Last updated August 12, 2020
Terms and Conditions
BluBracket, Inc. (“BluBracket”) will provide services (“Services”) to the customer (“Customer”) subject to these Terms and Conditions (the “Terms”). Customer and BluBracket may be referred to in these Terms individually as a “Party” or collectively as the “Parties.”
By submitting a purchase order, signing an order or other purchase document in any form for the Services (“Order”), Customer agrees to comply with and be bound by these Terms. These Terms, together with any Order(s), constitutes the entire agreement between BluBracket and Customer (the “Agreement”). BluBracket reserves the right to revise these Terms from time to time, which will be updated at www.blubracket.com/terms-conditions. Any changes will be effective upon posting the revised version of these Terms.
IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, CUSTOMER MUST NOT USE THE SERVICES.
1. DEFINITIONS. Certain definitions used in these Terms are set forth below; other capitalized terms used herein shall have the respective meanings set forth elsewhere in these Terms:
1.1. “BluBracket Applications” are a set of hosted applications that may be integrated with the BluBracket Platform.
1.2. “BluBracket Platform” means BluBracket’s proprietary platform which provide insights into the use of and access to Customer’s Data and which highlight certain security risks within Customer’s development environment.
1.3. “Confidential Information” means all non-public, proprietary or 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 the Confidential Information of BluBracket. Customer Data shall be considered the Confidential Information of Customer.
1.4. “Customer Data” certain non-public Customer information, including but not limited to source code
1.5. “Documentation” means the documentation and manuals provided by BluBracket to its customers in general regarding the operation, use, and features and functions of the BluBracket Platform and Applications.
1.6. “Initial Term” means the period time beginning upon the Effective Date and ending on the last day of the Program Term set forth in an Order(s).
1.7. “Order” or “Order Form” means the order form or document that sets forth the Customer contact information, Services being purchased, pricing, and any other relevant business terms and signed by both Parties.
1.8. “Professional Services” means implementation, configuration, or other professional services set forth in an Order.
1.9. “Renewal Term” means the period of time beginning on the day after the expiration of the Initial Term or any Renewal Term and ending one year thereafter.
1.11. “Services” means use and access to the BluBracket Platform, BluBracket Applications, and any Professional Services associated therewith.
1.12. “Term” means the Initial Term, plus any Renewal Terms.
1.13. “User” means Customer’s employees and subcontractors who provide development services to Customer and who are authorized by Customer to access and use the Services.
2. PROVISION OF SERVICES
2.1. BluBracket Platform and Applications. During the Term, BluBracket shall make the BluBracket Platform and Applications available to Users (a) to submit Customer Data, to a central location(s) in which data is stored and managed (“Repositories”); (b) to generate reports and analytics identifying weaknesses in Customer Data (“Reports”); and (c) access and use Reports for internal purposes only, all in accordance with the Documentation, subject to the limits set forth in the applicable Order Form.
2.2. Restrictions. Customer shall not, and it shall not permit others to: (a) alter, reverse engineer, decompile, disassemble, create derivative works, or otherwise seek to obtain the source code or APIs to the BluBracket Platform and Applications or any portion thereof; (b) rent, lease, copy, or distribute the BluBracket Platform and Applications to a third party for any purpose; (c) 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 BluBracket Platform and Applications ; (f) circumvent or modify any security measures or technologies included as part of the BluBracket Platform and Applications , including those indented to restrict license rights.
2.3. Access. Customer’s Users shall be permitted to access the BluBracket Platform and Applications using a dedicated username and password (“Login Credentials”) via several methods, including via web browser, via a software agent, and via a SAML login protocol. If Customer chooses to utilize a SAML login protocol (“SAML Protocol”), Customer acknowledges that BluBracket has no control over such processes, and consequently makes no representations or warranties that the BluBracket Platform and Applications will function in conjunction with the SAML Protocol as intended.
2.4. Professional Services. BluBracket shall provide Professional Services connection with Customer’s use of the BluBracket Platform and Applications. Any deliverables, concepts or inventions created or developed before or while providing the Professional Services (“Professional Services Intellectual Property”) are not considered a work made for hire. Subject to these Terms, BluBracket hereby grants to Customer a non-exclusive, worldwide, royalty-free right to use, copy, store, and transmit the Professional Services Intellectual Property during the Term, as necessary for Customer to use the BluBracket Platform and Applications under Section 2.1.
3. CUSTOMER OBLIGATIONS
3.1. Login Credentials. Customer shall at all times remain responsible for any and all actions taken using Customer’s Login Credentials.
3.2. On-Premise Software. In certain instances, depending on the architecture of Customer’s computing environment, the Agent or other on-premises software may be required in order to enable the BluBracket Platform and Applications to access Customer Data (“On Premise Software”), in which case, the BluBracket Platform and Applications 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.
3.3. Compliance with Laws. Customer shall ensure that it and its Users’ use of the Services is at all times compliant with all applicable local, state, federal and international laws, including without limitation, those related to data privacy, international communications, and the exportation of data of any kind.
3.4. 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 these Terms, and that the Customer Data does not infringe the rights of any third party. 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. Customer Data provided pursuant to this Agreement shall at all times be processed and maintained in the United States.
3.5. 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.
4. CONFIDENTIAL INFORMATION
4.1. In General. The Receiving Party shall protect the Disclosing Party’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.
4.2. 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.
5.1. Generally. 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.
5.2. Feedback. Customer may provide suggestions, recommendations, and other feedback about the Services (“Feedback”). BluBracket shall own, without limitation, all Feedback, and Feedback shall not be considered a work made for hire.
5.3. Customer Data. Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to Customer Data.
6. ORDERS, FEES & PAYMENT
6.1. Orders. Any Orders placed hereunder shall be signed by both Parties and shall be incorporated into this Agreement.
6.2. Fees and Payment. All fees are as set forth in the applicable Order Form. Unless otherwise set forth in an Order Form, fees are calculated and invoiced annually, in advance. Customer shall make payments within 30 days after the 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 will be billed to Customer at cost, if incurred. Except as expressly set forth herein, all fees are non-cancellable and non-refundable.
7. TERM AND TERMINATION
7.1. Term. This Agreement shall remain in effect during the Initial Term, and shall automatically renew for successive Renewal Terms, unless either Party gives notice of its election to not renew at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as applicable.
7.2. Suspension of Service. BluBracket reserves the right to suspend the Services: (a) effective immediately if BluBracket knows or reasonably suspects that Customer is in violation of Section 2.2 (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.
7.3. Termination. Either Party may terminate this Agreement or an Order Form immediately upon notice if the other Party: (a) fails to cure a material breach of this Agreement or the applicable Order Form within 30 days of receiving written notice of such breach if such breach is capable of a cure, (b) commits a material breach which is not capable of cure; (c) ceases operation without a successor; or (d) 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 Form shall not automatically terminate this Agreement; however, in the event that this Agreement terminates, any Order Form incorporated into this Agreement shall also automatically terminate.
7.4. 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 for Services delivered through the date of termination.
7.5. Survival. The following Sections shall survive expiration or termination of this Agreement: 2.2 (“Restrictions”), 4 (“Confidential Information”), 5 (“Ownership”), 6.2 (“Fees and Payment”), 7 (“Term and Termination”), 8 (“No Warranty”), 9 (“Indemnification”), 10 (“Limitation of Liability”), and 13 (“General”).
8. NO WARRANTY. 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. CUSTOMER ACKNOWLEDGES THAT 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.
9.1. By BluBracket. 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.
9.2. 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 Customer’s unauthorized or illegaldisclosure of Customer Data to BluBracket; 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.
10. LIMITATION OF LIABILITY
10.1. BLUBRACKET SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOSS OF USE, LOST OR INACCURATE DATA, DAMAGE TO CUSTOMER’S COMPUTING ENVIRONMENT, FAILURE OF SECURITY MECHANISMS, BUSINESS INTERRUPTION), 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.
10.2. BLUBRACKET’S ENTIRE LIABILITY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO BLUBRACKET DURING THE TWELVE MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM.
10.3. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO ITS INDEMNIFICATION OBLIGATIONS SHALL BE SUBJECT TO THE LIMITATIONS IN SECTIONS 10.1 OR 10.2.
11. AUDIT. 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.
12. 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.
13.1. 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.
13.2. 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.
13.3. 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.
13.4. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California 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.
13.5. 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.
13.6. 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.
13.7. 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.
13.8. 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.