribute, perform, export, display and otherwise use the Customer Data (A) as may be reasonably necessary for BWI to provide, maintain and update the Service, including to prevent or address service, security, support or technical issues; (B) as required by applicable law or regulation; and (C) as may be expressly permitted in writing by Customer; and
      2. a non-exclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data in connection with BWI’s internal business purposes only and to share the Customer Data with third parties, provided that such Customer Data is shared in an aggregated an anonymized manner and in accordance with BWI’s Privacy Policy.

Customer hereby represents and warrants to BWI that it has secured all rights and consents in and to the Customer Data as may be necessary to grant BWI the foregoing license rights.

  1. Customer Results. As between Customer and BWI, other than with respect to any Customer Data incorporated therein, BWI will own all right, title and interest in and to the Customer Results, including all content included therein. Subject to Customer’s payment of all applicable Fees, if any, BWI hereby grants to Customer a limited, non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license to use, reproduce, and share (internally within Customer’s organization only) the Customer Results, solely for Customer’s internal business purposes.
  2. Feedback. Customer or any Authorized User may send or transmit to BWI, whether by mail, e-mail, telephone, via the Service or otherwise, any communications or materials, including but not limited to any comments, questions, suggestions, or the like, suggesting or recommending changes or improvements to the Service or any part thereof, or to any other BWI Technology, including without limitation, new features or functionality thereof (“Feedback”). Customer hereby assigns to BWI, on Customer’s behalf and on behalf of its Authorized Users, employees, contractors, agents and other representatives, all right, title, and interest in and to the Feedback, including any ideas, know-how, concepts, or techniques contained in the Feedback, and any and all Intellectual Property Rights therein. BWI will have no obligation of attribution or compensation to Customer or any other party with respect thereto, although BWI is not required to use any Feedback.
  3. Reservation of Rights. Except for the limited rights and licenses expressly granted to Customer under the Agreement, nothing herein is intended or will be construed to grant, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the BWI Technology, and BWI reserves all other rights, express or implied.
  4. Limited Warranty; Disclaimers.
    1. Limited Warranty. During the Service Term, BWI will use commercially reasonable efforts, consistent with prevailing industry standards, to provide and maintain the Service in a manner that minimizes errors and interruptions thereto and to provide reasonable technical support to Customer in accordance with Section 11. Customer acknowledges, however, that the Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by BWI or by its third-party service providers, or due to any other cause beyond BWI’s reasonable control. BWI will use reasonable efforts to provide Customer with advance notice (e-mail suffices) of any scheduled disruption to the Service.
    2. Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 13(a), THE SERVICE AND OTHER BWI TECHNOLOGY ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND BWI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BWI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BWI MAKES NO WARRANTY OF ANY KIND THAT THE BWI TECHNOLOGY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY THIRD-PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. NOTWITHSTANDING ANYTHING TO THE CONTRARY PROVIDED IN THE AGREEMENT.
    3. No Professional Advice. The information provided on or through the Service, including but not limited to information provided via the Customer Results and any other information provided to Customer via the Service, and any interpretations of applicable laws or regulations provided therein, is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. Customer should seek independent professional advice from a person who is licensed or otherwise knowledgeable in the applicable area before acting upon any information provided on or through the Service.
  5. Representations and Warranties.
    1. Mutual Representations. Each Party hereby represents and warrants to the other Party that (i) such Party has the right, power, and ability to enter into and perform under the Agreement; (ii) such Party has obtained all necessary rights to grant the rights and licenses granted to the other Party under the Agreement; (iii) such Party’s performance under the Agreement will comply with all applicable laws and regulations.
    2. BWI Representations. BWI hereby represents and warrants to Customer that (i) the Service will at all times comply with all applicable laws and regulations; and (ii) BWI will, at all times during the Service Term, maintain all licenses, permits and other permissions necessary to provide the Service.
    3. Customer Representations. Customer hereby represents and warrants to BWI that (i) the individual accepting the terms of the Agreement on behalf of Customer is authorized to bind Customer to the terms and conditions provided herein; (ii) Customer’s performance of its obligations under the Agreement does not and will not conflict with any obligation of Customer under an agreement between Customer and a third party; and (ii) Customer owns or otherwise has (and, prior to BWI’s receipt thereof, will have) the necessary rights and consents in and to all Customer Data, so that BWI’s receipt, storage, and processing of Customer Data in accordance with the Agreement is in compliance with applicable law and does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any person or entity anywhere in the world.
  6. Indemnification.
    1. BWI Indemnification. BWI will defend and hold harmless Customer and its affiliates and each of their respective officers, directors, members, shareholders, employees, contractors, agents and representatives from and against any and all claim, suit, action, or other proceeding brought by a third party (each a “Claim”) alleging that the Service, the Documentation, or any Customer Results, or any use thereof in accordance with the Agreement, infringes, misappropriates or otherwise violates a valid third-party Intellectual Property Right. BWI will further indemnify Customer for any and all losses, damages, liabilities, costs, fees (including reasonable attorneys’ fees) and penalties (collectively, “Losses”) incurred by Customer in connection with any such Claim. Notwithstanding the foregoing, BWI will have no obligation under this Section 16(a) to the extent such Claim is based upon or arises from (i) Customer Data or any Third-Party Services or Third-Party Sites; or (ii) any modification, combination or development of the Service that is not performed by BWI, including in the use of any API. This Section 16(a) states BWI’s sole liability and Customer’s exclusive remedy with respect to any allegation that the Service, the Documentation, or any Customer Results, or any use thereof, infringes, misappropriates or otherwise violates a third-party Intellectual Property Right.
    2. Customer Indemnification. Customer will defend and hold harmless BWI and its affiliates and each of their respective officers, directors, members, shareholders, employees, contractors, agents and representatives from and against any Claim based upon or arising from (i) the Customer Data, or any use of the Customer Data in accordance with the Agreement, including but not limited to any allegation that the Customer Data infringes, misappropriates or otherwise violates a third-party Intellectual Property Right; or (ii) Customer’s or any Authorized User’s (A) negligence or willful misconduct; (B) use of the Service or Documentation in a manner not authorized by the Agreement; (C) use of the Service in combination with data, software, hardware, equipment or technology not provided by BWI or authorized by BWI in writing; or (D) any modification, combination or development of the Service that is not performed by BWI, including in the use of any API. Customer will further and will indemnify Customer for any and all Losses incurred by BWI in connection with any such Claim.
    3. Indemnification Procedure. The Parties’ respective obligations under this Section 16 are expressly conditioned upon the Party seeking indemnification hereunder (the “Indemnitee”) (i) providing the other Party (the “Indemnifying Party”) with prompt written notice of the relevant Claim, (ii) permitting the Indemnifying Party to assume the exclusive defense and control thereof, and (iii) providing any assistance reasonably requested by the Indemnifying Party in connection with its defense and settlement of such Claim. The Indemnitee will, at its sole cost and expense, have the right to be represented by counsel of its choosing in connection with the Indemnifying Party’s defense of any Claim. The Indemnifying Party will not, without the express written consent of the Indemnitee (not to be unreasonably withheld), settle any Claim if (A) the third party asserting the Claim is a government agency, (B) the settlement arguably involves the making of admissions by such Indemnitee, (C) the settlement does not include a full release of liability for the Indemnitee, or (D) the settlement includes any terms other than a full release of liability for the Indemnitee and a payment of money.
  7. Limitations of Liability. OTHER THAN IN CONNECTION WITH THE PARTIES’ RESPECTIVE OBLIGATIONS UNDER SECTION 16 (INDEMNIFICATION), SECTION 12 (CONFIDENTIALITY) AND SECTION 13 (PROPRIETARY RIGHTS), AND EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL THE FOREGOING LIMITATION LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. The Parties agree that the provisions of this Section 17 represent a fair allocation of the Parties’ respective risks under the Agreement, and the Parties have relied on these limitations in determining whether to enter into the Agreement and the agreed-upon Fees.
  8. Term; Termination.
    1. Agreement Term. The term of the Agreement will commence on the Effective Date and will continue for the Service Term, unless earlier terminated in accordance with Section 18(b) or extended by mutual (the “Agreement Term”).
    2. Termination.
      1. For Cause. Either Party may terminate the Agreement upon notice to the other Party if such other Party commits a material breach of any terms of the Agreement and such breach (A) with respect to BWI as the terminating Party, grants BWI the right to immediately terminate pursuant to either Section 4(c) or Section 6(d); (B) is incapable of cure; or (C) being capable of cure, remains uncured ten (10) days after the non-breaching Party provides the breaching Party with written notice of such breach.
      2. Automatic Termination. The Agreement will terminate automatically if the other Party (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Expiration or Termination. Upon the effective date of any termination of the Agreement, Customer’s right to access the Service will immediately terminate and Customer will, and will instruct its Authorized Users to, immediately cease using the Service and all other BWI Technology. No termination of the Agreement will (i) prejudice or affect any right of action or remedy that has accrued or will accrue to either Party due to the other Party’s acts or omissions prior to the effective date of such termination; (ii) relieve Customer of its obligation to pay any Fees that have accrued or have become payable to BWI under the Agreement as of such date; or (iii) entitle Customer to any refund of Fees paid up to such date. Notwithstanding the foregoing, in the event of Customer’s termination for cause pursuant to Section 20(b)(i), BWI will refund Customer any pre-paid Fees covering any portion of the Service Term remaining upon the effective date of such termination. In no event, however, will any termination of the Agreement relieve Customer of the obligation to pay any Fees payable to BWI for any period prior to the effective date of such termination. In addition, following any such termination, BWI will have no obligation to store or provide to Customer any Customer Data and, unless legally prohibited, may delete any and all Customer Data then stored in BWI’s systems or otherwise in BWI’s possession or control.
    4. Survival. This Section 18(d) and Sections 6(e), 7, 8, 9, 10(c), 12-17, 18(c), and 19-24 will survive any termination of the Agreement.
  9. Non-Exclusivity. Except as otherwise set forth in these Customer Terms, and unless otherwise agreed upon in writing by BWI in advance, nothing in this Agreement will limit BWI’s right to solicit or enter into any business transaction with any third party, including (without limitation) Customer’s Suppliers, Buyers or other customers (as applicable).
  10. Non-Solicitation; Non-Competition. Except as otherwise set forth in these Customer Terms, and unless otherwise agreed upon in writing by BWI in advance, during the Agreement Term, and for a period of one (1) year thereafter, Customer will not solicit, from any third party that is a then-current client or customer of BWI or that Customer should reasonably know is a potential customer or client of BWI or any business transaction that would reasonably be deemed to compete with the Service.
  11. Electronic Communications. By registering for a Customer Account, Customer hereby consents to receiving electronic communications from BWI. These electronic communications may include notices about applicable Fees and other charges and certain transactional and other information concerning or related to the Service. Customer acknowledges that these electronic communications are necessary to Customer’s relationship with BWI. Customer further agrees that any notices, agreements, disclosures or other communications that BWI sends Customer electronically will satisfy any communication requirements under applicable law or under the Agreement, including that such communications be in writing.
  12. Privacy Policy. By agreeing to these Customer Terms, Customer hereby represents to BWI that Customer has read and understands the BWI Privacy Policy, which explains how BWI uses the information submitted to BWI by Authorized Users.
  13. Customer-Specific Terms. The following terms and conditions apply to Customer if Customer falls under the corresponding category of Customer described therein. Nothing in this Section 23 makes BWI a government contractor for any federal, state, local, or foreign government.
    1. U.S. Government Customers. If Customer is a U.S. government or U.S. public entity (or use of the Service is for the U.S. government or a U.S. public entity), this Section 23(a) will apply.
      1. The Service is a “commercial item,” as defined at 48 C.F.R. §2.101, and constitutes “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. The Service and the Documentation are provided to Customer and Authorized Users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. § 12.212, with respect to all other U.S. government users and their contractors.
      2. The following sections in the Customer Terms are hereby waived by Customer to the extent they are inconsistent with federal law, and BWI hereby accepts such waiver: Sections 9(d) and 16(a) (with respect to Customer’s obligation to pay attorneys’ fees), Section16(b) (with respect to Customer’s obligation to indemnify BWI), Section 24(j) (with respect to agreement to stated venue and Customer’s obligation to pay attorneys’ fees), and any provision set forth in the Order Form applicable to automatic renewal of a subscription to the Service.
      3. BWI agrees that Customer’s seals, trademarks, logos, service marks, trade names, and the fact that Customer has a presence on the Site and uses the Service, will not be used by BWI in such a manner as to state or imply that any BWI products or services are endorsed, sponsored or recommended by Customer or by any other element of the U.S. government, or are considered by Customer or the U.S. government to be superior to any other products or services. Except for pages whose design and content are under the control of Customer, and except for links to or promotion of such pages, BWI agrees not to display any Customer or government seals, trademarks, logos, service marks, and trade names on the Service or elsewhere on any part of the Site unless permission to do so has been granted by Customer or by other relevant federal government authority. BWI may list Customer’s name in a publicly available customer list on a Site or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third-party name.
    2. State or Local Government Customers. This Section 23(b) applies if Customer is a state or local government, but only to the extent the Service is being used in an Authorized User’s official capacity as a state or local government official. The following sections in the Customer Terms are hereby waived by the Parties to the extent the laws of Customer applicable jurisdiction prohibit Customer from accepting the requirements in those sections: Sections 9(d) and 16(a) (with respect to Customer’s obligation to pay attorneys’ fees), Section16(b) (with respect to Customer’s obligation to indemnify BWI), Section 24(j) (with respect to agreement to stated venue and Customer’s obligation to pay attorneys’ fees), and any provision set forth in the Order Form applicable to automatic renewal of a subscription to the Service.
    3. Healthcare Customers. Unless Customer has entered into a written agreement with BWI to the contrary, Customer acknowledges that BWI is not a “Business Associate” as defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”), and that the Service is not HIPAA compliant. Customer must not use, disclose, transmit or otherwise process any “Protected Health Information” as defined in HIPAA (“PHI”) through the Service. Customer agrees that BWI cannot support and has no liability for PHI received from Customer, notwithstanding anything to the contrary herein.
  14. Miscellaneous.
    1. Publicity. Customer hereby grants BWI the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on any part of the Service and in any other public or private communications with BWI’s existing or potential customers, subject to Customer’s standard trademark usage guidelines as may be provided to BWI in writing, in advance from time-to-time.
    2. Notices. Except as otherwise set forth herein, all notices under the Agreement must be delivered personally or in writing via certified or registered mail, return receipt requested, or by e-mail, in each case to the address provided for the recipient Party in the Order Form or at such other address as either Party may provide via notice consistent with this Section 24(b); provided, however, that (i) BWI may provide notice to Customer via the Service. Any notice provided hereunder will be deemed to have been duly given (i) if personally delivered, upon delivery; (ii) if sent by mail, on the earlier of the date of receipt or rejection by the addressee; (iii) if sent via e-mail, on the day after it is sent; and (iv) if provided to Customer via the Service, on the day sent.
    3. Force Majeure. In no event will either Party be liable to the other Party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligation to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    4. California Consumer Notice. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Service is provided by Big Wheelbarrow, Inc., 1124 Leona St., Austin, Texas 78702. If Customer has a question or complaint regarding any part of the Service, please contact BWI customer service at legal@bigwheelbarrow.com or 512.790.4244. Customer may also contact BWI by writing to: Big Wheelbarrow, Inc., 1124 Leona St., Austin, Texas 78702. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
    5. Export Regulation. The Service may utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer will not, directly or indirectly, export, re-export, or release the Service or the underlying Technology to, or make the Service or the underlying Technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by applicable law, rule, or regulation. Customer will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service or the Technology available outside the United States.
    6. Entire Agreement; Conflicts. These Customer Terms, together with the Order Form, the User Terms, the Acceptable Use Policy, the Privacy Policy and any other document incorporated into these Customer Terms by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of a conflict between the terms set forth in the Order Form and any provision of these Customer Terms, the applicable terms in the Order Form will prevail, but only to the extent of such conflict. In the event of any conflict or inconsistency between the provisions in these Customer Terms and any other terms and conditions, agreements or policies incorporated by reference in these Customer Terms, the terms of these Customer Terms will first prevail.
    7. Modifications; Counterparts. No amendment to or modification of the Agreement will be effective unless it is in writing and signed by each Party. The Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which together will be deemed the same agreement.
    8. Relationship of the Parties; No Third-Party Beneficiaries. The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third-party beneficiaries to the Agreement.
    9. Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as may be otherwise expressly set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    10. Governing Law; Jurisdiction; Venue. The Agreement is governed by and will be construed in accordance with the state laws of the State of Texas and applicable U.S. federal law, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply the Agreement. Any legal suit, action, or proceeding arising out of or related to the Agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, in each case located in the County of Travis, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and agrees that venue in such courts is proper.  In any action or proceeding to enforce rights under these User Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
    11. Assignment; Binding Effect. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of BWI. BWI may freely assign the Agreement in connection with the sale of all or substantially all of the assets of BWI; any merger, consolidation or acquisition of BWI with, by or into, another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of BWI in one or more related transactions. Any purported assignment or delegation in violation of this Section 24(k) will be null and void. The Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    12. Severability. If any provision of the Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon any such determination, the Parties will negotiate in good faith to modify the Agreement so as to effect the original intent of the affected provision as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby may be consummated as originally contemplated to the greatest extent possible.

SCHEDULE 1

Definitions

Acceptable Use Policy” means BWI’s Acceptable Use Policy applicable to use of the Site and Service, available at https://www.bigwheelbarrow.com/legal.

Account Admin” has the meaning set forth in Section 2(a).

Agreement” has the meaning set forth in the preamble to these Customer Terms.

Agreement Term” has the meaning set forth in Section 18(a).

Application” has the meaning set forth in the preamble to these Customer Terms.

Authorized User” means any individual authorized by Customer to access the Service via the Customer Account.

Buyer” means any purchaser of produce or other food or beverage products.

BWI” means Big Wheelbarrow, Inc.

BWI Technology” means the Service (including the Site and the Application), the Documentation and any other Technology owned or controlled by BWI, whether prior to or during the Agreement Term, any improvements to or derivatives thereof, whether made by or on behalf of BWI or Customer, alone, jointly, or in conjunction with others, and any information, data, or other content derived from BWI’s monitoring of Customer’s access to or use of the Service, but excluding any Customer Data.

Claim” has the meaning set forth in Section 16(a).

Confidential Information” has the meaning set forth in Section 12(a).

Criteria for Success” means any set of criteria set forth or referenced in the Order Form as the respective obligations of the Parties required in order to achieve the Parties’ mutual goals thereunder .

Customer” has the meaning set forth in the preamble to these Customer Terms.

Customer Account” has the meaning set forth in the preamble to these Customer Terms.

Customer Account Credentials” has the meaning set forth in Section 2(a).

Customer Data” means any and all User-Generated Content and Third-Party Data (including, but not limited to, Supplier/Buyer Data) and any other information, data, and content, in any form or medium, that Customer has provided to BWI or granted BWI permission to collect via the Service, whether directly or indirectly through a Third-Party Service.

Customer Information” has the meaning set forth in Section 2(b).

Customer Results” has the meaning set forth in Section 8.

Customer Terms” has the meaning set forth in the preamble to these Customer Terms.

Disclosing Party” has the meaning set forth in Section 10(a).

Documentation” has the meaning set forth in Section 4(b).

Effective Date” means the date the Order Form has been fully executed by an authorized representative of each Party.

Fees” has the meaning set forth in Section 9(a).

Help Page” means the website page located at https://www.bigwheelbarrow.com/help, via which BWI provides Customer and its Authorized Users with guidance regarding use of the Service and management of the Customer Account and User Accounts.

Intellectual Property Rights” means any intellectual property rights of any kind arising under the laws of the United States or of any other jurisdiction or provided by international treaties or conventions, including (i) patents, patent applications (including patents issued thereon) and statutory invention registrations, including reissues, divisions, continuations, continuations in part, extensions and reexaminations thereof; (ii) all rights in any original works of authorship and/or any part thereof that are within the scope of any applicable copyright law, including all rights of authorship, use, publication, reproduction, distribution, performance, moral rights, and rights of ownership of copyrightable works, and all rights to register and to obtain renewals, extensions, revivals and resuscitations of any such copyright registrations; (iii) Marks (including any copyrights therein) and other identifiers, including all goodwill associated therewith, and any and all common law rights, and registrations and applications for registration thereof, and all reissues, extensions and renewals of any of the foregoing; (iv) trade secret and confidential and proprietary information, including trade secrets, confidential processes, compositions, formulas, customer information, operational data, processing quality control procedures, research and development studies, engineering information, invention reports, laboratory notebooks, technical reports, research and development archives, pricing information and know-how; (v) database and design rights, including, with respect to any of the foregoing; (vi) any rights arising in respect of domain names, or domain name registrations and reservations.

Losses” has the meaning set forth in Section 16(a).

Marks” means any trademarks, service marks, trade names, brand names, design marks, or other indicia of source of any goods or services.

Order Form” means the quote, purchase order or other ordering document executed by the Parties (whether originally provided by BWI and or Customer) in connection with which these Customer Terms are accepted and agreed to by Customer, whether agreed upon in writing, electronically, via the Service or other electronic acceptance method approved by BWI.

Privacy Policy” means BWI’s Privacy Policy, available at https://www.bigwheelbarrow.com/legal.

Receiving Party” has the meaning set forth in Section 12(a).

Service” has the meaning set forth in the preamble to these Customer Terms.

Service Suspension” has the meaning set forth in Section 6(a).

Service Term” means the “Service Term” defined in the Order Form.

Site” means BWI’s website located at https://www.bigwheelbarrow.com and any associated websites linked to such website by or on behalf of BWI.

Supplier” means any supplier of produce or other food or beverage products.

Supplier/Buyer Data” has the meaning set forth in Section 7(b).

Support” has the meaning set forth in Section 11.

Support Hours” has the meaning set forth in Section 11.

Technology” means, collectively, all software, designs, formulae, algorithms, procedures, methods, discoveries, processes, techniques, ideas, know-how, research and development, technical data, tools, materials, specifications, processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), apparatus, creations, inventions, improvements, works of authorship in any media, confidential, proprietary or non-public information, and other similar materials, and all recordings, graphs, drawings, reports, analyses and other writings, and other technology, including any tangible embodiments, in any form, of any of the foregoing.

Third-Party Data” has the meaning set forth in Section 7(b).

Third-Party Services” has the meaning set forth in Section 10(a).

Third-Party Sites” has the meaning set forth in Section 10(b).

User Account” has the meaning set forth in Section 3(b).

User Terms” means BWI’s User Terms of Use & Service, available at https://www.bigwheelbarrow.com/legal.

User-Generated Content” means any information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material submitted, posted, or otherwise transmitted to BWI by or on behalf of an Authorized User via the Service, including but not limited to the Customer Information.“Website Terms” means BWI’s Website Terms of Use & Service, available at https://www.bigwheelbarrow.com/legal.