THIS AGREEMENT is made and entered into between Big Picture Results., and/or its subsidiaries Big Picture Results and Customer (or “You”), Customer and Big Picture Results are collectively referred to in this Agreement as the “parties.” This agreement is made between parties upon initial customer signup and by the virtue of customers submitting billing information to Big Picture Results. The terms and conditions of this agreement may change from time to time and is the responsibility of the customer to stay compliant with these terms. This document is made available to customers at the time of signup and upon ongoing login into Big Picture Results network and services.
1. TERMS and CONDITIONS:
a. Entire Agreement and Understanding: The Agreement constitutes a legally binding contract between Big Picture Results and Customer, which does not extend to any other person or entity, and is the totality of the following documents: (i) the Cloud Services Agreement, (ii) the Order/Estimate; (iii) and any and all Specific Product/Service Terms and Conditions containing additional terms for use of a particular Service.
Any amendments to the Agreement must be expressly done by formal writing and signed by both parties.
b. Customer Data: Customer agrees and acknowledges that the Customer is solely responsible for the preservation of Customer Data. Even with respect to Customer Data as to which Customer has contracted for additional or included backup Services and/or Support, Big Picture Results shall have no responsibility to preserve such Customer Data, and any such backup Services and/or Support is provided AS IS, WITHOUT WARRANTY.Big Picture Results is not responsible to Customer for loss of Customer Data or any third party and/or unauthorized use of the Services and/or access to Customer’s Customer Data. The customer has the option to create a backup of any Customer Data, including a copy of cloud server(s) and/or cloud-hosted databases, and further acknowledges and agrees that it is Customer’s sole responsibility to maintain at least one (1) current copy of any programs, software, and/or Customer Data outside of Big Picture Results Network and to initiate backup(s) and perform quality testing on such.
c. Customer’s Obligations: Customer agrees to (i) comply with any and all applicable laws; (ii) comply with the Agreement; (iii) use software and Services in compliance with the Agreement; (iv) make full and timely payment of fees for the Services; (v) use and maintain reasonable security precautions, protection, and backup of Customer Data, in light of use of Services, including, without limitation, encrypting any PII transmitted to and from, and while stored on the Network, and maintaining security of login credentials and not share such credentials except to establish and/or authorize users in Account; (vi) cooperate with Big Picture Results reasonable investigation of assessment of fees and/or overage charges, outages, security problems, and any suspected breach of the Agreement; (vii) keep billing contact and other Account information, including but not limited to contact names, physical mailing addresses, telephone numbers, and email addresses up to date; (viii) immediately notify Big Picture Results of any unauthorized use of Services and/or any other breach of security; (ix) determine the suitability of Services in light of the type of Customer Data used with Services; and (x) preserve Customer Data.
f. Export: Customers will comply with all applicable export and import control laws and regulations in its use of Services, and in particular, Customer will not utilize Services to export or re-export data or software without all required United States and/or foreign government licenses. It is Customer’s responsibility to obtain the same, and in the event of any breach of this duty resulting in legal claims against Big Picture Results, Customer shall defend and hold Big Picture Results harmless from all claims and damages arising therefrom.
g. Execution: The Agreement may be signed in multiple counterparts, which taken together will be considered as the original executed Agreement. Facsimile signatures, signatures by electronic image (i.e. .pdf or .jpg format), and/or electronic signatures shall be deemed as original signatures.
h. IP Addresses: Upon expiration or termination of the Agreement, the Customer must discontinue the use of Services and relinquish the use of IP addresses and server names assigned to Customer by Big Picture Results in connection with Services
i. Legal Compliance: In Big Picture Results sole discretion, Big Picture Results may suspend or terminate Services
and/or this Agreement immediately, with or without prior notice, upon receipt of any lawfully issued notice alleging use of Services and/or the Network to accomplish violations of law from any court having jurisdiction over Big Picture Results. When subject to lawful process requiring disclosure, Big Picture Results may disclose Customer’s identity and/or contact information, without providing Customer prior notice of such disclosure, and Big Picture Results will not be liable for damages and/or results thereof. The customer agrees not to bring any action and/or claim against Big Picture Results for such disclosures.
j. No High-Risk Use: Customer may not use Services in any situation where failure or fault of Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, without limitation, Customer may not use, or permit any other person to use, Services for the development, design, manufacture, production, stockpiling, and/or use of nuclear, chemical, and/or biological weapons, weapons of mass destruction, or missiles or in connection with aircraft or other modes of human mass transportation, or nuclear or chemical facilities.
k. Relationship: The relationship between Big Picture Results and Customer is that of independent contractors. Neither party is the agent for the other nor has the right to bind the other in any agreement with any third parties. Nothing in this Agreement shall be construed to constitute Customer as Big Picture Results agent, employee, independent contractor, joint venture, and/or any other similar entity. There are no third-party beneficiaries to this Agreement.
l. Renewal and Non-renewal: Upon expiration of the Initial Term, this Agreement will automatically renew for a term equal to the length of the Initial Term (“Renewal Term”). For example, if the Agreement’s Initial Term is one (1) month, the Agreement will automatically renew one (1) month from the Effective Date, and the Renewal Term will be one (1) month. This Renewal Term will automatically occur, unless and until one party gives the other a thirty (30) day advanced written notice of non-renewal, prior to the expiration of the Initial term or expiration of the then-current Renewal Term. The customer agrees to follow Big Picture Results non-renewal process, accessible from Customer’s Account to give an effective notice of non-renewal. Unless explicitly noted in the agreement, all agreements starting with an initial 12-month term will automatically convert into a month-to-month Renewal Term upon completion of the initial 12 payments.
m. Termination for Infringement: If Big Picture Results is faced with a credible claim that Services infringe on the intellectual property rights of a third party, and Big Picture Results is not able to obtain the right to use the infringing element and/or modify Services such that they do not infringe, Big Picture Results may terminate Services on reasonable notice of at least thirty (30) days and will not have any liability on account of such termination, except to refund the amounts paid for Services not used as of the time of termination (i.e. pre-payment).
n. Third-Party Services: Big Picture Results from time to time may recommend and/or make available, including without limitation availability through deployment, various third-party software, products, implementation tools, and/or services for Customer’s consideration. Big Picture Results MAKES NO REPRESENTATION AND/OR WARRANTIES WHATSOEVER REGARDING SUCH THIRD PARTY SOFTWARE, PRODUCTS, TOOLS, and/or SERVICES THAT ARE NOT PURCHASED FROM Big Picture Results. Customer’s use of any such third party software, products, tools, and/or services is governed by the terms of Customer’s agreement with the third party provider of such, if any, and is at Customer’s sole risk.
o. Third-Party Users: Customer may permit subsidiary and affiliated companies to use Services, and the Customer is responsible for acts and/or omissions of any and all third party users. Customer may resell to third parties and assumes full responsibility for third-party activities and content, which are governed by the Agreement. Unless otherwise expressly stated in the Agreement, Big Picture Results will provide Support only to Customer and will not provide support to Customer’s customers, end-users, subsidiaries, affiliates, third parties, and/or third-party affiliates. There are no third-party beneficiaries to the Agreement, meaning that Customer’s customers, subsidiaries, affiliates, and/or third parties have no rights against Big Picture Results under and/or arising from the Agreement.
p. Service Management Agent: Customer agrees that the Customer will not interfere with any service management software (“SMS”) agent(s) that Big Picture Results may install on Services. Big Picture Results agrees that any SMS agent will only utilize a minimal amount of computing resources and will not interfere with the Customer’s use of Services. Should Customer attempt to and/or actually interfere and/or disable such SMS agent(s), Customer’s Service will become “Unsupported” and Big Picture Results may access Services to reinstall such SMS agent(s).
q. Support: Big Picture Results will only provide support to Customer’s Account administrative and/or technical contact(s) listed at the time of request for Support.
2. WARRANTIES and LIMITATION OF LIABILITY:
With respect to the Services to be provided hereunder, Customer understands and acknowledges that Big Picture Results MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. Customer further agrees that Big Picture Results and any of its employees, agents, affiliates, and/or suppliers shall not be liable to Customer for any claims, damages, or loss of profit which may be suffered by Customer or any other entity in any respect for direct, indirect, consequential, actual, or punitive damages arising out of or in relation to Services provided hereunder, including, but not limited to, losses or damages resulting from loss of Customer Data. The utilization of any data or information received by Customer via Big Picture Results Network, Services, and/or other Big Picture Results other resources is at Customer’s sole and absolute risk, and Big Picture Results specifically disclaims and denies any responsibility for the completeness, accuracy, or quality of such data or information.
3. INTELLECTUAL PROPERTY
a. Intellectual Property: Neither party shall take any action or intentionally omit to take any action that would jeopardize, limit, or interfere in any manner with the ownership of the other party in the other party’s products, services, documentation, or intellectual property. Title to and ownership of any and all original and/or copies of any products, services, software, documentation, and/or Internet services developed by and/or for Big Picture Results and/or owned by Big Picture Results through the Term of the Agreement, whether in machine-readable or printed form, and including, without limitation, any derivative works, compilations, or collective works thereof, and all related technical know-how, and all rights therein (including without limitation rights in patents, copyrights, and trade secrets applicable thereto), are and shall remain the exclusive property of Big Picture Results and its suppliers and/or its vendors. Customer shall not take any action to jeopardize, limit, and/or interfere in any manner with Big Picture Results rights, title to, and interest in and to its trade secrets, inventions, copyrights, and/or other intellectual property including without limitation disassembling, decompiling, or reverse-engineering any of Big Picture Results Internet software and/or any of Big Picture Results source code. Customer shall not use any of Big Picture Results intellectual property including without limitation Big Picture Results name, trademarks, trade names, or logos, in connection with the operation of Customer’s business, except as may be provided for in the Agreement. Neither party shall use the other party’s name, trademarks, or logos in either its own corporate name or in any fictitious name. Neither party nor its employees or agents shall knowingly remove or alter any trademark, trade name, copyright, or other proprietary notices, legends, or symbols from any of the other party’s products or documentation or intellectual property. The design and content created by Big Picture Results for the customer as well as customer data and lead information are owned by the customer and the customer has the right to copy these elements and transfer outside of the Big Picture Results network except for customers that are not in good standing. Big Picture Results is not responsible for facilitating the transfer of the content and is simply granting permission for the customer to do so.
b. Big Picture Results Network: Customer does not acquire any ownership interest in and/or right to possess the Network and/or any Network components, and Customer has no right to physically access to the Network.
c. Advertisement: Customer grants Big Picture Results a non-exclusive, worldwide, Big Picture Resultslty-free, and fully paid-up license during the Term to use of Customer’s name, trademarks, logos, marks, and/or trade names in connection with Big Picture Results Services (including Support) provisioned to Customer and to be listed as a customer of Big Picture Results Services by Big Picture Results and/or its designees. This includes the right of Big Picture Results to sub-license its affiliates and/or any third parties providing all or part of Services on behalf of Big Picture Results to achieve the foregoing.
d. Feedback: Big Picture Results owns all right, title, and interest in and to Feedback. Upon providing Feedback, Customer irrevocably assigns to Big Picture Results all right, title, and interest in and to any intellectual property rights in the Feedback and agrees to provide Big Picture Results with any assistance Big Picture Results may require to document, perfect, and/or maintain Big Picture Results rights in the Feedback.
e. Big Picture Results shall release the intellectual property ownership rights of material developed by Big Picture Results and for the customer including design, content, video, graphics, and blogs, to the customer upon completion of contract terms except for the third-party licenses that are subject to ownership transfer limitations. The client will forfeit any rights or claims to the IP of material designed by Big Picture Results upon early cancellations or termination of the contract unless the contract is paid in full. The client is responsible for downloading graphics, content, design, blogs, or other graphics prior to the end of their contract terms. Big Picture Results is not responsible for maintaining client files after contract termination. Big Picture Results may acquire third-party licenses to be used by the customer while using Big Picture Results services, such licenses are typically non-transferable unless specifically allowed by a written agreement.
f. Big Picture Results will indefinitely retain the intellectual property of all proprietary material developed and owned by Big Picture Results including frontend and backend coding, tracking systems, platforms, phone numbers, vanity URLs, and copyrighted material.
4. CONFIDENTIALITY & NON-SOLICITATION
a. Confidential Information: Customer and Big Picture Results hereby agree not to disclose or use and to assure that their employees and agents do not disclose or use each other’s Confidential Information. Both parties acknowledge that the other’s respective Confidential Information is valuable, special, and unique; that its unauthorized disclosure and/or use will cause irreparable injury to the other party; that immediate injunctive and/or other equitable relief will be necessary and appropriate to remedy an unauthorized disclosure or use of such information; and that such relief may include without limitation a Temporary Restraining Order (obtained ex parte) as well as permanent injunctive or other relief. Upon termination of the Agreement, each party agrees to return to the other party, within a reasonable time period, any and all Confidential Information and other materials belonging to the other.
b. Non-Solicitation: Customer shall not cause or attempt to cause any employee or agent of Big Picture Results, its subsidiaries, and/or of its parent company, to terminate employment or agency during the Term of this Agreement. The customer further agrees not to cause or attempt to cause any of Big Picture Results customers, their agents, or their employees to terminate their respective relationships with Big Picture Results, its subsidiaries, and/or its parent company.
c. This Section will survive the termination of the Agreement for a period of two (2) years.
5. FEES AND PAYMENT:
a. Set-Up and Initial Term Fees: Set-up fees, related service charges, and any applicable first payments for payment plan installments are due at the time Customer submits an Order/Estimate, orders Services, and/or provisions Services. The customer accepts and acknowledges that the Customer will be responsible for paying for any network resources that are used to connect Customer’s Services, even if the Customer is not utilizing Services. Customer may initiate non- renewal and/or a cancellation request in accordance with this Agreement but shall be responsible for paying for any Big Picture Results Network resources (including without limitation space provisioned for Customer’s Services) up to the point of non-renewal or cancellation. Customer further agrees and acknowledges that cancellations made after Customer submits an Order, orders Services, and/or provisions Services and/or Big Picture Results provisions Services for Customer will not nullify Customer’s obligation for set-up fees, related service charges, and all Initial Term fees and/or payments due under any applicable payment plan. All set-up and Initial Term fees are non-refundable, in whole or in part, even if Customer’s Account is suspended, canceled, or transferred prior to the end of the Initial Term. Any suspension, termination, and/or cancellation by Big Picture Results or Customer shall not relieve Customer of the obligation to pay all fees accrued prior to such suspension, termination and/or cancellation.
b. Invoices: Big Picture Results will charge Customer for fees in accordance with the Order; unless otherwise stated, the billing cycle for Services will be monthly. Big Picture Results will charge Customer’s credit/debit card without the invoice as follows: (i) for recurring fees. in advance, on or around the first day of each billing cycle; and (ii) for non-recurring fees (such as fees for initial setup fees, service-related charges, overages, cycle fees, and domain name registration fees) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Big Picture Results option.
c. Restrictive Endorsements: If Customer pays by check, restrictive endorsements or other statements on checks accepted by Big Picture Results shall have no effect.
d. Overages of Fair Usage Policy: Big Picture Results will bill Customer, and Customer shall pay, for excess resources used by Customer, including without limitation overages for data transfer, disk space usage, and additional call tracking minutes. Fair Usage Policy is calculated based on a 95% average of Big Picture Results's current customers and may vary from time to time. The current disk usage policy is set to 1000MB, Monthly Minutes 600 Minutes, and Bandwidth is 10,000MB per month.
e. Late Fees: In Big Picture Results sole discretion, interest charges may be added to any past due amounts at the rate of 1.5% per month (or the maximum rate allowed by law, if less). Additionally, Customer may incur a $50 late fee after a 7 day grace period.
f. Promotional Offers and Guarantees: All promotional offers may be invalidated by Big Picture Results, in its sole discretion, if Customer fails to make timely and full payment or if Customer cancels Services within 30 calendar days of the Effective Date, and, as such, Customer will be charged the full price Services. When applicable, phone call guarantees are credited to the customer's billing account at $10/call when applicable. Guarantees are not available in markets of less than 50,000 population.
g. Suspension of Services and Registered Name registration: Customer acknowledges and agrees that Customer’s Registered Name is subject to suspension, cancellation, or transfer by any ICANN procedure, by any Registrar and/or Registry Operator procedures approved under an ICANN-adopted policy, and/or by any other TLD Registry Operator procedures as the case may be, for the resolution of disputes concerning the Registered Name, and, in the event of Customer’s failure to pay, Customer agrees and acknowledges that Big Picture Results, in its sole discretion, may cause Customer’s Registered Name registration to be transferred to Big Picture Results. Should Big Picture Results cause Customer’s Registered Name registration to be transferred, Big Picture Results will possess any and all rights regarding such Registered Name registration including without limitation the right to make said Registered Name available to other parties for purchase. Big Picture Results may reinstate Customer’s Registered Name registration at Big Picture Results sole discretion following Big Picture Results receipt of payment in full from Customer (unless Big Picture Results has already sold the Registered Name registration to a third party, under the above provisions of this Agreement).
h. Default and Acceleration: Should Customer fail to make timely and full payment and/or otherwise breach this Agreement, Big Picture Results may declare Customer in default and require Customer to pay all fees owing for the then-current Term immediately and without prior notice. Further, in the event of such default, Big Picture Results may act, in its sole discretion, as Customer’s Attorney-in-Fact to execute actions and/or proceedings including without limitation selling and/or otherwise disclosing Customer Data and/or Customer’s Registered Name registration.
i. Collections: Customer shall reimburse Big Picture Results for all administrative costs (including reasonable attorney fees) associated with collecting overdue Account balances, delinquent payments, and/or dishonored payments, including without limitation credit card chargebacks.
j. Domain transfers: Big Picture Results will charge customers a one-time transfer fee of $25 per domain transfer provided the customer has fulfilled their contractual obligations.
k. Passthrough campaigns such as PPC and/or Display advertising will incur a management fee of 20% or $200/mo, whichever is more. All media related services are non-refundable; once the budget is allocated for such campaigns it cannot be transferred to any other campaign/services. Big Picture Results reserves the right to allocate budget between Yahoo, Google, and Bing based on performance and at its own discretion.
l. Reactivation: If the Customer cancels services and later wishes to reactivate the services, the customer is required to pay a $100 reactivation fee.
m. Website Files: Customers that have fulfilled their contracts are eligible to receive website files for no additional charge. Inactive Customers that have fulfilled their contract but do not have a live website, may be subject to a $250 fee for files.
n. All third-party partners and resellers are bound to an additional reseller agreement. Such agreements supersede the overlapping sections of the billing terms above.
6. Service Level Agreement (SLA):
If Big Picture Results fails to meet the System Availability standards set forth below during any calendar month, then Big Picture Results will, upon notification by CLIENT and verification by Big Picture Results, apply the percentage credits set forth below to the invoice amount (minus discounts or commissions) for the calendar month in which the credits were earned.
System Availability Standards during the calendar month:
(a) System Availability ≥ 99.5%: no credit.
(b) System Availability ≥ 98.5% and < 99.4%: credit of 5% of the month’s Fee.
(c) System Availability ≥ 97.5% and < 98.4%: credit of 10% of the month’s Fee.
(d) System Availability ≥ 96.5% and < 97.4%: credit of 15% of the month’s Fee.
(e) System Availability ≥ 95.5% and < 96.4%: credit of 20% of the month’s Fee.
(f) System Availability < 95.4%: credit of 25% of the month’s Fee.
7. SUSPENSION and TERMINATION:
a. Breach of Agreement: Big Picture Results, in its sole discretion, may unilaterally suspend and/or terminate Services without liability if: (i) Big Picture Results believes that Services are being used in violation of the Agreement; (ii) Big Picture Results discovers that Customer has (and/or is affiliated in a manner with a third-party customer that) used Services abusively in the past; (iii) Customer fails to make full and timely payment for Services, fees, and/or charges; (iv) Customer does not cooperate with Big Picture Results reasonable investigation of any suspected violation of the Agreement; (v) there is an attack on the Services and/or Services are/were accessed and/or manipulated by a third party; (vi) Big Picture Results is required to do so by law or a regulatory or governmental body; or (vii)
there is another event for which Big Picture Results reasonably believes, in its sole discretion, such action is necessary to protect Big Picture Results Network and/or other resources and/or other customers. If Big Picture Results suspends Customer’s access to Services and/or use of any portions of Services for any reason, Customer shall remain responsible for any applicable fees and charges for any Services to which Customer continues to have access, in addition to any applicable data storage fees and/or additional fees and/or charges. If Big Picture Results suspends Customer’s access to Services and/or use of any and/or all portions of Services due to a breach of Customer’s obligations under the Agreement, Big Picture Results may continue to charge Customer fees for Services, regardless of limited and/or no access to and/or use of Services, during the suspension, in addition to any applicable data storage fees and/or additional fees and/or charges. Big Picture Results, in its sole discretion, may charge a reconnection fee upon reinstatement of Service. Big Picture Results, in its sole discretion, may terminate access to Customer Data stored on Big Picture Results Network and will not be liable for any resulting damages and/or losses that may incur.
b. Notice of Suspension or Termination: Big Picture Results will attempt to give Customer reasonable advance notice of suspension or termination (of at least twelve (12) business hours), unless Big Picture Results determines, in its sole discretion, that such action on shorter or contemporaneous notice is necessary.
c. SLA Credits During Suspension: During the suspension, the Customer is not entitled to any SLA Credits under any applicable SLA.
Customer shall indemnify and hold harmless Big Picture Results from any and all loss, cost, expense, and damage on account of any and all manner of claims, demands, actions, suits, proceedings, judgments, costs, and expenses that may be initiated against Big Picture Results and Big Picture Results officers, directors, and employees for any Service provided to Customer by Big Picture Results, to include Webspace content that violates any copyright, trademark, or service mark; any proprietary right of any person or entity; any state and/or federal laws or regulations; or contains any defamatory matter.
a. Governing Law: The Agreement shall be governed by the laws of the State of California in the USA without regard to such State’s laws and rules concerning conflicts of laws. Each party agrees that jurisdiction and venue for any and all claims, disputes, and/or other matters arising from the Agreement San Diego County, California, to enforce and/or interpret the Agreement, the prevailing party in such action shall be entitled to all reasonable costs to include attorney fees. If either files or brings any such legal action outside San Diego, California, the defending party may make a formal demand listing all its reasonable costs and expenses including attorneys fees to the filing party and the filing party shall fully reimburse the defending party within ten (10) calendar days after receipt of such demand.
b. Severability: In the event that any term, condition, and/or provision of the Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, and/or invalid in whole or in part for any reason, the remaining provisions of the Agreement shall remain in full force and effect.
c. Interpretation: Captions in the Agreement are for convenience only. Use of the words and/or
the phrase “including,” “and/or,” and “such as” herein shall be read as “including without limitation.” The format, words, and phrases herein have plain English meanings and/or definitions generally understood in the Computer/Software/Internet Industries. This Agreement shall be construed according to its plain meaning. In the event any ambiguity is found herein, interpretation shall be based on the intent of the parties, rather than a construction automatically against the interests of the drafting party.
d. Survival: All Agreement terms, provisions, paragraphs, and/or sections, which by their nature are intended to survive expiration or termination of the Agreement, shall so survive.
e. Force Majeure: Either party shall be excused from performance to the extent that it is prevented from performing as a result of any act and/or event which occurs and that is beyond the nonperforming party’s reasonable control including without limitation: (i) acts of God; (ii) war; (iii) weather; (iv) utility or telecommunications outages; (v) unrest or riot; (vi) union strikes; or (vii) any action of a governmental entity, provided that such nonperforming party experiencing the force majeure provides the other with prompt written notice thereof and uses reasonable efforts to remedy effects of such force majeure.
f. Notices: Big Picture Results routine communications regarding Services and/or legal notices will be sent to the designated contact person listed on Customer’s Account either by electronic mail or USPS mail, except that Big Picture Results may give notice of Agreement revisions and/or amendments by posting such notice on Customer’s Account. The customer should send routine communications to Big Picture Results via links from Customer’s Account portal. All non-routine and/or legal correspondence should be sent either by electronic mail to legal@Big Picture Results.com or by USPS to...
Big Picture Results, LLC.
ATTN: General Counsel
10660 Scripps Ranch Blvd, Unit 100, San Diego, CA 92131
a. “Account” means the Customer’s account with Big Picture Results.
b. “Agreement” means the complete and entire understanding between the parties, exclusively represented by the totality of the following documents: (i) this Agreement; (ii) the executed Contract Order/Estimate; and (iii) any and all Specific Product/Service Terms and Conditions containing additional terms for use of a particular Service, or subsequent services provided by Big Picture Results to Customer.
c. “API” means application programming interface.
d. “Billing Policy” (“BP”) means Big Picture Results Billing Policy, available on Big Picture Results Contract Orders.
e. “Confidential Information” means all information disclosed by one party to the other, whether disclosed before or after the Effective Date of the Agreement, that the receiving party should reasonably understand to be confidential, including but not limited to: (i) unpublished prices and other terms of Services, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities and/or financial affairs, data center designs (including but not limited to non-graphical information observed during a data center tour), server configuration designs, and other proprietary information or technology; (ii) lists of subscribers, customers, and/or clients, including without limitation information such as credit card numbers, personal contact information, and preferences; and the results of market research performed or obtained by one another concerning any such subscribers, customers, and/or clients; and (iii) information belonging to and/or concerning one another which is not generally known by or disclosed to the public, including without limitation information regarding one another’s hardware, software, personnel, finances, business plans, computer programs, code, algorithms, expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics, and other technical, business, financial and product development plans, forecasts, strategies, and any other information marked “Confidential.” Information that is developed by one party on its own, without reference to the other party’s Confidential Information, or that becomes available to one party other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential information shall not include Customer Data.
f. “Customer Data” means all data, records, files, input materials, reports, forms, and/or other such items that are received, stored, and/or transmitted using Services, Big Picture Results Network, and/or other Big Picture Results resources.
g. “Effective Date” means the earlier of the date of (i) Agreement execution or (ii) Big Picture Results provisioning of Services.
h. “Feedback” means the information provided by Customer, either unsolicited or in response to a questionnaire, survey, and/or other material, regarding Customer’ opinions about Big Picture Results and/or its Services.
i. “Network” means Big Picture Results network of servers, machines, routers, hubs, switches, and other equipment that is integrated with the world-wide-web.
j. “Order/Estimate” means: (i) any Contract Order Customer submits for Services, (ii) any written order estimate (either in electronic and/or paper form) provided to Customer by Big Picture Results for signature that describes Service(s) Customer is purchasing that Customer signs, either manually or electronically, and (iii) Customer’s use or provisioning of Services through Customer’s Account, the Big Picture Results control panel or through an API.
k. “Personal Data” (“PII”) means: (i) a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health, or other data and/or attribute, such as a combination of the individual’s name, address, or phone number with the individual’s social security number and/or other government-issued number, financial account number, date of birth, address, biometric data, or other personally identifiable information; (ii) any “non-public personal information” as that term is defined in the Gramm-
Leach-Bliley Act found at 15 USC 1 6809(4); and/or (iii) “protected health information” as
defined in the Health Insurance Portability and Accountability Act found at 45 CFR 160.103. l.“Registered Name” means a domain name, whether consisting of two or more levels, about
which the Registry Operator of a Top-Level Domain (TLD), or an affiliate engaged in providing Registry Services, maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance. In essence, a Registered Name is a domain name that is registered with a Registry Operator, through an ICANN-accredited Domain Name Registrar.
m. “Services” means software, products, and/or services described in the Order and includes any service that Customer may self-provision through the Big Picture Results control panel, Customer’s Account and/or which Customer utilizes via an API.
n. “Support” means technical support for Services and/or any additional level of support offered by Big Picture Results applicable to specific Services ordered by Customer.
o. “Term” means the length of the Agreement; unless otherwise specified in the Order, the initial term of this Agreement is one (1) month (“Initial Term”), commencing on the Effective Date.
p. “Terms and Conditions” means the terms, conditions, and general provisions as listed in the Agreement, any applicable product or service-specific Product and/or Service Terms and Conditions, and any terms and conditions listed in the Order.