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Bigleaf Service Agreement

This Service Agreement (the “Agreement”) is comprised of the general terms and conditions set forth below and the terms and conditions set forth in an applicable written or electronic order for services (collectively referred to herein as an “Order” or “Orders”).  Each Order represents a separate contract and may be agreed upon by Bigleaf Networks, Inc., a Delaware corporation (“Bigleaf”), and the purchasing party described in such Order (“Customer”) (each referred to individually as a “Party” and collectively as the “Parties”) or one or both of their Affiliates, as defined below, in which case, such Affiliate(s) shall be deemed to be “Bigleaf” or “Customer”, as applicable, for purposes of the Agreement.  “Affiliate” means any entity that controls, is controlled by, or is under common control with such Party.  If there is a conflict between the general terms and conditions of the Agreement and an Order, this Agreement shall take precedence unless the Order expressly states that it is intended to supersede the Agreement.  All capitalized terms have the meanings given to them in the Agreement and/or Order.

  1. SERVICES
    1. Services. Bigleaf will provide the Internet optimization and redundancy services that provide high-performance internet connectivity over multiple last-mile ISP circuits, including related Internet Protocol addresses and any CPE, as defined in Section 1.2, as further described and identified in an Order or as otherwise selected by Customer through Bigleaf’s web dashboard or online quoting tool (collectively, the “Services”).  Bigleaf will have the right to use subcontractors to perform any part of the Services.  Bigleaf may make changes (including updates and improvements) to the Services so long as such changes do not materially diminish the features or functionality of the Services.  Customer acknowledges that its purchase of the Services is for the current version of them and is not contingent upon the delivery of any future functionality or features. Customer hereby grants Bigleaf full access to Customer’s internet circuits (including but not limited to providing Bigleaf any required user name and login information), so that the CPE can connect to Bigleaf’s network.
    2. Customer Premises Equipment and Bigleaf Firmware. As part of the Services, Bigleaf may provide router(s), switches, or other hardware (the “CPE”), including any firmware or other software installed on such CPE (“Bigleaf Firmware”), for use during the Term, as defined in Section 4.1.    CPE shall be shipped to Customer and risk of loss or damage to the CPE shall pass to Customer upon delivery to the address identified in the Order.  Bigleaf at all times retains all title, ownership, rights and interest in and to the CPE and the Bigleaf Firmware; provided that, Bigleaf grants Customer during the Term a non-exclusive, non-transferable term-limited license to use such Licensed Firmware on the CPE solely at the site location(s) identified in the Order in accordance with applicable Bigleaf documentation.  Customer shall return all CPE to Bigleaf in the same condition (reasonable wear and tear excepted) upon the earlier of the conclusion of the applicable Term or any earlier termination of this Agreement.
    3. Service Level Agreement. Bigleaf will provide the Services in accordance with the service level agreements found at https://www.bigleaf.net/sla/ or such other address that Bigleaf identifies (“Service Level Agreement(s)” or “SLA”).  The SLA describes certain Customer rights and obligations, including Customer’s right, under certain circumstances, to receive a credit for outages of the Services.
    4. Use of the Services; Customer Data. Customer represents, warrants and covenants that (a) it intends to use the Services and CPE for its internal purposes and will not distribute, transfer, grant sublicenses, or otherwise make available the Service (or any portion thereof) to third parties, including, but not limited to, making such Services available as an application service provider, service bureau, or rental source; (b) it will not use the Services (other than applicable Home Office Services) for personal, family, or household purposes.  Customer (i) will not use the Services in any manner not authorized under applicable Bigleaf documentation or in violation of any applicable statutes, common law, regulations, ordinances, codes, rules, guidelines, orders, permits, tariffs and approvals, of any governmental authority (“Law”), (ii) is solely responsible for any and all transactional data (“Customer Data”) that may be collected or utilized by Customer through its use of the Services and (iii) acknowledges that Bigleaf has no control over and will not monitor the content of the Customer Data.  Customer represents and warrants that, as the data controller, it is entitled to transfer all Customer Data, including relevant personal data, that it makes available to Bigleaf so that Bigleaf, its Affiliates and third-party contractors may interact with the Customer Data only for purposes of providing the Services under the Agreement.  Bigleaf shall not retain, use or disclose Customer Data for any purpose (including for a commercial purpose) other than to perform the Services under the Agreement.  To the extent that Customer is a data processor for its own customers, it represents and warrants that it has secured all third-party permissions necessary to allow Bigleaf to provide the Services under the Agreement.  Subject to the limited rights granted to Bigleaf pursuant to this Agreement, Bigleaf acquires no right, title or interest from Customer under this Agreement in or to Customer Data, including any related Intellectual Property, as defined in Section 3.2; provided that Bigleaf shall fully own and retain all rights to usage data derived from Customer Data (“Usage Data”) that is anonymous and aggregated with usage data from Bigleaf’s other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of Bigleaf’s Services.  For purposes of clarification, such Usage Data shall not include any data that could reasonably identify Customer or any particular individual.  In Customer’s use of the Services, Customer will comply and will require its agents, contractors, customers, and employees to comply with Bigleaf’s acceptable use policy, as updated by Bigleaf from time to time,  found at https://www.bigleaf.net/aup or such other address that Bigleaf identifies, which governs transmission through, and use of the Services (the “AUP”). 
    5. Privacy Policy. BigLeaf will comply with its privacy policy, available at bigleaf.net/privacy/ (“Privacy Policy”), in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Services, Customer acknowledges that it has reviewed and accepted the Privacy Policy, and Customer consents to all actions taken by Bigleaf with respect to Customer Data in compliance with the then-current version of the Privacy Policy.
  2. PAYMENT As consideration for the Services, Customer will pay Bigleaf the fees specified in each Order which are exclusive of any applicable taxes and are in US dollars (the “Fees”).  Unless Customer provides a valid exemption certificate, Customer is also responsible for any tax, tariff, customs duty, surcharge, or other fee imposed on or related to the Services, including the CPE, by applicable Law, treaty, or regulation from time to time, which Bigleaf is required to pay to any taxing or other regulatory or municipal authority.  Bigleaf shall collect the Fees on a monthly or annual basis in advance. All such Fees will be automatically charged only via credit card or ACH, at Bigleaf’s discretion, and Bigleaf will provide an invoice reflecting such charges.  In connection with such payments 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 twenty (20) calendar days of the Fees being charged.  Following any such change, Customer authorizes and instructs Bigleaf to charge such new, replacement, or updated account.  All Fees will increase by five percent (5%) upon each Renewal, as defined in Section 4.1, of each Order.  Any sums not paid when due will bear interest at the rate of the lesser of eighteen percent (18%) per annum or the maximum applicable statutory rate.  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.
  3. CONFIDENTIALITY & INTELLECTUAL PROPERTY
    1. “Confidential Information” means, with respect to a Party (the “Disclosing Party”), information that pertains to such Party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other information designated or marked as confidential or proprietary information or that the Party receiving such information (the “Receiving Party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party even if not designated or marked as such. The Receiving Party shall preserve the confidentiality of the Disclosing Party’s Confidential Information and treat such Confidential Information with at least the same degree of care that Receiving Party uses to protect its own Confidential Information, but not less than a reasonable standard of care.  The Receiving Party will use the Confidential Information of the Disclosing Party only to exercise rights and perform obligations under this Agreement.  Confidential Information of the Disclosing Party will be disclosed only to those employees and contractors of the Receiving Party with a need to know such information.  The Receiving Party shall not be liable to the Disclosing Party for the release of Confidential Information if such information: (a) was known to the Receiving Party on or before the effective date of this Agreement without restriction as to use or disclosure; (b) is released into the public domain through no fault of the Receiving Party; (c) was independently developed solely by the employees of the Receiving Party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by Law, provided that, to the extent legally permissible, the Receiving Party will notify the Disclosing Party promptly of such required disclosure and reasonably assists the Disclosing Party in efforts to limit such required disclosure.
    2. Intellectual Property Rights; Restrictions. Unless required to do so in order to provide or receive the Services in accordance with this Agreement, neither party shall use any copyrights, patents, trade secrets, software, trademarks, trade names, service marks, license rights or other intellectual property rights (collectively, “Intellectual Property”) owned, licensed or provided by the other Party.  Upon expiration or termination of an Order, all rights under the Order shall automatically expire, and all Bigleaf Intellectual Property, including all copies thereof, shall be returned to Bigleaf.  Except as otherwise specified in an this Agreement, each Party hereby disclaims any right, title and interest in the Intellectual Property provided, owned, used or licensed by the other Party.  With respect to Bigleaf Intellectual Property, Customer will not and will not permit others to (i) copy, modify, create derivative works from, attempt to derive source code, reverse engineer, decompile, attempt to gain unauthorized access to, delete, disclose, or distribute such Intellectual Property; or (ii) in any way access, use, or copy any portion of the Services code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Services, except as expressly permitted by this Agreement.  Customer assigns to Bigleaf any interest Customer has or may acquire in the Bigleaf Intellectual Property, 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.
    3. Publicity. During the Term, unless otherwise set forth in the applicable Order, Customer hereby agrees that Bigleaf shall have the right, but not the obligation, to include Customer’s name and logo as a customer who uses the Services on the Bigleaf website and in other materials promoting the Services.
  4. TERM, TERMINATION & SUSPENSION
    1. Term. This Agreement shall continue in effect as long as there is a then-current Order, unless earlier terminated in accordance with this Section.  The term of an Order shall be set forth on the Order (the “Initial Term”) commencing on the Order Effective Date stated in the Order, after which it will renew automatically for the duration set forth in the Order (each a “Renewal” and, along with the Initial Term, the “Term”) unless a Party notifies the other in writing of its intent to not renew at least thirty (30) days before expiration of the then-current Term.
    2. Termination. A Party may terminate the affected Order or, if the issue relates to the Agreement as a whole, all Orders under the Agreement immediately by providing written notice if: (a) The other Party materially breaches an Order and fails to remedy the material breach within thirty (30) days after receiving written notice thereof; provided that Bigleaf may terminate an affected Order if Customer fails to pay any Fee when due under the Order and following not less than seven (7) days’ prior notice from Bigleaf to Customer of its intent to terminate; (b) The other Party commits a material breach of an Order that is of a type which cannot be remedied; and(c) The other Party becomes insolvent, admits in writing to its inability to pay its debts, ceases to function as a going concern or to conduct its operations in the normal course of business.

      If Customer terminates this Agreement or an Order for any reason other than as permitted in this Section 4.2, Customer will pay Bigleaf the Fees that would otherwise be due and owing for the remainder of the Term or current Renewal.  Upon termination or expiration of an Order, all licenses granted by Bigleaf will automatically expire and Customer will return all CPE to Bigleaf at Bigleaf’s direction and expense.

    3. Suspension. Bigleaf may suspend the Services (i) immediately and without liability or advance notice, if a Customer breach is caused by Customer’s non-compliance with the AUP or with applicable Law, as necessary to avoid a continuing violation of applicable Law, to prevent a service interruption by an internet service provider or other network provider, or to protect the integrity of Bigleaf’s network or the security of the Services; or (ii) upon ten (10) days’ advance notice in the event that Customer has failed to pay the Fees when due.
  5. SUPPORT Bigleaf will provide support to Customer as described on Bigleaf’s support website page, as updated by Bigleaf from time to time:  https://www.bigleaf.net/contact-support/
  6. INDEMNIFICATION
    1. Customer Indemnification. Customer will defend, indemnify and hold harmless Bigleaf and its Affiliates, employees and agents from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and court costs incurred in connection with third-party claims arising out of or related to: (i) Customer Data and other information provided by or through Customer’s use of the Services; (ii) Customer’s use of the Services in violation of this Agreement (including the AUP) or applicable Law; (iii) Customer’s infringement of a third party’s Intellectual Property; and (iv) Customer’s modification of the Services or CPE.
    2. Indemnification Conditions. Bigleaf will provide Customer prompt written notice after learning of a claim that is subject to Section 6.1; provided that failure to give (or delay in giving) such notice will only relieve Customer of its obligations to the extent that Customer can prove that it was prejudiced by the failure or delay.  Customer will have sole control of the defense and settlement of the claim, provided that, Bigleaf may participate in the defense or settlement, at its own expense, but neither Party will have authority to settle a claim or admit liability without the other Party’s consent.  Bigleaf will provide, at Customer’s expense, all assistance reasonably required by the Customer.
  7. WARRANTIES; DISCLAIMER. OTHER THAN WARRANTIES WHICH CANNOT BE EXCLUDED BY APPLICABE LAW, AND ANY WARRANTIES SPECIFICALLY PROVIDED IN AN ORDER, BIGLEAF PROVIDES THE SERVICES “AS IS”, AND DISCLAIMS ALL WARRANTIES AND CONDITIONS EXPRESSED, IMPLIED AND STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  ADDITIONALLY, BIGLEAF MAKES NO REPRESENTATION THAT THE SERVICES WILL BE ERROR-FREE, TIMELY, SECURE, OR UNINTERRUPTED.
  8. LIMITATION OF LIABILITY
    1. Scope. EXCEPT WITH RESPECT TO DAMAGES THAT CANNOT BE LIMITED BY APPLICABLE LAW AND CUSTOMER’S OBLIGATIONS UNDER SECTIONS 2, 3, 4.2, AND 6, EACH PARTY’S TOTAL AND AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO AN ORDER (WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER FORM OF LIABILITY) SHALL BE LIMITED TO THE MONTHLY FEE PAID BY CUSTOMER FOR THE CUSTOMER-LOCATION WHERE AND WHEN THE BREACH IS ALLEGED TO HAVE OCCURRED. 
    2. Limitations. EXCEPT FOR THE PARTIES’ OBLIGATIONS RELATED TO CONFIDENTIALITY PROTECTION OF INTELLECTUAL PROPERTY, DAMAGES THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, AND CUSTOMER’S INDEMNIFICATION OBLIGATION’S, AS PART OF THE CONSIDERATION UNDER THIS AGREEMENT FOR SERVICES PROVIDED BY BIGLEAF AND THE FEES PAID BY CUSTOMER, NEITHER PARTY WILL BE LIABLE TO THE OTHER (WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER FORM OF LIABILITY, AND WHETHER OR NOT THE OTHER PARTY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR i) CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES; ii) LOST PROFITS, LOSS OF REVENUE, LOSS OR CORRUPTION OF CONTENT OR BUSINESS INTERRUPTION.  THIS DISCLAIMER AND LIMITATION OF LIABILITY ARE MATERIAL INDUCEMENTS FOR THE PARTIES TO ENTER INTO THIS AGREEMNT AND ARE INTENDED TO SURVIVE A FINDING BY A COURT OR ARBITER THAT THE EXCLUSIVE REMEDIES UNDER THE AGREEMENT OR ANY ORDER FAIL OF THEIR ESSENTIAL PURPOSE.
  9. GENERAL PROVISIONS
    1. Assignment. Bigleaf may assign an Order or this Agreement, without the Customer’s prior written consent, to its Affiliate, or in connection with a merger, acquisition, divestiture, corporate reorganization, or sale of all or substantially all of the assets used by it to perform its obligations under the applicable Order.  Customer may not assign or otherwise transfer an Order or this Agreement without Bigleaf’s prior written consent, which Bigleaf may grant or withhold in its sole discretion.  Any consent by Bigleaf will not release Customer from its obligations under the Order or this Agreement unless the consent signed by an authorized officer of Bigleaf expressly releases Customer from its future obligations under such Order.   Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties, their respective successors and permitted assigns.
    2. Choice of Law, Jurisdiction & Attorney’s Fees. Each Order and the enforcement of the Agreement under such Order shall be governed by the substantive law of the state of Oregon law (“Governing Law”) and the Parties consent to the exclusive jurisdiction of, and venue in, the federal and state courts located in Portland, Oregon.  Each Party waives its right to trial by jury.  In the event of any litigation arising out of this Agreement, the prevailing Party shall have the right to collect from the other Party its reasonable costs and necessary disbursements and attorneys’ fees incurred in such litigation or any appeal from a judgment entered in such litigation.  The construction and interpretation of this Agreement will be in accordance with its explicit language and excludes the Parties’ course of dealing and usage of trade.
    3. Force Majeure. Except with respect to payment of applicable Fees., neither Party will be liable for a delay or failure in its performance caused by an occurrence beyond its reasonable control.
    4. Agreement, Severability, Waiver & Survival. This Agreement contains the full and complete understanding between the Parties with respect to the provision and receipt of the Services and supersedes all prior representations or agreements (oral or written) between them. If any provision of this Agreement if found by a court of competent jurisdiction to be contrary to Law, the provision shall be modified by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by Law, and the remaining provisions of the Agreement shall remain in effect.  No waiver will be effective unless made explicit and in writing.  Waiver of one breach will not constitute waiver of any other breach.  The following Articles and Sections shall survive the termination or expiration of this Agreement for any reason: 2, 3, 6, 7, 8, 9 and any payment obligations incurred prior to the expiration or termination of this Agreement.
    5. Modification. Except as otherwise stated in an Order, for a modification of this Agreement or an Order to be legally binding, it must be in a writing signed by authorized representatives of each Party.
    6. Notice. Notices must be in writing to the addresses indicated in the applicable Order.  Notices will be deemed to have been given upon: i) personal delivery; ii) the second (2nd) business day after first class mailing, iii) the first (1st) business day after sending via a reputable overnight carrier, or iv) the first (1st) business day after sending via the Contractual Notice email address identified in the Order.  Bigleaf may contact Customer for any reason independent of this Agreement including, but not limited to, offer new products and or services and such contact will not be deemed to be “unsolicited” under applicable Law.
    7. Regulatory Compliance. Each Party will comply with all Laws applicable to it under this Agreement, including, but not limited to Laws related to data privacy, data protection, anti-corruption and export control.  In addition, each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Customer shall not permit its users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction. Furthermore, Customer represents and warrants that (i) all users are prohibited from residing in, or operating from, any country that is sanctioned by either the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) or the United Nations Security Council (“Prohibited Countries”), and (ii) it will not knowingly permit any data pertaining to residents of any Prohibited Countries be processed by the Services, including by prohibiting users from processing any such data via the Services.
    8. Relationship of the Parties. Customer and Bigleaf are independent contractors and this Agreement is of a non-exclusive nature. Nothing in this Agreement creates, or is intended to create, an agency, employment, franchise, joint venture, or partnership relationship between the Parties.  Each Party represents that it, its Affiliates, employees and agents have neither received nor offered any illegal or improper bribe, kickback, payment, gift or thing of material value form the other Party, its Affiliates, employees or agents in connection with the execution of these general terms and conditions or any Order.  If either Party learns of any violation of the above restriction, it will provide prompt notice to the other Party.  There are no third-party beneficiaries to this Agreement, except Affiliates, where expressly stated.
    9. Enforcement. Each Party acknowledges that the provisions of this Agreement regarding confidentiality, Intellectual Property and Customer’s access to and use of the Services are reasonable and necessary to protect the legitimate business interests and that any breach of such provisions shall result in irreparable injury to the other for which monetary damages could not adequately compensate.  If there is a breach of such provisions, then the injured Party shall be entitled, in addition to all other rights and remedies which it may have at Law or in equity, to have a decree of specific performance or an injunction issued by any competent court, requiring the breach to be cured or enjoining all persons involved from continuing the breach.  The existence of any claim or cause of action that the breaching Party (or any other person involved in the breach) may have against the non-breaching Party shall not constitute a defense or bar to the enforcement of such provisions.
    10. Counterparts and Originals. To the extent permitted by Governing Law, Orders and amendments to the Agreement or Orders may be executed and delivered in two or more counterparts, each of which when so executed and delivered will be deemed an original, but all of which together will constitute the same instrument.  Signatures of Orders and amendments to the Agreement or Orders may be executed and delivered by facsimile or other electronic signature (including portable document format) by either of the Parties and the receiving Party may rely on the receipt of such document so executed and delivered electronically or by facsimile as if the original had been received.

 

Bigleaf Service Agreement 09023