Bigleaf Service Agreement

This Service Agreement (“Agreement”) is between the party described (“Customer”) in each Services Order referring to this Agreement (an “Order”) and Bigleaf Networks, Inc., a Delaware corporation (“Bigleaf”).  Bigleaf provides (i) Internet optimization and redundancy services, including related Internet Protocol addresses (the “Services”), and (ii) related router(s), appliances, switches, and/or other hardware (the “Equipment”), including any firmware or other software installed on such Equipment (“Licensed Firmware”), that are intended to provide high-performance internet connectivity over multiple last-mile ISP circuits. Customer must agree to the terms and conditions in this Agreement in order to use the Services and Equipment. The individual accepting the Order and this Agreement on behalf of Customer represents and warrants that he/she has the authority to bind Customer.

1. Payment

Customer will pay Bigleaf the setup & rental, Equipment purchase, if applicable, and/or monthly fee(s) (collectively, the “Fees”) described in each Order.  Those Fees will not change during the Initial Term (defined below).  The setup & rental and Equipment purchase Fees are non-recurring and are collected at the time Customer submits the Order.  The recurring Fees are collected monthly or annually in advance. All such Fees will be automatically charged via credit card or ACH and Bigleaf will provide an invoice reflecting such charges.  Check will only be accepted as a payment method if Bigleaf expressly agrees in writing and after completion of a credit check.  If paying by credit card or ACH, Customer (i) authorizes and instructs Bigleaf to charge the Customer credit card or bank account provided during the registration process for all charges arising under the Customer’s account(s) including applicable taxes and fees; (ii) is responsible for maintaining up to date credit card or ACH information, as applicable, and will immediately notify Bigleaf of any change in that account; and (iii) to the greatest extent permitted by applicable law, and without affecting any credit card issuer’s rights, hereby waives all claims relating to Fees unless Customer notifies Bigleaf of any dispute or other fee-related claim within 30 calendar days of the Fees being charged.  Following any such change, Customer authorizes and instructs Bigleaf to charge that new, replacement, or updated account.  Any sums not paid when due will bear interest at the rate of 18% per annum and, in addition, (a) if Customer fails to maintain up to date credit card or ACH information or otherwise pay any Fees or other amount owing under this Agreement when due, Bigleaf may suspend the Services; and (b) Customer will reimburse Bigleaf for all collection agency commissions and attorney fees and costs that Bigleaf incurs in the collection of any Fees or other amounts due and payable by Customer under this Agreement.

2. Taxes

The Fees described in the Order, and on Bigleaf’s website, are exclusive of taxes.  Customer will pay all sales, use, value added and similar taxes on the Services and will pay any personal property and similar taxes on the Equipment.

3. Use

Customer represents, warrants and covenants that (a) it intends to use the Services and Equipment for its internal purposes and will not resell the Services or Equipment or provide them to others for a fee; (b) it will not use the Services (other than applicable Home Office Services) for personal, family, or household purposes; and (c) it will comply with the Bigleaf Acceptable Use Policy (“AUP”) on the Bigleaf website at https://www.bigleaf.net/aup, as such may be updated by Bigleaf from time to time.

4. Services Level Agreement

Bigleaf will provide the Services in accordance with the Bigleaf Service Level Agreement (“SLA”) on the Bigleaf website at https://www.bigleaf.net/sla, as such may be updated by Bigleaf from time to time. The SLA describes Customer’s rights and obligations, including Customer’s right, under certain circumstances, to receive a service credit for outages.

5. No Other Warranty, Limited Liability

EXCEPT AS DESCRIBED IN THE SLA, THE SERVICES AND EQUIPMENT ARE PROVIDED AS IS, BIGLEAF EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS RELATED TO THE SERVICES AND THE EQUIPMENT (AS DEFINED BELOW), INCLUDING WITHOUT LIMITATION THAT THE SERVICES WILL BE ERROR-FREE, TIMELY, SECURE, OR UNINTERRUPTED.  BIGLEAF EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  UNDER NO CIRCUMSTANCES WILL BIGLEAF, ITS AFFILIATES, OR THEIR SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE FOR (A) AN AMOUNT GREATER THAN THE MONTHLY FEE CUSTOMER PAID BIGLEAF FOR THE MONTH IN WHICH THE FIRST EVENT GIVING RISE TO THE CLAIM OCCURS (I.E., NOT MORE THAN ONE MONTH’S MONTHLY FEE), OR (B) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF USE, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT, OF OR RELATED IN ANY WAY TO, THIS AGREEMENT OR CUSTOMER’S USE OR INABILITY TO USE THE SERVICES, THE EQUIPMENT, OR ANY OTHER GOODS OR SERVICES PROVIDED BY BIGLEAF, AND THESE EXCLUSIONS WILL APPLY EVEN IF BIGLEAF HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE TYPES OF DAMAGES.  THIS ARTICLE 5 APPLIES TO ALL LOSSES AND DAMAGES, WHETHER UNDER CONTRACT, NEGLIGENCE OR ANY OTHER TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CUSTOMER’S REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  THE DISCLAIMERS AND LIMITATIONS IN THIS ARTICLE 5 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON.

6. Equipment
   • • a) Customer agrees to provide Bigleaf with full access to and usage of Customer’s Internet circuits for the sole purpose of connecting the Equipment to Bigleaf’s network and providing related support. The rental amount for that Equipment that is not purchased by Customer is the setup & rental Fee. Customer authorizes Bigleaf to file with the appropriate governmental entity in the state where Customer is incorporated or organized one or more Uniform Commercial Code Financing Statements reflecting Bigleaf’s ownership of such Equipment.
     • b) Bigleaf shall deliver to Customer the Equipment set forth in an Order.  Bigleaf shall own and retain title to any Equipment that is not purchased by Customer and Customer will, at Customer’s expense, promptly return such Equipment to Bigleaf upon the expiration or earlier termination of this Agreement for any reason. If Customer fails to return such Equipment within 30 days of Bigleaf’s instruction, then Customer will immediately, upon Customer’s receipt of Bigleaf’s invoice, pay to Bigleaf the full cost of all such Equipment. For Equipment that is purchased by Customer, such Equipment shall be shipped to Customer DDP (Incoterms® 2020) and risk of loss or damage to the Equipment shall pass to Customer upon delivery of the Equipment. Notwithstanding the foregoing, Bigleaf IP, as defined below, is not included in any such Equipment sale, and Bigleaf at all times retains all rights in and to the Bigleaf IP; provided that, for purposes of clarification, Customer’s rights to the Licensed Firmware shall be limited to a non-exclusive, non-transferable license to use such Licensed Firmware on the Equipment in accordance with applicable Bigleaf documentation.
7. Term and Termination

This Agreement will be effective beginning as of the date the initial Order is agreed upon by the parties and will remain in force for the time period specified in each Order; provided that each such initial time period shall commence as of the date that is 10 days following Bigleaf’s shipment of applicable Equipment (the “Initial Term”).  After the Initial Term, each such Order will automatically renew for successive renewal periods equal to the renewal term set forth on such Order (each a “Renewal Term” and together with the Initial Term, the “Term”) unless one party notifies the other party at least 30 days before the end of the then current Term that such Order will not renew at the end of that Term.  In addition, (a) Bigleaf may terminate this Agreement and/or any Order at any time during the Term if Customer fails to pay any Fee within 30 days after its due date; provided that Bigleaf provides Customer with not less than seven days’ prior written notice of such termination; (b) either party may terminate this Agreement if the other party fails to cure any other material breach of this Agreement within 30 days of its receipt of written notice describing in reasonable detail the nature of the breach; and (c) Customer may terminate any Order for convenience by giving Bigleaf notice of termination within the first 30 days of the applicable Initial Term.  If Customer terminates this Agreement or an Order for any reason other than as described in subsections (b) or (c) of this Article 7, Customer will pay Bigleaf the Fees that would otherwise be due and owing for the remainder of the Term. 

8. Intellectual Property

Bigleaf owns all user manuals and other documentation, and Bigleaf owns or has rights to all other software, Licensed Firmware, designs, content, trademarks, patents, copyrights, trade secrets and all other intellectual property related to or incorporated in the Services and/or the Equipment (the “Bigleaf IP”).  Furthermore, Bigleaf will be the sole owner of (a) any developments, modifications, improvements or enhancements made by Customer, and (b) any developments, modifications, improvements or enhancements that Bigleaf makes for, or that are requested or suggested by, Customer.  Customer will not copy, modify, delete, disclose, or distribute any Bigleaf IP except as contemplated by this Agreement.  Customer understands that, other than the right to receive the Services as described in this Agreement, Customer does not have any right, title, or interest in or to the Bigleaf IP.  Customer assigns to Bigleaf any interest Customer has or may acquire in the Bigleaf IP, and upon Bigleaf’s request, and at Bigleaf’s expense, Customer will execute and deliver to Bigleaf any such assignments and otherwise cooperate with Bigleaf in order to perfect or further evidence those assignments.

9. Confidential Information

The Services and the Equipment contain Bigleaf’s valuable proprietary and confidential information.  Customer will not reverse engineer, decompile, gain unauthorized access to, create other works from, or disassemble the Services, the Equipment or any software included in the Services or the Equipment, or otherwise attempt to discover the source code or any other confidential information.  If Customer, its employees or its agents breach this Article 9, Bigleaf will have the right to seek injunctive relief in addition to all other legal or equitable remedies.  Bigleaf will not be required to post a bond as a condition of receiving an injunction or other relief.

10. Indemnity

Bigleaf will indemnify, defend and hold harmless Customer, its owners, officers, directors, managers, employees, and agents, against any and all third party claims, losses, penalties, causes of action, damages, liability, costs and expenses (including but not limited to reasonable attorneys’ fees and costs) caused by or resulting from Bigleaf’s infringement or misappropriation of such third-party’s intellectual property rights.

Customer will indemnify, defend, and hold harmless Bigleaf, its owners, officers, directors, managers, employees, and agents, against any and all third party claims, losses, penalties, causes of action, damages, liabilities, costs, and expenses (including but not limited to reasonable attorney fees and costs) caused by or resulting directly or indirectly from Customer’s use of the Services and/or Equipment. The terms of this Article 10 will survive the expiration or termination of this Agreement.

The terms of this Article 10 will survive the expiration or termination of this Agreement.

11. Assignment

Customer may not assign or otherwise transfer this Agreement without Bigleaf’s prior written consent, which Bigleaf may grant or withhold in its sole discretion, but any consent by Bigleaf will not release Customer from its obligations under this Agreement unless the consent signed by an authorized officer of Bigleaf expressly releases Customer from its future obligations under this Agreement.  Bigleaf may subcontract any or all of its obligations under this Agreement and may assign this Agreement in whole or in part without notice to or the consent of Customer.

12. Legal Actions

Oregon law will govern the interpretation and enforcement of this Agreement.  Customer consents to the jurisdiction of, and venue in, the federal and state courts located in Portland, Oregon, and Customer will not initiate any legal proceeding against Bigleaf in any other place.  Each party waives its right to trial by jury.

13. Notice and Communications

Except as expressly stated otherwise in this Agreement, (a) all notices and other communications to Bigleaf required or permitted under this Agreement must be sent to support@bigleaf.net; and (b) all notices and other communications to Customer required or permitted under this Agreement will be sent to the email address for Customer in the Order.  Those notices will be deemed given one business day after the email is sent. Bigleaf may also contact Customer for any other reason, including but not limited to offer new products and/or services.  That contact will not be deemed to be “unsolicited”.

14. General Terms

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. Bigleaf’s failure to enforce any right or provision of this Agreement will not be deemed a waiver of that right or provision.

This Agreement may not be amended except in a writing that has been signed by the party to be bound by that amendment.  Only an authorized officer of Bigleaf may amend this Agreement on behalf of Bigleaf.

This Agreement contains the entire and final understanding and agreement of the parties with respect to its subject matter; it supersedes and cancels all prior and contemporaneous oral or written agreements or understandings between the parties with respect to that subject matter.