1.1 "Agreement" - is an agreement between BIGSTEP and CLIENT, as amended and supplemented by subsequent addendum or updated with any Schedules, exhibits, or amendments. If no such agreement is entered into, then these TOU shall constitute the Agreement.
1.2 "BIGSTEP Services" or "Services” - are the services accessed or used by CLIENT. Such Services may be customized for CLIENT. BIGSTEP Services include:
a. BIGSTEP Metal Cloud Services, which are infrastructure related services such as compute, storage and network offered as a service and controlled through a web interface.
b. BIGSTEP Platform Services are application level services such as installation, configuration, scaling, upgrade and maintenance offered as a service.
1.3 "Content,” "CLIENT Data,” or "Data” shall mean any of the following: (i) data and information belonging to CLIENT, a beneficiary of BIGSTEP Services, (ii) data supplied by the Users of the applications included in the Content, (iii) data from or used in connection with transactions at the level of the applications included in the Content such as, but without limitation to information related to transactions and sales, information related to End-User accounts, etc., (iv) any information generated by the use of the applications or configurations that are licensed, on a non-exclusive basis, to CLIENT for the duration of the Agreement.
1.4 "Delivery" is the procedure by which BIGSTEP activates the Services.
1.5 "Demo Mode" is a grace period granted to CLIENT, to benefit from the BIGSTEP Services free of charge for a period of time, to be determined exclusively by BIGSTEP. CLIENT shall not be billed while in Demo Mode. BIGSTEP is entitled to suspend Demo Mode at any time, without prior notice, by starting to issue invoices.
1.6 "End-User” or "User" means any person who uses, in any way, any application made available through BIGSTEP Services, whether or not he/she has received a written or verbal authorization to this effect from CLIENT. CLIENT shall bear full responsibility regarding authorized End-Users, regardless of the way in which they have been authorized. The tacit acceptance, by CLIENT, of a particular action of the End-User, irrespective of the ways in which such action would materialize, is deemed an "authorization".
1.7 "Excessive Use" means ways to use the BIGSTEP Services that may affect server resources, infrastructure, support services or third-party applications. A detailed description of excessive use, as well as examples of circumstances that may be classified as such may be identified in the Acceptable Use Policy.
1.8 "Internet Traffic" is the transfer of data from a BIGSTEP server to and from the Internet.
1.9 "Malfunction" means an error, deficiency affecting the full functionality of the Services.
1.10 "Network" means the communications network under the direct control of BIGSTEP, through which CLIENT accesses BIGSTEP Services.
1.11 "On-Demand Interventions" means BIGSTEP interventions on its network, on the Internet network or the Services, requested by CLIENT or by state institutions and bodies.
1.12 "On-Line Contracting" means a specific way of entering into the Agreement remotely, by electronic means, which involves CLIENT providing information in the BIGSTEP Account, the acceptance, in full, of this Agreement, and the transmission of the contracting offer to BIGSTEP.
1.13 "Planned Interruption" - means any interruption due to maintenance, routine or upgrading works, which may affect the availability of the service. BIGSTEP shall endeavor to send CLIENT, at least 2 business days in advance, a notice of any Planned Interruption that shall affect the availability of the Services that is outside of the standard maintenance windows of between 23:00 (UTC) on Saturdays and 06:00 (UTC) on Sundays, except during Emergency Intervention Works and On-Demand Repairs/Interventions.
1.15 "Reserved Services" or "Subscriptions" are offered with a pre-negotiated and fixed price for a particular period, typically 12 months.
1.16 "Service Suspension" means the period during which BIGSTEP Services shall be unavailable at the initiative of BIGSTEP, in the special cases provided for in this Agreement.
1.17 "Usage of Internet Bandwidth" means bandwidth that the server may use, when necessary, as a "Committed Information Rate" (guaranteed bandwidth) value, measured in megabits per second. Any data transferred between the Server and the Internet shall be deemed usage. CLIENT understands and agrees that the Usage of Internet Bandwidth shall be measured exclusively by BIGSTEP, using specialized software, and then reported to CLIENT.
1.18 "Usage of Internet Traffic" means the amount of data transferred from CLIENT's Services to the Internet, measured in gigabytes. CLIENT understands and agrees that the Usage of Internet Traffic shall be measured exclusively by BIGSTEP, using specialized software, and then reported to CLIENT.
2. CLIENT’s Rights and Responsibilities.
2.1 CLIENT shall have the following obligations:
a) To refrain from disclosing the access data (e.g. login credentials) to unauthorized persons;
b) To work with BIGSTEP to ensure safe access to the Services and the Network and to notify BIGSTEP of any circumstances of which CLIENT is aware that may jeopardize system security;
c) To immediately notify BIGSTEP of any change of CLIENT's contact details;
d) To provide in CLIENT’s Account and connection with the Agreement complete and accurate information and documents if required to provide the Services;
e) To ensure that all data and information related to CLIENT Data observes the limits and the conditions necessary to comply with any applicable law or regulations and the Agreement;
f) To refrain from transmitting, using BIGSTEP Services, any material that might cause any harm to a computer system owned by BIGSTEP or other users of the Internet;
g) To use BIGSTEP Services or the Network only in the manner permitted by any applicable law or regulations, best practice in the industry, or the Agreement;
h) To take all steps necessary to perform regular backups of CLIENT Data, of the configured infrastructure or of other settings required for BIGSTEP Services to operate properly;
i) To take all actions necessary to ensure the security of any data, information, applications and passwords related to BIGSTEP Services;
j) To co-operate with BIGSTEP in all matters relating to Services;
k) To obtain and maintain all necessary licenses, permissions, and consents which may be required for CLIENT Data during the Agreement;
l) To agree to the specific licensing terms of the applications, operating systems, software licenses (Software) provided by Bigstep or by a third party and this Software may only be used as part of Bigstep Services
2.2 CLIENT shall use services, licenses, software products or applications in accordance with the licensing terms specified by BIGSTEP's Partners or third parties. BIGSTEP makes no warranty regarding the availability, operation or quality of the services, licenses, software products, applications or operating systems provided under a non-exclusive license during the Agreement or otherwise used by CLIENT. BIGSTEP does not guarantee that the services, licenses, software products, applications or operating systems shall meet all CLIENT's requirements;
2.3 CLIENT is solely responsible for the actions of its End-Users since BIGSTEP is not able to control how the Services are used, and/or the End-Users' actions in what concerns the BIGSTEP Services.
3. BIGSTEP’s Rights and Responsibilities
3.1 BIGSTEP shall take reasonable steps to prevent and mitigate attacks originating from third parties on CLIENT Data and/or other users of BIGSTEP Services, such as, but not limited to hacking, cracking, denial of service;
3.2 BIGSTEP may implement measures for Service Suspension, with written notice, in the following situations:
3.2.1 Use of BIGSTEP Services under these TOU in a manner that represents a security risk, either for BIGSTEP Services or for a third party;
3.2.2 Use of BIGSTEP Services under these TOU in a manner that has detrimental effects to BIGSTEP Services, to the Network or to CLIENT's Data or other BIGSTEP's clients’ data;
3.2.3 Use of BIGSTEP Services under these TOU in a manner that result in the liability of BIGSTEP, of its affiliated parties or of third parties;
3.2.4 Fraudulent or illegal use of BIGSTEP Services under these TOU;
3.2.5 When the standard consumption limit is reached and CLIENT does not provide sufficient guarantees.
3.2.6 Bigstep suspect that the Clinet account is fraudulent or at risk of non-payment and the Client fails to meet Bigstep identification and verification procedures.
3.3 BIGSTEP reserves the right to change or modify features and functionalities of any of the BIGSTEP Services, provided that CLIENT has been sent a notice thereof if such modification shall negatively impact CLIENT’s use of the Services. The CLIENT may terminate the subscription for the Service that has been modified within 30 days of such change, in writing. If BIGSTEP does not receive, within 30 days of the change, a written notice of termination, the new terms shall be deemed accepted by CLIENT, as well as the new conditions of provision of BIGSTEP Services and of the additional features, and any changes made;
3.4 BIGSTEP may change, discontinue, or terminate any API in connection with the Services. BIGSTEP shall take reasonable measures to support the previous version of the API for a period of six months after the change, discontinuation or termination, unless (a) it raises security issues or otherwise violates any intellectual property rights, (b) it is economically or technically difficult/cumbersome or (c) a legal requirement or a request of a competent body that must be fulfilled;
3.5 To limit the misuse of the Services and to ensure compliance with the Service Level Agreements to all CLIENTs, BIGSTEP may temporarily limit certain parameters of the Services, such as disk space, data transfer speed, access to certain services, use of the Internet bandwidth, etc. for CLIENT.
3.5 On Demand Services may be subject to consumption limits. The consumption limit may be changed by BIGSTEP depending on the guarantees provided or on CLIENT's creditworthiness and reliability.
4. Protection of CLIENT Data.
4.1 CLIENT is solely responsible for:
4.1.1 Any Content uploaded, i.e. texts, databases, sounds, music, graphics and video files, and the like that are held/located/uploaded or delivered through BIGSTEP Services by CLIENT or by third parties;
4.1.2 The Content uploaded and its functionality, including in terms of compatibility with BIGSTEP Services, APIs, software products or software applications provided by BIGSTEP or by third parties;
4.1.3 Use of BIGSTEP Services on its account by third parties whether authorized or unauthorized by the CLIENT;
4.1.4 Obtaining all permits and approvals for the Content (such as approvals for the connections or interaction of the Content with various types of third-party applications, authorizations or formalities required by the laws in force to provide certain on-line services or imposed to personal data operators);
4.1.5 Providing and maintaining the accuracy and legality of the information relating to the Content;
ensuring that any information relating to the Content does not infringe any third party rights or applicable laws or regulations;
4.1.6 Compliance of the Content with the Acceptable Use Policy;
4.1.7 Maintaining current Data backups to prevent and mitigate Data loss.
4.1.8 The security of the Data stored on BIGSTEP infrastructure both in terms of preserving its integrity against damage that may arise from the occurrence of physical faults of the equipment, and in terms of preserving its integrity against attacks using malicious software or exploiting hardware flaws or features which may be flawed from a security standpoint/perspective;
4.1.9 The prevention of, protection against and mitigation concerning of Data loss due to hardware failures or human error.
4.2 CLIENT warrants that it has all rights, including proprietary rights in relation to CLIENT's Data, such as copyright, trademark and patent rights, trade secrets, etc.
4.3 If the Content includes applications that allow for UGC ("user generated content") such as forums, blogs, chat rooms, and other interactive features, CLIENT shall assume sole responsibility for all the actions of the End Users as if they were CLIENT’s own actions, whether they were taken with or without CLIENT's consent. CLIENT undertakes to act quickly to delete or block public access to illegal information or to information that might violate the rights of a third party, according to applicable laws or regulations.
4.4 Apart from the technical monitoring conducted at the level of BIGSTEP Services, according to which BIGSTEP may intervene to remedy or prevent certain failures, BIGSTEP has no access and shall not interfere with the Content and shall not make any amendment thereto, except in Service Suspension situations, Emergency Intervention, and On-Demand Interventions. CLIENT is aware and accepts that the operation of certain procedures, at the level of BIGSTEP Services, may involve certain technical interventions on the Content, for which CLIENT shall take full responsibility. BIGSTEP acknowledges and respects the ownership of CLIENT in relation to the Content, undertaking to refrain from any action that might jeopardize the security and integrity thereof. In order to ensure a high level of security, BIGSTEP shall take reasonable steps to use security solutions in accordance with internationally recognized standards in the industry. In addition to the security measures provided by BIGSTEP, CLIENT shall maintain optimal security solutions, including encryption of the Content. CLIENT acknowledges and agrees that the privacy obligations related to the Content are borne exclusively by CLIENT.
5.2 Non-standard service. If CLIENT requests BIGSTEP to implement a certain configuration (hardware or software) or services that are not included in the BIGSTEP offer, BIGSTEP may mark the configuration or service as "unacceptable", "non-standard", "best effort", "reasonable efforts", "one- off", "end of life", "no support" or any other similar term (referred to in this section as a "non-standard service"). BIGSTEP may refuse to provide any guarantee in respect of a non-standard service. CLIENT agrees that BIGSTEP shall not be liable for any loss or damage arising from the provision of a non-standard service. The BIGSTEP Service Level Agreement (SLA) shall not apply to a non-standard service, or to services that are adversely affected by the non-standard service. CLIENT agrees that non-standard services might not be compatible with other BIGSTEP services, such as the backup or monitoring services.
5.4 Limitation of Liability. To the fullest extent permitted by law, the total liability, in the aggregate, of Bigstep, Bigstep’s officers, directors, partners, employees, agents, and subconsultants, to Client, and anyone claiming by, through, or under Client for any claims, losses, costs, or damages whatsoever arising out of, resulting from or in any way related to this Agreement from any cause or causes, including but not limited to negligence, professional errors and omissions, strict liability, breach of contract, or breach of warranty, shall not exceed the Packet Price charged for the month immediately preceding such breach.
5.5 BIGSTEP does not warrant the uninterrupted operation or the compatibility with all types of equipment or configurations of the software supplied with a non-exclusive license for the Agreement. "Software supplied with a non-exclusive license" shall mean any computer program or software made available to CLIENT during the Agreement and which is related to an additional feature or to management applications, but not limited thereto.
5.6 BIGSTEP does not guarantee that new resources shall always be available or that the supply of new resources or services shall be done in a certain amount of time.
5.7 Indemnity. CLIENT agrees to indemnify BIGSTEP and hold it harmless against any claim made by any third party arising from CLIENT's use of the Services and against any loss (direct or indirect), costs, actions, suits, claims, expenses (including legal fees), loss of profit as a result of a breach by CLIENT of its obligations under this Agreement or arising from any intentional or negligent act or omission of CLIENT or of CLIENT's End-Users. CLIENT shall provide BIGSTEP with all the information and assistance that are reasonably necessary for the defense against or settlement of such claims.
Global Version 1.1: Last updatedMonday, May 3, 2019