Bigstream Privacy Policy

BIGSTREAM SOLUTIONS, INC. SOFTWARE LICENSE AGREEMENT

THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERNS THE LICENSING, INSTALLATION AND USE OF BIGSTREAM SOFTWARE PURCHASED OR OTHERWISE OBTAINED THROUGH THE AWS MARKETPLACE. BY PURCHASING THE BIGSTREAM SOFTWARE OR BY DOWNLOADING AND/OR INSTALLING BIGSTREAM SOFTWARE: (A) YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY IT ON BEHALF OF THE COMPANY OR OTHER ENTITY FOR WHICH YOU ARE ACTING (FOR EXAMPLE, AS AN EMPLOYEE) OR, IF THERE IS NO COMPANY OR OTHER ENTITY FOR WHICH YOU ARE ACTING, ON BEHALF OF YOURSELF AS AN INDIVIDUAL; AND (B) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH COMPANY OR OTHER ENTITY (IF ANY).

As used in this Agreement, “Bigstream,” refers to Bigstream Solutions, Inc., a Delaware corporation, with its principal place of business at 2570 W. El Camino Real, Suite 510, Mountain View, CA 94040; and “Customer” refers to the company or other entity on whose behalf you have entered into this Agreement or, if there is no such entity, you as an individual.

1. DEFINITIONS

Terms that are capitalized in this Agreement have the meanings set forth below or that are otherwise set forth in Schedule A.

2. LICENSE GRANTS

2.1 Licensed Software. Subject to Customer’s compliance with this Agreement, including Customer’s timely payment of any applicable License Fees, Bigstream grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable License Term to install and use the Licensed Software solely for the Permitted Purpose.

2.2 Open Source. Customer acknowledges that certain Software may contain Open Source, as may be identified in Bigstream’s applicable documentation. To the extent that the terms and conditions of any applicable Open Source license are inconsistent with or contrary to the terms and conditions of this Agreement (including the licenses granted under this Agreement and any limitations or restrictions on those licenses, disclaimers of warranties, and indemnification obligations), then the applicable Open Source license will prevail and control, but solely with respect to the applicable Open Source. Customer acknowledges that the Open Source license is solely between Customer and the applicable third party licensor of the Open Source and Customer will comply with the terms of any such Open Source license.

3. LICENSE RESTRICTIONS

Customer will not and Customer has no right to: (a) copy any Bigstream Materials (except as required to run the Software); (b) modify, adapt, or create derivative works of any Bigstream Materials; (c) rent, lease, loan, resell, transfer, sublicense, distribute, disclose or otherwise provide any Bigstream Materials to any third party except as expressly permitted under Section 4; (d) decompile, disassemble or reverse-engineer any Bigstream Materials, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Bigstream Materials, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary; (e) access or use any Disabled Materials; (f) provide to any third party the results of any benchmark tests or other evaluation of any Bigstream Materials without Bigstream’s prior written consent; (g) attempt to disable or circumvent any technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any Bigstream Materials (including in order to gain access to any Disabled Materials); (h) remove or obscure any copyright, trademark, patent, or other proprietary notices, legends or symbols from any Bigstream Materials; (i) otherwise access or use any Bigstream Materials except as expressly authorized in this Agreement; or (j) encourage or assist any third party to do any of the foregoing. Customer acknowledges that Software may be configured to display warnings, reduce available functionality, and/or cease functioning if unauthorized or improper use is detected, including if the License Term expires.

4. CONSULTANTS AND AFFILIATES

Customer may permit its authorized consultants, contractors, and agents (“Service Providers”) to access and use the Software solely on Customer’s behalf in connection with providing services to Customer, subject to the terms and conditions of this Agreement. Customer may also permit its Affiliate(s) to access and use the Software, subject to the terms and conditions of this Agreement. Any such access or use by a Service Provider or Affiliate will be subject to the same limitations and restrictions that apply to Customer under this Agreement, and Customer will be responsible for any failure by any Service Provider or Affiliate to comply with such limitations and restrictions (and any act or omission by a Service Provider or Affiliate that would constitute a breach of this Agreement if by Customer will be deemed a breach of this Agreement by Customer).

5. INTELLECTUAL PROPERTY; DATA RIGHTS

5.1 Intellectual Property. As between Bigstream and Customer, Bigstream owns and will retain ownership of all worldwide right, title and interest in and to the Bigstream Materials, including all related Intellectual Property Rights. Except for the licenses expressly granted to Customer in Section 2, Customer will not acquire or claim any right, title or interest in or to any Bigstream Materials or related Intellectual Property Rights, whether by implication, operation of law or otherwise. Notwithstanding anything to the contrary, the Software is licensed, not sold, to Customer. If Customer provides or makes available suggestions, comments, ideas, improvements or other feedback or materials (“Feedback”) to Bigstream in connection with the Bigstream Materials or other subject matter of this Agreement, Bigstream will own, and Customer hereby assigns to Bigstream, all rights, title and interest (including Intellectual Property Rights) in such Feedback. Customer agrees that Bigstream and its Affiliates will be free to disclose, reproduce, modify, license, transfer, distribute, use and otherwise use any such Feedback in any manner.

5.2 Data Rights. “Collected Data” means (i) information relating to the data sources, data formats and other data operations, data parameters and data syntax used or implemented by the Customer or the software and technology used by Customer, (ii) information relating to the performance of the Licensed Software and the use by the Customer of the Licensed Software, including but not limited to logs of bugs or other performance anomalies, and information relating to response times and availability of the Licensed Software or portions thereof, and (iii) any other information or data submitted by Customer to Bigstream. Except for business contact information of Customer that is shared by Customer hereunder, Customer will de-identify any information that it shares with Bigstream that is reasonably identifiable with any individual or that otherwise is considered “personal data” or “personal information” under the laws of any country. Bigstream will have the right to collect Collected Data for the purposes set forth below. Customer hereby grants to Bigstream, a royalty-free, non-exclusive, worldwide license to access and use Collected Data in connection with the services and other activities contemplated under this Agreement. Customer further hereby grants to Bigstream a royaltyfree, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, develop, transmit, distribute, modify, reproduce, publicly display, and create derivative works of any of Collected Data in a form that is not reasonably identifiable with Customer or an individual end user for the purposes of: (i) developing, maintaining, supporting, and improving Bigstream’s products and services; and (ii) marketing, promoting, and advertising Bigstream’s products and services. Customer agrees that Bigstream will exclusively own all right, title, and interest in and to all output data and aggregated data generated by Bigstream based on Collected Data that is not reasonably identifiable with Customer or an individual end user. The rights and licenses granted to Bigstream under this Agreement shall extend to service providers and other contractors exercising such rights and licenses on Customer’s behalf. Subject to the rights granted to Bigstream above, (i) Bigstream will not publish or redistribute Collected Data to any third party without your consent, and (ii) Bigstream will authorize only Bigstream employees, consultants, and service providers to access Collected Data, unless you and Bigstream agree otherwise in writing.

6. LICENSE FEES

Customer agrees to pay AWS, as Bigstream’s authorized payment agent, all license fees set forth in the Order (the “License Fees”), and Customer will have no direct License Fee payment obligations to Bigstream for the Software covered by the Accepted Order. License Fees cover only the costs of the applicable license to Bigstream Software and any related Support Services, and does not cover the cost of any third party services, including AWS services such as Amazon Elastic Compute Cloud (EC2) and Amazon Elastic MapReduce (EMR) services. Customer’s use of the Software is subject to any additional terms in the agreement provided by AWS. Customer authorizes Bigstream to share any information provided by Customer to Bigstream with AWS in order to facilitate Customer’s purchase of, any ongoing subscription to, and any support for the Software. Customer’s agreement with AWS is between Customer and AWS, and is not binding on Bigstream. Bigstream may terminate this Agreement (including Customer’s right to use the Software) if Bigstream does not receive payment for Customer’s use of the Software from AWS or if Customer breaches any term of this Agreement. If Customer’s warranty and support terms stated in its agreement with AWS are different from those set forth in this Agreement, then such different terms are solely between Customer and AWS and Bigstream will have no obligations to Customer under this Agreement with respect to such different terms. Except as set forth in the preceding sentence, if there is any conflict or inconsistency between this Agreement and Customer’s agreement with AWS, then this Agreement will control (and will resolve such inconsistency) as between Bigstream and Customer.

7. MAINTENANCE AND SUPPORT

Bigstream will provide to Customer the same level of support and maintenance services for the Licensed Software (the “Support Services”) that is made generally commercially available by Bigstream to other Bigstream customers for the same Software. Bigstream is not otherwise responsible for providing support and maintenance services to Customer.

8. SOFTWARE VERIFICATION AND AUDIT

At Bigstream’s request, Customer will furnish Bigstream with a certification signed by Customer’s authorized representative verifying that the Software is being used in accordance with this Agreement and the applicable Accepted Order. Upon at least ten (10) days’ prior written notice, Bigstream may audit Customer’s (and its Service Providers’ and Affiliates’) use of the Software to ensure that Customer (and such Service Providers and Affiliates) are in compliance with this Agreement and the applicable Accepted Order. Any such audit will be conducted during regular business hours at Customer’s (or its Service Providers’ or Affiliates’) facilities, will not unreasonably interfere with Customer’s (or its Service Providers’ or Affiliates’) business and will comply with Customer’s (or its Service Providers’ or Affiliates’) reasonable security procedures. Customer will (and will ensure that its Service Providers and Affiliates) provide Bigstream with reasonable access to all relevant records and facilities reasonably necessary to conduct the audit. If an audit reveals that Customer (or any Service Provider or Affiliate) has exceeded the scope of Customer’s license grant during the period audited, then Bigstream will invoice Customer, and Customer will promptly pay Bigstream any underpaid fees based on Bigstream’s price list in effect at the time the audit is completed. Customer will ensure that its Service Providers and Affiliates provide Bigstream with the access described in this Section 8. This Section 8 will survive expiration or termination of this Agreement for a period of three (3) years.

9. WARRANTY DISCLAIMER

THE BIGSTREAM MATERIALS, OPEN SOURCE, THIRD PARTY CONTENT, AND SUPPORT SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMITTED BY LAW, BIGSTREAM DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, BIGSTREAM DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED. FOR THE AVOIDANCE OF DOUBT, BIGSTREAM DOES NOT GUARANTEE THAT USE OF THE SOFTWARE WILL RESULT IN THE ACCELERATION OF, OR ANY OTHER PERFORMANCE IMPROVEMENTS IN, ANY CUSTOMER APPLICATIONS, SOFTWARE OR TECHNOLOGY.

10. LIMITATION OF LIABILITY

TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, (A) BIGSTREAM WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) BIGSTREAM’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE GREATER OF (I) THE AMOUNTS PAID BY CUSTOMER TO BIGSTREAM FOR THE LICENSED SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY AND (II) TEN DOLLARS (USD $10), IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER BIGSTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, CUSTOMER, AND NOT BIGSTREAM, IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY AND SECURITY OF CUSTOMER’S DATA AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER’S (AND ITS AFFILIATES’ AND SERVICE PROVIDERS’) DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE). CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SOFTWARE IS TO UNSUBSCRIBE TO, AND TO STOP USING, THE SOFTWARE.

11. CUSTOMER REPRESENTATIONS

If Customer provides Bigstream with access or other rights to any software, technology, networks, data or other products or services owned by Customer or licensed by Customer from a third party in connection with Customer’s use of the Software or Bigstream’s performance hereunder, Customer represents and warrants that it has full the full legal right and authority to grant such rights to Bigstream and that such action will not violate, or cause a breach of, any agreements between Customer and any third parties, or violate any applicable laws or regulations. In addition, Customer represents and warrants that the performance of its obligations under this Agreement and use of the Software by Customer will not violate, or cause a breach of, any agreements between Customer and any third parties, or violate any applicable laws or regulations.

12. INDEMNIFICATION

12.1 Bigstream Indemnification. Customer authorizes Bigstream to, and Bigstream will, defend and/or settle any claim, demand, suit or proceeding (“Claim”) brought against Customer by a third party alleging that Licensed Software infringes or misappropriates such third party’s Intellectual Property Rights, and Bigstream will pay all damages finally awarded or settlement amount entered into by a court of competent jurisdiction to the extent based on such Claim, subject to the other terms and conditions of this Agreement. Notwithstanding the foregoing, Bigstream has no obligation to indemnify Customer with respect to: (a) use of the Licensed Software in a manner that is not permitted under the Agreement or that is inconsistent with Bigstream’s applicable user documentation; (b) modifications to the Bigstream Materials made by anyone other than Bigstream; (c) the combination of Licensed Software with hardware, software, services or materials provided by third parties where the infringement or misappropriation would not have occurred but for such combination; (d) Customer’s continued use of the Licensed Software or other allegedly infringing activity after receiving notice of the alleged infringement; or (e) any version of the Licensed Software that is no longer supported by Bigstream ((a) through (e), collectively, “Excluded Matters”). If an applicable Claim is made or appears likely to be made, Bigstream may, at its option and expense, modify the affected Licensed Software so that it is noninfringing, or replace it with functionally comparable software. If Bigstream determines that neither is reasonably feasible, Bigstream may terminate Customer’s applicable license and refund Customer a pro rata portion of the License Fees previously paid by Customer, which will be calculated using the remainder of the license term (beginning with the date of Bigstream’s receipt of notice of the applicable Claim). The obligations set forth in this Section 12 constitute Customer’s sole and exclusive remedy, and Bigstream’s entire liability, with respect to any Claims that the Licensed Software infringes any third party’s Intellectual Property Rights.

12.2 Customer Indemnification. On Bigstream’s written request, Customer will defend Bigstream against any Claim brought against Bigstream by a third party arising out of or relating to any Excluded Matter or any violation or alleged violation of Section 2 (License Grants), Section 3 (License Restrictions), Section 6 (License Fees), Section Error! Reference source not found. (Customer Representations), Section 12 (Indemnification) or Section 13 (Confidential Information) by Customer, and Customer will pay all damages finally awarded against Bigstream by a court of competent jurisdiction to the extent based upon such Claim.

12.3 Notice and Cooperation. Each party’s indemnity obligations set forth in this Section 12 are conditioned upon the party seeking indemnification (a) providing prompt written notice to the other party of the applicable Claim; (b) giving the indemnifying party sole control of the defense and/or settlement of the Claim, except that: (i) the indemnified party may participate in the defense with counsel of its choice at its own expense, and (ii) the indemnifying party will not agree to any settlement that imposes a material obligation on the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld or delayed), and (c) providing reasonable cooperation and assistance in the defense and negotiations.

13. CONFIDENTIAL INFORMATION

13.1 Confidential Information. “Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information of Bigstream will include the Bigstream Materials.

13.2 Use and Disclosure Restrictions. The party receiving Confidential Information (“Recipient”) agrees: (a) to maintain the Confidential Information of the party disclosing such information (the “Discloser”) in confidence; (b) not to disclose such Confidential Information to any third parties; and (c) not to use any such Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, and employees (collectively, “Representatives”), who have a bona fide need to know such Confidential Information, provided that each such Representative is bound by a legal obligation as protective of the other party’s Confidential Information as those set forth herein. Recipient’s obligations under this Section 13 will continue in effect for a period of three (3) years from the date of last disclosure of Confidential Information by Discloser, except that Customer’s obligations under this Section 13 will continue in effect in perpetuity with respect to Bigstream Materials.

13.3 Exclusions. The obligations of Recipient under Section 13.2 will not apply to any Confidential Information that: (a) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, Affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (b) was known by or lawfully in the possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (c) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by Recipient without access, use or reference to any Confidential Information of Discloser.

13.4 Required Disclosures. The provisions of Section 13.2 will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law or regulation or compelled by a court or administrative agency of competent jurisdiction, provided that, to the extent permissible under law, Recipient uses reasonable efforts to give Discloser advance notice of such required disclosure in order to enable Discloser to prevent or limit disclosure.

13.5 Return or Destruction of Confidential Information. Upon termination of the Agreement or support and maintenance, Recipient will promptly return to Discloser or, at Discloser’s option, destroy all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.

13.6 Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 13, without the necessity of posting any bond or other security. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.

14. TERM

This Agreement will commence upon Bigstream’s first delivery of a Software URL for the Software in the Accepted Order (or, Bigstream’s other initial delivery of the Software to Customer) and will remain in effect until the expiration of all applicable License Terms, unless earlier terminated pursuant to Section 15 (the “Term”). The License Term will continue for the term of Customer’s corresponding subscription as specified in the Accepted Order, unless and until terminated pursuant to Section 15. Licenses granted to Customer for such Licensed Software will terminate automatically upon expiration of such License Term. Upon expiration or termination of any License Term, the applicable Software will stop working automatically.

15. TERMINATION

Customer may immediately terminate this Agreement at any time by visiting Customer’s AWS account management page (https://aws.amazon.com/marketplace/account-management?ref_=header_user_account_management) and cancelling Customer’s subscription to the Licensed Software. In addition, Bigstream may immediately terminate this Agreement (in whole or in part, including with respect to any License Term) by written notice to Customer (a) if Customer materially breaches Section 3 (License Restrictions), and (b) as set forth in Section 6 (License Fees). Upon any expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will automatically terminate, and Customer agrees to cease immediately using the Bigstream Materials and to return or destroy all copies of the Bigstream Materials and other Bigstream Confidential Information in Customer’s possession or control, and certify in writing the completion of such return or destruction in accordance with Section 13.4. Upon termination of this Agreement, Bigstream and AWS will have no obligation to refund any License Fees or other amounts received from Customer during the Term, unless otherwise provided in this Agreement. Section 1 (Definitions), Section 5 (Intellectual Property), Section 8 (Software Verification and Audit), Section 9 (Warranty Disclaimer), Section 10 (Limitation of Liability), Section 11 (Customer Representations), Section 12 (Indemnification), Section 13 (Confidential 5 Information), Section 15 (Termination) and Sections 16 (Interpretation) through 22 (General) will survive any expiration or termination of this Agreement.

16. INTERPRETATION

For purposes of interpreting this Agreement, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (d) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; (e) the captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement; and (f) the references herein to the parties will refer to their permitted successors and assigns.

17. EXPORT

Customer will comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses any of the Bigstream Materials. Customer certifies that Customer is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further certifies that Customer will not export, reexport, ship, transfer or otherwise use the Bigstream Materials in any country subject to an embargo or other sanction by the United States, including Iran, Syria, Cuba, Sudan and North Korea and that Customer will not use the Bigstream Materials for any purpose prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses.

18. GOVERNMENT END USER RIGHTS

Customer acknowledges that all Bigstream Materials were developed entirely at private expense and that no part of the Bigstream Materials was first produced in the performance of a government contract. Customer agrees that all Bigstream Materials and any derivatives thereof are “Commercial Items” as defined in 48 C.F.R. 2.101, and if Customer is the Government, then such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. 12.211, 48 C.F.R. 12.212, 48 C.F.R. 227.7102-2, and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.211, 48 C.F.R. 12.212, 48 C.F.R. 227.7102-1 through 48 C.F.R. 227.7102-3, and 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Bigstream Materials are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, Customer will have no rights in the Bigstream Materials except as expressly agreed to in writing by Customer and Bigstream.

19. PUBLICITY

Customer agrees that Bigstream may publish a brief description describing Customer’s deployment of the Software and identify Customer as a Bigstream customer on any of Bigstream’s websites, client lists, press releases, and/or other marketing materials.

20. THIRD PARTY CONTENT DISCLAIMER

Certain materials, including hardware, software or other systems, made available for purchase or download by AWS are developed and/or provided by third parties (“Third-Party Content”). Bigstream neither controls nor endorses, nor is Bigstream responsible for, any Third Party Content, including the availability, accuracy, integrity, quality, legality, usefulness or safety of Third Party Content. Certain Third Party Content may, among other things, be inaccurate, nonfunctional, infringing or dangerous. Nothing in this Agreement will be deemed to be a representation or warranty by Bigstream with respect to any Third Party Content, even if a particular item of Third Party Content is identified as “certified” for use with Software. Bigstream has no obligation to monitor Third Party Content, and Bigstream may block or disable access to any Third Party Content at any time. In addition, the compatibility of any Third Party Content with Software or Customer’s use of Software with any Third Party Content does not imply Bigstream’s endorsement of, or affiliation with, any provider of such Third Party Content, nor does such compatibility or use create any legal relationship between Bigstream and any such provider. Customer’s use of Third Party Content, including in connection with Software, is at Customer’s own risk and may be subject to any additional terms, conditions and policies applicable to such Third Party Content (such as license terms, terms of service or privacy policies of the providers of such Third Party Content).

21. CHOICE OF LAW AND DISPUTES

This Agreement will be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the conflicts of law principles of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco, California, and the parties hereby consent to personal jurisdiction and venue therein (except that Bigstream may seek injunctive relief to prevent improper or unauthorized use or disclosure of any Bigstream Materials in any court of competent jurisdiction). If a dispute arises between Customer and Bigstream, and either Customer or Bigstream files suit in any court of competent jurisdiction to enforce rights under this Agreement, then the prevailing party will be entitled to recover from the other party all costs of such action or suit, including investigative costs, court costs and reasonable attorneys’ fees (including expenses incurred to collect those expenses).

22. MISCELLANEOUS

All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the applicable Accepted Order or to such other address as may be specified by either party to the other party in accordance with this Section. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or 6 otherwise. Bigstream may assign this Agreement in whole or in part to an Affiliate or in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of Bigstream’s assets to which this Agreement relates. Bigstream may also assign its rights to receive payment due as a result of performance of this Agreement to a bank, trust company, or other f inancing institution, including any federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727) and may assign this Agreement in accordance with the provisions at 48 C.F.R 42.12, as applicable. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. Except as otherwise expressly set forth in this Agreement, the rights and remedies of either party as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies now or hereafter provided by law or at equity. The waiver by either party of a breach of or a default under this Agreement will not be effective unless in writing, The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. From time to time, Bigstream may collect and process technical and related information about Customer’s use of the Software which may include Internet protocol addresses, hardware identification, operating system, application software and other non-personally identifiable usage information to facilitate the provision of updates, support, invoicing or to improve Bigstream’s products or services. This Agreement along with any additional terms incorporated herein by reference, including any Schedules and Accepted Orders, constitute the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. Any terms and conditions contained or referenced by either party in a quote, order, acceptance, invoice or any similar document purporting to modify the terms and conditions contained in this Agreement will be disregarded and have no effect unless otherwise expressly agreed to by the parties in accordance with the preceding sentence. If there is any conflict or inconsistency between this Agreement and Customer’s agreement with AWS, then this Agreement will control (and will resolve such inconsistency) as between Bigstream and Customer. 2017 Bigstream Solutions, Inc. All rights reserved.

SCHEDULE A – DEFINITIONS

  • “Accepted Order” means an Order that Bigstream has accepted and for which Bigstream has delivered a Software URL to Customer.
  • “Affiliate,” with respect to a party, means a corporation, partnership or other entity controlling, controlled by or under common control with such party, but only so long as such control continues to exist. For purposes of this definition, “control” means ownership, directly or indirectly, of at least fifty percent (50%) of the voting rights in such entity (or, in the case of a noncorporate entity, equivalent rights).
  • “AWS” means Amazon Web Services, Inc. or its Affiliates.
  • “AWS Marketplace” means the online store available at https://aws.amazon.com/marketplace/ through which Customer may purchase or otherwise obtain Software.
  • “Bigstream Materials” mean the Software, Software URL, and end user documentation relating to the foregoing.
  • “Disabled Materials” means certain materials (including programs, modules or components, functionality, features, documentation, content or other materials) that may be contained in or provided with the Software as part of the delivery mechanism used by Bigstream, but that are disabled or hidden in Customer’s setting, because Customer either: (a) does not have the relevant license or Software URL, or (b) has not paid the applicable License Fees, for those materials.
  • “Enhancements” means any updates, upgrades, releases, fixes, enhancements or modifications to the Software made generally commercially available by Bigstream to its support customers.
  • “Government” means an agency, department, or instrumentality of the United States government.
  • “Intellectual Property Rights” means all patent, copyright, trademark, and trade secret rights and other intellectual property and proprietary rights, whether registered or unregistered.
  • “License Term” means the term of Customer’s license to the Licensed Software, as specified on the applicable Order.
  • “Licensed Software” means Software identified in an Accepted Order.
  • “Open Source” means software or similar subject matter that is distributed under an open source license such as (by way of example only) the GNU General Public License, GNU Lesser General Public License, Apache License, Mozilla Public License, BSD License, MIT License, Common Public License, any derivative of any of the foregoing licenses, or any other license approved as an open source license by the Open Source Initiative.
  • “Order” means the order placed by Customer through the AWS Marketplace in order to purchase or otherwise obtain Bigstream Materials or services, typically incorporating pricing, quantity, license term and other applicable terms.
  • “Permitted Purpose” means Customer’s use for its own internal business operations with Customer’s data. Such use does not include use on a service bureau basis or otherwise to provide services to, or process data for, any third party unless the Customer’s use of the Software is part of an integrated Customer service that (i) serves a purpose that is substantially different from the functionality provided by the Software, and (ii) adds substantial additional features and functionality to the Software.
  • “Software” means the software products listed in an Accepted Order and any Enhancements made available to Customer by Bigstream.
  • “Software URL” means the URL delivered to Customer by Bigstream following acceptance of Customer’s Order through which Customer may download and install the Software.