Last updated April 19, 2019
These terms of service (the “Terms”) are a legal agreement between you (“you,” “your”) and BluBracket, Inc., doing business as BluBracket (“BluBracket”, “we”, “our” or “us”) and govern your use of BluBracket services, including websites, software and other services (“Services”). If you are using the Services on behalf of an organization, you represent to us that you have authority to bind that organization or entity to these Terms, and that the organization accepts these Terms. By authenticating your email, accessing or using the Services or by signing an order form or other purchase document in any form for the Services, including any transactions processed via our website (“Order”), you agree to comply with and be bound by these Terms. These Terms, together with any Order, constitutes the entire agreement between you and us.
We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms at www.blubracket.com. Any changes will be effective upon posting the revised version. If in our sole discretion, we deem a revision to these Terms to be material, we will notify you via the Services and/or by email to the email address associated with your account. It is your responsibility to keep your email contact information updated at all times, and to review the most recent version of these Terms once you have been notified of the changes. By continuing to access or use the Services after the effective date of any revision to these Terms, you agree to be bound by the revised Terms for your use of the Services. If you are unwilling or unable to be bound by these Terms, do not access or use the Services.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES.
Access to Services. During the subscription term set forth in an Order (“Term”), BluBracket gives you permission to access and use the Services for your own internal use only, in accordance with these Terms and any other terms contained in an Order, subject to termination in accordance with these Terms. You remain responsible at all times for your Users’ compliance with the terms and conditions contained herein. “User” shall be defined in the Order.
Restrictions on Use. You shall not, and you shall not permit anyone else to (i) modify, distribute, adapt, decompile, disassemble, reverse assemble, reverse engineer, prepare derivative works of, or attempt to decipher any code relating to the Services or BluBracket technology; (ii) use, evaluate, or view the Services for the purpose of creating a competitive product; (iii) market, offer to sell, resell and/or sublicense the Services or act as a service bureau; (iv) use the Services in violation of BluBracket policies, applicable laws, ordinances or regulations, whether domestic or international; (v) use the Services to send unsolicited or unauthorized advertising, junk mail or spam; (vi) knowingly transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs; (vii) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Services except as expressly agreed; or (viii) circumvent or disable any usage rules or other security features of the Services. You shall provide us with such cooperation related to any unauthorized use as we may reasonably request.
User Account. An Internal All Access User (or an administrator, on an Internal All Access User’s behalf) must register for and maintain a user account with us in order to use the Services (“Account”). You are responsible for all activities that occur through your Account, and you agree to keep your Users’ user identification and password secure. You agree to notify us immediately of any unauthorized use of an Account or any other breach of security. If there is actual or suspected unauthorized use by anyone who obtains access to the Services directly or indirectly through your Account(s), you will take all steps reasonably necessary to terminate the unauthorized use, and we may suspend the Account and your access to and use of the Services.
Content. At all times you retain full right, title, and interest to any data or document owned or licensed by you, which is encrypted or processed using the Services (“Content”), and we do not claim ownership of that Content. You and you alone are responsible for the nature, quality and accuracy of your Content, and you represent and warrant that, to your actual or constructive knowledge, the Content, use or transmission of your Content does not violate any applicable laws or these Terms. We strongly recommend that you maintain appropriate backup copies of your Content.
Rights to Content. We do not, directly or indirectly, have the ability to view your Content; however, in order to perform the Services, we require certain rights. To that end, you grant us a non-exclusive, non-transferable, royalty free, right to transmit, process, disclose and display your Content during the Term, solely to the extent necessary to provide the Services or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), or as otherwise required by law. You understand that the Services enable you and you alone to assign and control access to your Content, and you alone may empower User(s) to share Content with others. We do not control or endorse any Content that you may make available using the Services.
3. Consent to Electronic Communications
By authenticating your email or registering an account with BluBracket, you understand that we may send you electronic communications or data regarding the Services including but not limited to: (a) notices about your use of the Services, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding BluBracket’s products and services. We will give you the opportunity to opt out of receiving promotional electronic mail from us by following the opt out instructions provided in the message.
4. Fees, Invoices and Payment
All fees, if applicable, and payment terms are set forth in an Order. You will pay all invoices within thirty (30) days of date of invoice. If payment is late, we may charge you a late fee of 1% per month, or the maximum amount permissible by law, or we may terminate your access to the Services. Unless we agree otherwise, fees for Services are due annually, in advance. All fees are non-cancellable, non-refundable, and exclusive of taxes. If applicable, you are responsible for the remittance of any taxes.
5. Intellectual Property Rights
We retain all right, title and interest including all related intellectual property rights, in and to the Services, Feedback (defined below), and any and all related and underlying software, format, directories, queries, structure and organization of the software, tools, techniques, algorithms, works of authorship, databases, technology, reports and documentation, including any modifications or derivative works thereof that may be developed prior to these Terms or in the course of providing the Services. All rights not expressly granted by us are hereby reserved.
Feedback. You may provide us with input, recommendations, comments and other feedback about the Services, or you may suggest and work with us to develop new or additional features (“Feedback”). In such an event, we shall own without limitation all Feedback, and Feedback shall not be considered a work made for hire.
7. Open Source
The Services may include open source software components that are subject to open source licenses (“Open Source Software”). Your right to use such Open Source Software is subject to and governed by the terms and conditions of any applicable open source license, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein (“Open Source License Terms”). In the event of a conflict between these Terms and the Open Source License Terms, the Open Source License Terms shall control.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND “WITH ALL FAULTS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLUBRACKET AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
9. LIMITATION OF LIABILITY
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF US TO YOU. THE MAXIMUM AGGREGATE LIABILITY OF US TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICES IS LIMITED TO THE AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. BLUBRACKET EXPRESSLY DISCLAIMS LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION OR DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. WE ARE NOT RESPONSIBLE FOR DELAYS, INTERRUPTIONS SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OUTSIDE OF OUR REASONABLE CONTROL.
We will indemnify you and your respective directors, officers, employees, representatives, agents and contractors from and against all claims, liabilities, damages, losses and expenses arising out of or in connection with any third party suit brought against you based on a violation of any U.S. patent, trademark, or copyright arising from your use of the Services. The foregoing indemnity shall not apply to any claim where the alleged infringement would not have occurred but for your modification of the Services, or combination of the Services with any service or product not provided or approved by us.
You will indemnify, defend and hold us and our respective directors, officers, employees, representatives, agents and contractors harmless from and against all third party claims, liabilities, damages, losses and expenses arising out of or in connection with (i) your unauthorized use or disclosure of Content, including but not limited to infringement of any intellectual property or other right of any person or entity; and/or (ii) your breach of any U.S. law or regulation in connection with your use of the Services. You agree not to settle any such matter without our prior written consent, which shall not be unreasonably withheld. We will notify you of any such claim, action or proceeding upon becoming aware of it.
Termination. BluBracket may terminate these Terms or any Order: (i) immediately upon notice to you if there is a material breach which is not capable of a cure (including your breach of Section 1(b) (Restrictions on Use)); (ii) if there is a material breach of these Terms or an Order, if such breach is not cured within thirty (30) days after notice is provided. We may immediately terminate these Terms or an Order if you become or are declared insolvent, are the subject of any proceedings relating to liquidation, insolvency, or for the appointment of a receiver or similar officer, make an assignment for the benefit of creditors or enter or into an agreement for extension or readjustment of all or substantially all of your obligations. Failure to pay fees due shall be considered a material breach of these Terms.
Effect of Termination. Upon termination of these Terms or any Order: (i) you shall immediately cease use of the Services; (ii) Confidential Information shall be returned or destroyed; and (iii) any outstanding fees shall immediately become due. The following Sections shall survive termination: 1 (but only the “Restrictions on Use” paragraph), 4, 5, 6, 8, 9, 10, 11, and 12, 15, and 16.
12. Confidential Information
Generally. “Confidential Information” means all confidential or proprietary information disclosed by one of us (“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 such disclosure. Among other things, Confidential Information includes: software (including trade secrets embodied therein), Content, product roadmaps and pricing. Receiving Party agrees to protect Disclosing Party’s Confidential Information with at least a reasonable degree of care. We both agree to use Confidential Information only in connection with the Services and for the purposes contemplated herein. Confidential Information does not include information which the Receiving Party can document: (i) is or becomes publicly known through no wrongful act of the Receiving Party; (ii) is rightfully in Receiving Party’s possession or known to it prior to receiving the Confidential Information by Disclosing Party; (iii) was received from a third party without breach of any confidentiality obligation, or (iv) is independently developed by Receiving Party without access to the Confidential Information in question.
Period of Protection, Return of Confidential Information. Confidential Information shall be protected during the Term and for a period of 3 years following termination of these Terms; trade secrets shall be protected indefinitely. At any time upon request and upon termination of these Terms, Receiving Party shall return or destroy the Confidential Information. Notwithstanding the foregoing, neither we nor you shall be obligated to destroy Confidential Information contained in an archived file created in accordance with our or your security and/or disaster recovery procedures (“Archived Copy”); provided that such Archived Copy shall be subject to the protections described herein for so long as the Archived Copy is retained.
Court Order. In the event that Receiving Party is subject to any governmental or court order compelling disclosure of any Confidential Information, Receiving Party may disclose such information to the extent required, provided that, if legally permissible, Receiving Party shall notify Disclosing Party of such request prior to any disclosure so that Disclosing Party may seek a protective order.
We reserve the right to perform an audit during the Term, no more than once per calendar quarter, to confirm the total number of Users that are actually using the Services. If we discover that more people are using the Services than we’ve agreed in an Order, then we will invoice you for the applicable unpaid license and support fees, prorated through the expiration of the applicable Term.
14. Use of Name
We may identify you by name as a customer on our website, in presentations, in customer lists, or other material that generally identifies our customers. Any further use of your name, logo, or trademark shall require your consent. You may not issue any press release without our prior written consent.
15. U.S. Export
The Services are subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply. These laws include restrictions on destinations, end users and end use. You are not permitted to transfer the Services without U.S. government permission to anyone on U.S. government exclusion lists. You represent and warrant that you are not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
Assignment. You may not assign your rights, duties, and obligations under these Terms without our prior written consent, which consent will not be unreasonably withheld or delayed. We may freely assign these Terms to a successor in interest of all or substantially all of our assets. Any assignment in violation of this section shall be void.
Governing Law; Jurisdiction and Venue. These Terms are governed by the laws of the State of California, without regard to conflicts of law principles. You consent to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, U.S.A. to resolve any dispute, claim or controversy that arises in connection with this Agreement. The parties specifically exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
Notices. We may send you, in electronic form, information about the Services, additional information, and information the law requires us to provide. We may provide required information to you at the email address specified in your Account. Notices emailed to you will be deemed given and received when the email is sent. You may provide legal notices to us via email to legal@BluBracket.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: BluBracket, Attn: Legal Department, 200 Middlefield Rd Suite 100, Menlo Park, CA 94025.
Relationship of Parties. Both of us are independent contractors without authority to bind each other or to make any representations on behalf of the other. These Terms do not create any partnership, joint venture, employment or agency relationship.
Force Majeure. Neither of us will be liable to the other for any delay or failure to perform any obligation under these Terms if the delay or failure is due to circumstances beyond such party’s reasonable control.
Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid by a court of competent jurisdiction, such provision shall be enforced to the maximum extent possible and the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the use of the Services under these Terms is found to be illegal, unenforceable, or invalid, your right to use the Services will immediately terminate.
Waiver. The failure by either of us to enforce any provision of these Terms does not waive that or any other provision of these Terms. A waiver must be in writing signed by the waiving party in order to be effective.
Entire Agreement. These Terms, along with the Order, reflect the complete and exclusive understanding of both of us. No conflicting terms contained in any purchase order or other similar preprinted document that you provide shall have any force and effect, even if signed by us.