IN THESE TERMS AND CONDITIONS, "WE," "US," "ITS" AND "OUR" REFER TO Big Switch Networks, Inc., ("Big Switch"), AND "YOU" AND "YOUR" REFER TO YOU. Before using our service (the "Big Switch Service"), please read this agreement carefully.
1. ACCEPTANCE OF TERMS
By using the Big Switch Service, you agree to be bound by these terms and conditions of use ("Terms"). If you do not agree to these Terms, please do not use the Big Switch Service. Big Switch provides the information and services on the Big Switch Service to you, the user, conditioned upon your acceptance, without modification, of the Terms contained herein. Your use of the Big Switch Service constitutes your agreement with such Terms.
We reserve the right, at our discretion, to change, modify, add or remove portions of these Terms periodically. Such modifications shall be effective immediately upon posting of the modified Terms to our website. Your continued use of the Big Switch Service following the posting of changes to these Terms will mean that you accept those changes.
To update the Terms, we will post the changed version and its effective date on this page. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Big Service (or any part thereof). Big Switch shall not be liable to any user or other third party for any such modification, suspension or discontinuance except as expressly provided herein.
2. NO UNLAWFUL OR PROHIBITED USE
By using the Big Switch Service, you warrant to Big Switch that you will not use the Big Switch Service for any purpose that is unlawful or prohibited by these Terms. If you violate any of these Terms, your permission to use the Big Switch Service automatically terminates.
3. DESCRIPTION OF SERVICE
The Big Switch Service is designed to work with our controller software, which we may license to you under a separate license agreement (the “License Agreement”).
We will provide you with 24/7 access to the management console at bigswitch.com with hosted accounts and data administered by Big Switch. You will opt in to connect the network controller and applications to bigswitch.com and allow data to be transferred from the network controller software to the hosted account at bigswitch.com. This data may include, but is not limited to, statistics and logs of network activity.
Your rights to access and use the Big Switch Service is subject to your complying with all terms of the License Agreement.
4. REGISTRATION OBLIGATIONS
If required by Big Switch, each user must: (a) provide true, accurate, current and complete information on the Big Switch Service's registration form (collectively, the "Registration Data") and (b) maintain and promptly update the Registration Data as necessary. If, after investigation, we have reasonable grounds to suspect that any user's information is untrue, inaccurate, not current or incomplete, we may suspend or terminate that user's account and prohibit any and all current or future use of the Services (or any portion thereof) by that user other than as expressly provided herein.
Each user will receive a password and account designation upon completing Big Switch.com registration process and is wholly responsible for maintaining the confidentiality thereof and wholly liable for all activities occurring there under. Big Switch cannot and will not be liable for any loss or damage arising from a user's failure to comply with this Section, including any loss or damage arising from any user's failure to (a) immediately notify Big Switch of any unauthorized use of his or her password or account or any other breach of security and (b) ensure that he or she exits from his or her account at the end of each session.
5. DATA UPLOAD
If you utilize the Big Switch Service with our controller software, you may upload certain data relating to your controllers. We may use this data to provide you with the Big Switch Service.
We may terminate the Big Switch Service or any portion thereof in our absolute discretion and for any reason.
Our termination of any user's access to the Big Switch Service hereunder may be effected without notice and, on such termination, we may immediately deactivate or delete user's account and/or bar any further access to any reports we may have generated.
Each user shall indemnify, defend and hold harmless Big Switch Networks, Inc., its subsidiaries and affiliates and their respective officers, employees and agents from any and all claims, demands, damages, costs and liabilities, including reasonable attorneys' fees, made by any third party due to or arising out of that user's acts or omissions, including claims arising out of that user's use of the Big Switch Service.
8. DISCLAIMER OF WARRANTIES
EACH USER'S USE OF THE BIG SWITCH SERVICE IS AT HIS OR HER SOLE RISK. THE BIG SWITCH SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND BIG SWITCH ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER DATA. EACH USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO HIS OR HER COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE BIG SWITCH SERVICE. BIG SWITCH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
SPECIFICALLY, BIG SWITCH MAKES NO WARRANTY THAT (I) THE BIG SWITCH SERVICE WILL MEET YOUR REQUIREMENTS, (II) ANY USER ACCESS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (III) THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY ANY USER WILL MEET SUCH USER’S EXPECTATIONS, AND (IV) ANY ERRORS IN THE BIG SWITCH SERVICE WILL BE CORRECTED. EXCLUDING ONLY DAMAGES ARISING OUT OF BIG SWITCH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BIG SWITCH SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BIG SWITCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY USER'S USE OR INABILITY TO USE THE BIG SWITCH SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA; OR ANY OTHER MATTER RELATING TO THE BIG SWITCH SERVICE. NOTHING HEREIN SHALL BE DEEMED TO CREATE AN AGENCY, PARTNERSHIP, JOINT VENTURE, EMPLOYEE-EMPLOYER OR FRANCHISOR-FRANCHISEE RELATIONSHIP OF ANY KIND BETWEEN BIG SWITCH AND ANY USER OR OTHER PERSON OR ENTITY NOR DO THESE TERMS OF SERVICE EXTEND RIGHTS TO ANY THIRD PARTY.
SCHEDULED AND PREVENTIVE MAINTENANCE AS WELL AS REQUIRED AND EMERGENCY MAINTENANCE WORK MAY TEMPORARILY INTERRUPT THE BIG SWITCH SERVICE.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL BIG SWITCH INC., SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE BIG SWITCH WEBSITES, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
OUR LIABILITY, AND THE LIABILITY OF SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $1000. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10. GENERAL INFORMATION
The Terms constitute the entire agreement between each user and Big Switch and govern each user's use of the Big Switch Service, superseding any prior agreements. Each user may be subject to additional terms and conditions that may apply when that user uses our controller software. The Terms and the relationship between each user and Big Switch shall be governed by the laws of the State of California without regard to its conflict of law provisions and each party shall submit to the personal and exclusive jurisdiction of the courts located within the county of San Mateo County, California. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
Last updated: January 2014