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