TERMS & CONDITIONS
- PROVISION OF SERVICES. Subject to the Agreement, BluBracket shall make available to Customer its proprietary technology platform (“BluBracket Platform”) and associated software products, which provide insights into the use of and access to Customer’s Data and which highlight certain security risks within Customer’s development environment. “BluBracket Applications” are a set of hosted applications that may be integrated with the BluBracket Platform. Any reference to “Services” shall include use of the BluBracket Platform, BluBracket Applications, and any Professional Services associated therewith. In accordance with the Order Form and the Agreement, Customer may permit its developers (“Developers”) to access and use the Services to submit certain non-public Customer information, including but not limited to source code (“Customer Data”), to a central location(s) in which data is stored and managed (“Repositories”). Customer may, at its option, use the Services to generate reports and analytics identifying weaknesses in Customer Data (“Reports”).
- Access via Web Browser. During the Term, and subject to the limits set forth in an Order Form, Customer may permit its Developers, subject to the limits set forth in an Order Form, to use a web browser to access a password-protected portion of the BluBracket Platform, in order to access and use the BluBracket Applications and generate Reports.
- Access via Agent. Customer may, subject to payment of additional fees, license, download and deploy a separate software agent made available by BluBracket to facilitate Customer’s access to and use of the Services (“Agent”). References to “Services” shall include “Agent”.
- Access via SAML Login. At its option, Customer may utilize a SAML login protocol in order to access the Services (“SAML Protocol”). BluBracket has no control over such processes, and consequently makes no representations or warranties that the Services will function in conjunction with the SAML Protocol as intended.
- Customer Accounts. Customer shall be permitted to access the Services using a dedicated username and password assigned to each Customer Developer (“Login Credentials”). Customer shall at all times remain responsible for any and all actions taken using Customer’s Login Credentials.
- On-Premise Software. In certain instances, depending on the architecture of Customer’s computing environment, the BluBracket Agent or other on-premises software may be required in order to enable the Services to access Customer Data (“On Premise Software”). If applicable, the Services, when installed in Customer’s computing environment, are self-contained. Customer shall comply with any and all BluBracket or third-party requirements, including any BluBracket Platform infrastructure requirements, if and as applicable, to facilitate this connection. References to “Services” shall include “On Premise Software”.
- LICENSE AND LICENSE RESTRICTIONS
- License Grant. The Services are licensed and not sold. BluBracket hereby grants to Customer, a limited, non-exclusive, non-sublicensable and non-transferable license to use the Services, during the Term, including any Reports generated therefrom, for internal purposes only, in accordance with the Documentation made available by BluBracket (“Documentation”), subject to the limits set forth in the applicable Order Form and the Agreement.
- License Restrictions. Customer shall not, and it shall not permit others to: (a) alter, reverse engineer, decompile, reverse compile, disassemble, translate, create derivative works, or otherwise seek to obtain the source code or APIs to the Services or any portion thereof; (b) rent, lease, copy, provide access to or sublicense the Services to a third party for time sharing purposes or on a service bureau basis; (c) use the Services or any Reports for any reason other than for Customer’s internal business purposes; (d) use the Services to build a competitive product or service for any purpose; (d) disclose the results of any benchmark tests; (e) remove or modify any copyright, trademark, or other proprietary notices contained in the Services; (f) circumvent or modify any security measures or technologies included as part of the Services, including those indented to restrict license rights.
- DATA, Reports
- Customer shall ensure that Customer’s use of the Services and all Customer Data is at all times compliant with all applicable local, state, federal and international law, regulations and conventions, including without limitation, those related to data privacy, international communications, and the exportation of data of any kind. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants that it has sufficient rights in the Customer Data to authorize BluBracket to process, distribute and display the Customer Data as contemplated by this Agreement, and that the Customer Data does not infringe the rights of any third party. Customer Data provided pursuant to this Agreement shall at all times be processed and maintained in the United States.
- Right to Access Customer Development Environment. Customer permits BluBracket to access Customer’s computing environment solely if and to the extent required to perform the Services hereunder.
- Rights to Customer Data. Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to Customer Data. Customer hereby grants to BluBracket a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data during the Term, solely to the extent necessary to provide the Services hereunder.
- Retention and Destruction of Customer Data. At any time upon request, BluBracket shall delete Customer Confidential Information, including Customer Data. BluBracket has no obligation to retain Customer Data or any Reports beyond the Term.
- Indemnification by Customer. Customer shall indemnify, defend and hold BluBracket harmless from and against any third party claims, losses, damages, judgments, including any costs or legal fees incurred by BluBracket (together, “Claim(s)”) arising from BluBracket’s authorized use of Customer Data; provided that Customer shall have received from BluBracket: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the defense or settlement of such claim, however BluBracket may, at its option and expense, participate in the defense of any such claim; and (c) all reasonable cooperation at Customer’s expense.
- PROFESSIONAL SERVICES. If set forth in an Order Form and subject to payment of applicable fees, Professional Services may be provided by BluBracket in connection with the Services licensed hereunder. Professional Services consist of implementation and configuration services, and reflect concepts that have been developed and used by BluBracket in the past, or that may be developed by BluBracket in the course of providing the Services hereunder (together, “Professional Services IP”) and are not considered a work made for hire. Subject to the terms of this Agreement, BluBracket hereby grants to Customer a non-exclusive, worldwide, royalty-free right to use, copy, store, and transmit the Professional Services IP during the Term, for the purposes contemplated hereunder.
- BluBracket retains all right, title and interest including all patent, copyright, trade secret and other intellectual property rights in and to the Services, Professional Services IP, Reports, Feedback and Additional Features, including the BluBracket Platform, the BluBracket Applications, and any and all related and underlying software, tools, techniques, algorithms, works of authorship, databases, technology, reports and documentation, including all modifications and derivative works thereof that may be developed prior to the Agreement or in the course of providing the Services (together, “BluBracket IP”). For the avoidance of doubt, BluBracket IP expressly excludes any Confederal Information of Customer and/or Customer Data contained in the Reports.
- Feedback and Additional Features. Customer may provide suggestions, recommendations, and other feedback about the Services, or Customer may suggest and work with BluBracket to develop new additional features (“Feedback” and “Additional Features” respectively). BluBracket shall own without limitation all Feedback and Additional Features, and neither Feedback nor Additional Features shall be considered a work made for hire. If and as applicable, BluBracket grants Customer a non-exclusive, worldwide, royalty-free, license to use, copy, store, and transmit during the Term any Additional Features that may be developed, for use with the Services, for the purposes contemplated hereunder. Additional Features and Feedback are considered “Services” for purposes of this Agreement.
- ORDERS, FEES & PAYMENT
7.1 Orders. Any orders placed hereunder shall be signed by both parties and shall reference this Agreement “Order Form”. An Order Form shall contain Customer contact information, product descriptions, pricing, and any other relevant business terms.
7.2 Fees and Payment. All fees are as set forth in the applicable Order Form. Unless otherwise set forth in an Order Form, Program Fees are calculated and invoiced annually, in advance. All payments shall be due net 30 from date of invoice. Customer shall pay any sales, use, GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of BluBracket. Reasonable out of pocket expenses incurred by BluBracket in the course of providing the Services (“Expenses”) will be billed to Customer at cost, if incurred. Except as expressly set forth herein, all fees are non-cancellable and non-refundable.
7.3 Suspension of Service. BluBracket reserves the right to suspend and/or terminate the Services and the Agreement (including any Order Form): (a) effective immediately if BluBracket knows or reasonably suspects that Customer is in violation of Section 3.2 (License Restrictions), or (b) upon at least seven (7) days’ notice in the event that payment is more than 30 days past due. This shall be in addition to any other remedy available to BluBracket at law or in equity.
- TERM AND TERMINATION
- This Agreement shall remain in effect from the Effective Date through expiration of the Program Term set forth in the Order Form (“Term”), including any renewal term, if applicable, subject to termination in accordance with this Agreement. Any renewal term shall be considered part of the “Term” for the purposes of this Agreement.
- Either party may terminate this Agreement (including an applicable Order Form) immediately upon notice if the other party: (a) fails to cure a material breach of this Agreement within 30 days of receiving written notice of such breach if such breach is capable of a cure, or immediately upon notice in the event of a material breach which is not by its nature capable of cure; (b) ceases operation without a successor; or (c) becomes the subject of any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, if such proceeding is not dismissed within 60 days of such filing. Termination of a single Order From shall not automatically terminate this Agreement; however, in the event that this Agreement terminates, any Order Form referencing this Agreement shall also automatically terminate.
- Effect of Termination. Upon expiration or termination of this Agreement for any reason, Customer shall: (a) immediately cease all use of and access to the Services; (b) return or destroy (and certify destruction thereof) any and all BluBracket Confidential Information in its possession, and (c) immediately pay to BluBracket all fees due through the date of termination.
- Survival. The following Sections shall survive expiration or termination of this Agreement: 3.2 (License Restrictions), 4.5 (Indemnification by Customer), 6 (Ownership), 7.2 (Fees and Payment), 8 (Term and Termination), 11 (Limitation of Remedies and Damages), 12 (Indemnification), 13 (Confidential Information), and 15 (General).
- Customer agrees to keep accurate records pertaining to its use of the Services. BluBracket may, no more than two (2) times per calendar year during the Term, audit Customer’s applicable records, as well as its deployment and use of the Services, specifically including On-Premise Software, within Customer’s computing environment (“Audit”). Any Audit shall be performed upon reasonable advanced written notice and with minimal disruption to Customer’s business. Should the results of an Audit reveal that Customer is out of compliance with the license rights as set forth in an Order From (a) Customer shall promptly pay any additional fees owed, and (b) if actual use exceeds permitted use as set forth in the Order Form by more than five percent (5%), Customer shall pay the costs of the Audit.
- NO WARRANTY
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE services are provided “AS IS” AND WITH ALL FAULTS. blubracket specifIcally DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Remedies and Damages
- BLUBRACKET SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST or inaCcurate DATA, DAMAGE TO CUSTOMER’S COMPUTING ENVIRONMENT, FAILURE OF SECURITY MECHANISMS, BUSINESS INTERRUPTION, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. BLUBRACKET SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER third party SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BLUBRACKET.
- NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BLUBRACKET’S ENTIRE LIABILITY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO BLUBRACKET DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.
- BluBracket shall indemnify, defend and hold Customer harmless from and against any claim brought by a third party claiming infringement of any U.S. patent, U.S. copyright or U.S. trademark based upon Customer’s authorized use of the Services; provided that: (a) Customer provides BluBracket with prompt written notice of the claim; (b) BluBracket retains the sole right to direct the defense or settlement of such claim; and (c) Customer provides reasonable cooperation at BluBracket’s expense. If Customer’s use of the Services or any portion thereof is found to infringe, or if in BluBracket’s opinion it may be found to infringe, BluBracket may, in its sole discretion (i) modify the Services such that they are no longer infringing, (ii) procure for Customer the right for Customer to continue to use the affected Services, or (iii) terminate the Agreement and refund to Customer any pre-paid fees for any remaining portion of the Term. The foregoing obligation shall not apply if (1) the any part of the Services are modified by any party other than BluBracket or (2) the alleged infringement is due to unauthorized use of the Services. THIS SECTION SETS FORTH blUBRACKET’s SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- CONFIDENTIAL INFORMATION
- “Confidential Information” means all confidential information disclosed by one party (“Disclosing Party“) to the other (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding disclosure. The Services, pricing and the terms of this Agreement, shall be deemed Confidential Information of BluBracket. Customer Data shall be considered the Confidential Information of Customer. Each party shall protect the other’s Confidential Information with the same degree of care as it uses to protect its own such information, but in no event less than a reasonable standard of care, and Confidential Information shall only be used for the purposes contemplated herein. The Receiving Party’s nondisclosure obligations shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by the Receiving Party without access to such information; or (e) disclosure is required pursuant to a regulation, law or court order (but only to the extent required to comply with such order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which monetary damages would be insufficient and therefore upon any such disclosure the Disclosing Party shall be entitled to equitable relief in addition to any other remedies it might have at law.
- EXPORT COMPLIANCE. The Services may be subject to export laws of the United States and other jurisdictions, and Customer shall at all times comply with all applicable export laws. The Services may only be used for non-prohibited, commercial purposes, by non-prohibited end-users. Each party represents that is not on a U.S. government denied-party list, and it and shall not export or transfer the Services to any end-user located in a U.S. embargoed country in violation of any U.S. Export law or regulation.
15.1 Assignment. Neither party may assign this Agreement in whole or in part without the other party’s prior written consent, however BluBracket may assign this Agreement to a successor-in-interest of all or substantially all of its stock, assets, or voting securities, provided that such successor agrees to be bound by the terms of this Agreement. Any attempted assignment in violation of this provision will be void.
15.2 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. No terms contained in a purchase order shall have any force and effect, even if signed and returned by BluBracket. Any modification of this Agreement shall be in writing and signed by an authorized representative of each party.
15.3 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation hereunder if the delay or failure is due to unforeseen events which occur and which are beyond the reasonable control of such party, including but not limited to natural disasters, pandemics, strikes, war, acts of terrorism, riot, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
15.4. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any claim arising from this Agreement shall be brought in the federal courts for the Northern District of California or the state courts located in San Mateo, California.
15.5 Notice. Any notices hereunder shall be in writing and sent to the parties at the addresses identified on the Order Form and shall be deemed effective: (a) if given by hand, immediately upon receipt or (b) if given by overnight courier service, the first business day following dispatch.
15.6 Relationship of Parties. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, or agency created hereby and neither party has the power to bind the other without prior written consent.
15.7 Severability. If any provision of this Agreement is determined to be unenforceable or invalid by a court of competent jurisdiction, such provision shall be construed to the maximum extent possible and the Agreement shall otherwise remain in effect.
15.8 Waivers. Failure by either party to enforce a provision of this Agreement shall not be deemed a waiver of any other provision. A waiver will not be effective unless in writing signed by the waiving party.