PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING “I ACCEPT THE AGREEMENT”, OR BY ACCEPTING OR EXECUTING AN ORDER FORM THAT INCORPORATES THIS AGREEMENT (THE “ORDER FORM”), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO ACCEPT AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS CLOUD SERVICES AGREEMENT (“AGREEMENT”). CUSTOMER’S USE OF THE CLOUD SERVICES, INCLUDING TRIAL USES, ARE GOVERNED BY THIS AGREEMENT.
IF YOU REGISTER FOR A FREE TRIAL FOR THE CLOUD SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
YOU FURTHER ACKNOWLEDGE THAT BY ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “CUSTOMER”, “YOU”, OR “YOURS” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH COMPANY OR OTHER ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR DO NOT AGREE WITH THESE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE CLOUD SERVICES OR ACCESS THE SYSTEM.
1. DEFINITIONS.
1.1.“Affiliate” means an entity that is controlled by, controls, or is under common control with such party.
1.2. “BLUE” means BLUE Software, LLC.
1.3. “Cloud Services” means the software-as-a-service offering provided in an Order Form or pursuant to a Trial Use. Cloud Services specifically exclude Third Party Content and Third Party Applications. References to Cloud Services in this Agreement also include the System and the Documentation.
1.4. “Cloud Services Term” means the period for which You ordered Cloud Services as set forth in an Order Form or the period You are given access to the Cloud Services under a Trial Use pursuant to Section 20.
1.5. “Concurrent Users” means the number of Users located in the geographic region(s) specified on the applicable Order Form who may access the Cloud Services at any one time.
1.6. “Control” means the ability, directly or indirectly, to direct the affairs of another by means of ownership, contract or otherwise.
1.7. “Customer”, “You” or “Your” means the company or other legal entity for which You are accepting this Agreement.
1.8. “Customer Content” means data in electronic form input or collected through the Cloud Services by or from Customer, including without limitation, all Customer trademarks, service marks, logos, typeface, fonts, images and text, including all Customer data stored in the System. Customer Content excludes Third Party Content and Third Party Applications.
1.9. “Documentation” means any materials that pertain to the Cloud Services and are made available to Customer by BLUE, including help menus or user guides, written BLUE policies, all as updated from time to time. References to Cloud Services in this Agreement include Documentation.
1.10. “Excess Use” means a situation in which the number of Named Users or Concurrent Users exceeds the Usage Limits.
1.11. “Force Majeure Events” means the events specified in Section 14 of this Agreement.
1.12. “Named Users” means the number of Users specified on the applicable Order Form who may access the Cloud Services.
1.13. “Order Form” means BLUE’s template order form executed by the parties specifying the Cloud Services to be provided by BLUE to Customer. All Order Forms are subject to the terms and conditions of this Agreement.
1.14. “Personal Data” means the name, e-mail address, telephone number and business address of an individual obtained or maintained by BLUE solely for delivering Cloud Services under this Agreement.
1.15. “Professional Services” means consulting or professional services provided by BLUE under an Order Form or statement of work, as applicable. Professionals Services shall be subject to separate terms and conditions and may include implementation and transition services. Cloud Services do not include Professional Services.
1.16. “Proprietary Information” means all information disclosed by either party (the “disclosing party”) to the other (the “receiving party”), 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 circumstance of the disclosure. Customer’s Proprietary Information includes Customer Content. BLUE’s Confidential Information includes all Services, this Agreement, all Order Forms, Documentation and Third Party Content.
1.17. “Services” means, collectively, Cloud Services and Professional Services, if applicable.
1.18. “Scheduled Maintenance” means updates to the Cloud Services that provide additional features and security patches.
1.19. “System” means the hardware and software components, individually or in combination, owned or licensed by BLUE to which BLUE grants Customer access as part of the Cloud Services. References to Cloud Services in this Agreement include the System.
1.20. “Third Party Application” means a web-based or software application provided by You or for You by a third party and which interoperates with the Cloud Services.
1.21. “Third Party Content” means information obtained or derived from third party content providers or publicly available sources and made available to Customer through, within or in relation to the Cloud Services, including text, files, images, graphics, illustrations, and data feeds.
1.22. “Trial Use” means the short-term, limited access to the Cloud Services for evaluation of the Cloud Services, as specified in Section 20.
1.23. “Usage Limits” means the maximum number of Named Users or Concurrent Users, as applicable, that may access, or concurrently access, the Cloud Services, as set forth in an Order Form.
1.24. “User” means an individual authorized by Customer to use the Cloud Services and identified by a unique username within the Cloud Services. A User may only use the Cloud Services with a single session at any one time. A User may include employees, consultants, contractors and agents, as applicable, authorized by Customer or on Customer’s behalf to use the Cloud Services in accordance with this Agreement.
2. TERM.
2.1. Unless otherwise set forth in an Order Form, the term of this Agreement (the “Term”) commences on the date on which Customer accepts this Agreement and continues until the Cloud Services have been provided or terminated pursuant to Section 13 below.
2.2. The Cloud Services Term shall be set forth on an Order Form and is subject to BLUE’s receipt of payment pursuant to Section 4 (except in cases of Trial Uses).
2.3. The minimum Cloud Services Term is one (1) year and shall automatically renew for successive periods of twelve (12) months unless either party delivers written notice of nonrenewal to the other party at least ninety (90) days prior to the expiration of the relevant term, unless otherwise provided in an Order Form.
2.4. The Cloud Services are purchased as subscriptions. Additional subscriptions may be purchased during a Cloud Services Term, on a prorated basis and at BLUE’s then current rates, and any added subscriptions will terminate on the same date as the underlying subscriptions, unless otherwise specified in an Order Form.
3. THE CLOUD SERVICES.
3.1. For the duration of the Cloud Services Term and subject to Customer’s payment obligations, Customer has the right to use the Cloud Services for Customer’s internal business operations only and, in all cases, subject to this Agreement, applicable Order Forms and the Documentation. The Cloud Services are provided to Customer on a shared multi-tenant System, unless otherwise specified in an Order Form.
3.2. The Cloud Services may only be accessed by Users subject to Usage Limits set forth on an Order Form. BLUE shall have the right to review Customer’s use of the Cloud Services from time to time as is reasonably necessary for BLUE to ensure compliance with the terms of this Agreement. In the event of Excess Use, Customer shall be required to pay for any Excess Use at BLUE’s then current rates.
3.3. Nothing in this Agreement restricts BLUE from making changes or updates to the Cloud Services during the Cloud Services Term to reflect changes in technology, industry practices, patterns of system use and availability of Third Party Content, provided that any such changes will not result in a material reduction in the level of performance or availability of the Cloud Services. Such changes or updates may include changes to BLUE’s backend infrastructure, security, technical configurations and application features.
3.4. BLUE shall use commercially reasonable efforts to enable Customer to access the Cloud Services 24 hours a day, 7 days a week, 365 days a year with 99% average uptime availability, except for Scheduled Maintenance or unavailability caused by Force Majeure Events.
3.5. BLUE will provide technical support for the Cloud Services during BLUE’s standard business hours (Monday through Friday, 8am to 6pm U.S. Central Time, except on U.S. holidays). Support will be provided directly to Customer’s designated representative identified on the Order Form, in accordance with BLUE’s technical support process. Support will be provided in English.
3.6. BLUE will provide Customer with the amount of digital asset storage set forth in an Order Form. Additional use of storage is prohibited unless purchased in an Order Form.
3.7. Customer agrees that it is not executing an Order Form under this Agreement contingent on the availability of any future functionality, programs or updates of the Cloud Services, except as specified in an Order Form.
4. PAYMENT OBLIGATIONS.
4.1. All Cloud Services provided hereunder shall be paid in advance at the rates and other terms set forth in an applicable Order Form. Fees payable to BLUE are due promptly following execution of the Order Form but no later than thirty (30) days from the invoice date. All payments made to BLUE will be free of any deduction, set-off, counterclaim or withholding whatsoever and shall be non-refundable except as provided in this Agreement or an Order Form.
4.2. Unless otherwise agreed, BLUE reserves the right to adjust or increase its rates every calendar year by notifying Customer of the same at least 120 days prior to the implementation of the new rates. If Customer does not agree with the new rates, Customer may terminate this Agreement by providing BLUE with a notice of non‐renewal in accordance with Section 2.3.
4.3. Customer is responsible for payment of all sales, use, value-added and similar taxes and surcharges lawfully levied against or upon the Cloud Services, excluding taxes based on BLUE’s net income or for which Customer has provided a valid exemption certificate.
4.4. If there is a good faith dispute regarding a portion of an invoice, Customer will provide notice and detail of the dispute prior to the invoice due date, and will pay the undisputed portion as provided in this Agreement. Upon resolution of the dispute, any disputed amounts owed BLUE will be paid promptly by Customer.
4.5. Without limiting BLUE’s rights or remedies, BLUE reserves the right to charge interest on overdue accounts at the rate of 1.5% of the outstanding balance per month or at the maximum rate allowed by law. If Customer fails to make any payment when due and does not correct such failure within thirty (30) days of written notice from BLUE, BLUE, without limiting any of its other rights and remedies, may suspend delivery of the Services until past due payments are made in full.
5. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS.
5.1. Customer will (a) be responsible for Users’ compliance with this Agreement (including Usage Limits), the Documentation and applicable Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Content and the means by which Customer acquired Customer Content, (c) use commercially reasonable efforts to prevent unauthorized use of the Cloud Services, and notify BLUE promptly of any unauthorized use or access of the Cloud Services, (d) use Cloud Services only in accordance with this Agreement, the Documentation, applicable Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Third Party Content or Third Party Application with which Customer uses the Cloud Services.
5.2. Customer may not, nor may Customer permit any third party to, loan, lease, distribute, transfer or make available the Cloud Services to any third party, whether, with or without the use of Customer’s access credentials (other than the Users), nor modify or remove any proprietary rights notices in Cloud Services, decompile, disassemble, reverse engineer or otherwise attempt to create the source code for the Cloud Services. Except as necessary for the use of Cloud Services, no downloading, copying or distribution of the Cloud Services, in whole or in part, is permitted. The Cloud Services shall be accessed only by Users.
5.3. Customer represents, warrants and covenants that the Customer Content does not and will not contain any matter that is obscene, defamatory or illegal or that infringes the intellectual property rights of any third party.
6. INTELLECTUAL PROPERTY.
6.1. Subject to the limited rights granted under this Agreement, BLUE, its licensors and Third Party Content providers reserve all rights, title and interest, including all related intellectual property rights, in and to the Cloud Services provided for use hereunder, and created in the provision of BLUE’s obligations hereunder including any scheduled maintenance or technical support. No rights are granted under this Agreement except as expressly set forth herein.
6.2. Customer shall have the right to use the Cloud Services for the scope and duration of the Cloud Services stated in an Order Form. Except as set forth in an applicable Order Form and/or terminated pursuant to Section 13 below, Customer’s right to use the Cloud Services shall terminate at the end of the Cloud Services Term.
6.3. Customer shall retain exclusive ownership of all right, title and interest in and to all Customer Content.
6.4. During the duration of the Cloud Services Term, Customer grants BLUE the right to use, process and transmit, in accordance with this Agreement and the applicable Order Form, Customer Content and Customer proprietary information necessary for the performance of the Services, and Customer’s name or company logo for use in BLUE’s marketing materials provided such use is in strict conformance with the Customer’s written standards.
7. CONFIDENTIALITY.
7.1. Proprietary Information may be used by the parties to this Agreement only to the extent required to perform the Cloud Services, and will not be used for any other purpose without the express prior written consent of the disclosing party, to be given or withheld in the disclosing party’s absolute discretion. Each party further agrees that it will not use any Proprietary Information of the other for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation, the export control laws of the United States.
7.2. Each party agrees to maintain all Proprietary Information in confidence and, except as specifically permitted herein, not to disclose Proprietary Information of the other to any third party without the express prior written consent of the disclosing party, to be given or withheld in the disclosing party’s absolute discretion.
7.3. Each party agrees to disclose Proprietary Information only to those of its employees, agents, consultants, contractors or other third party who are directly involved in the performance of its obligations under this Agreement or an Order Form and have a need to access such Proprietary Information in connection therewith, provided that the party who disclosed Proprietary Information as aforesaid will remain responsible for any breach of the provisions of this Agreement by such individual or entity.
7.4. Notwithstanding the foregoing, Proprietary Information shall not include information that: (a) is now, or hereafter becomes, generally known or available through no violation of this Agreement; (b) is known by the receiving party, without restriction on use or disclosure, at the time of receiving such information; (c) is hereafter furnished to the receiving party by a third party, as a matter of legal right and without restriction on disclosure; (d) is independently developed by the receiving party without reference to any Proprietary Information of the disclosing party; or (e) is required to be disclosed by applicable law, rule, regulation or court order.
7.5. BLUE and Customer acknowledge that a breach of this Section 7 may result in serious and irreparable harm to the disclosing party for which there is no adequate remedy at law. In the event of such a breach, the disclosing party shall be entitled to seek any temporary or permanent injunctive or other equitable relief in addition to any monetary damages hereunder.
7.6. BLUE has not agreed to and does not agree to treat as confidential any industry engagement or suggestion or idea provided by Customer (“Feedback”), and nothing in this Agreement restricts BLUE’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation. Feedback does not include Customer Proprietary Information.
8. DATA PROTECTION.
8.1. BLUE shall maintain security practices in accordance with general industry standards designed to prevent any unauthorized compromise of the Customer Content. Such security practices may include (a) firewall and antivirus software, (b) the maintenance of operating systems and other applications with up-to-date virus definitions and security patches, (c) access controls (and changes thereto) for new, current and former BLUE users of the Cloud Services, (d) password parameters and/or (e) access controls for updating directories, files and databases. BLUE maintains encryption for all transmissions to or from the hosting facilities environment.
8.2. Customer shall be responsible for authorizing and approving all access to the Cloud Services for its Users and shall be solely responsible for ensuring the security and confidentiality of all usernames and passwords. Customer shall promptly notify BLUE of any suspected theft, loss or fraudulent use of such usernames or passwords. Customer is responsible for all actions and access to the Cloud Services and Customer Content effected through use of any username, and any transactions effected under a username will be deemed to have been performed by Customer. BLUE shall have no liability for any unauthorized access to or use of the Cloud Services or for any alteration, theft or destruction of any content, including Customer Content, accessible through use of the Cloud Services to the extent attributable to use of the Cloud Services.
9. PERSONAL INFORMATION.
9.1. Except for Personal Data for which Customer has procured all necessary consent from the owners thereof, Customer shall not, and shall not allow others to, include in any Customer Content or otherwise store in or upload to the Cloud Services, and BLUE’s obligations under this Agreement shall not extend to, any information that discloses information about individuals that is protected by law or regulation, including but not limited to Social Security numbers, credit information, or health information or any information that is protected under the Gramm-Leach-Bliley Financial Modernization Act of 1999 (GLB Act), the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH) or any regulations promulgated thereunder.
9.2. BLUE shall (a) ensure that all Personal Data collected by BLUE is used only to perform its obligations under the Agreement and as specifically permitted by the Agreement, or as otherwise instructed in writing from time to time by Customer, and (b) ensure that Personal Data is not disclosed or transferred to any third party without the prior written permission of Customer, except (i) as specifically stated in the Agreement, or (ii) where such disclosure or transfer is required by any applicable law, regulation or order of court or supervisory authority, in which case BLUE shall, wherever possible, notify Customer promptly in writing prior to complying with any such request for disclosure or transfer, and shall comply with all reasonable directions of Customer with respect to such disclosure or transfer.
9.3. The obligations set forth in Section 9.2 apply to BLUE solely to the extent that Customer or a BLUE employee, agent or contractor acting on behalf of, at the direction of, or with the consent of, a Customer employee, agent or contractor or any other person acting on behalf of Customer, introduces Personal Data into the Cloud Services.
10. WARRANTIES.
10.1. BLUE warrants that the Cloud Services will (a) operate in a workmanlike and professional manner in accordance with industry standards and (b) perform materially in accordance with this Agreement, applicable Order Forms and the Documentation. If the Cloud Services were not performed as warranted, Customer must promptly provide written notice to BLUE that describes the deficiency in the Cloud Services.
10.2. Blue does not warrant that (a) the Cloud Services will be performed completely error-free or uninterrupted, or that BLUE will correct all services errors, (b) the Cloud Services will operate in combination with Customer Content or Customer’s applications, or with any other hardware, software, systems or data not provided by BLUE, and (c) the Cloud Services will meet Customer’s requirements, specifications or expectations. Customer acknowledges that BLUE does not control the transfer of data over communications facilities, including the internet, and that the Cloud Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. BLUE is not responsible for any delays, delivery failures, or other damage resulting from such problems.
10.3. BLUE does not make any representation or warranty regarding the reliability, accuracy, completeness, correctness, or usefulness of, or the interoperability or performance with, Third Party Content or Third Party Applications, and disclaims all liabilities arising therefrom.
10.4. Customer accepts full responsibility for any use or storage of Customer Content in connection with the Cloud Services, including any infringement of a third party’s rights resulting from such use or storage.
10.5. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10 OR IN ANY ORDER FORM, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 10, THE CLOUD SERVICES AND OTHER MATERIALS OR INFORMATION ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING OR APPLICATION PROVIDERS.
10.6. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR CLOUD SERVICES, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.7. For any breach of a warranty above, Customer’s exclusive remedies are those described in Section 13 below.
11. INDEMNITY.
11.1. BLUE shall indemnify, defend or hold Customer harmless against any damages awarded against Customer as a result of any claim that the Cloud Services in the form hosted by BLUE as part of the Cloud Services for Customer infringes any intellectual property rights of any third party; provided, that Customer promptly notifies BLUE of the claim in writing, cooperates with BLUE in the defense, and allows BLUE sole control of the defense or settlement of the claim; provided, further, in the event such an infringement claim is made or is likely, BLUE, at its sole discretion, shall have the right to modify the Cloud Services, to replace the Cloud Services with a functional equivalent, or otherwise to procure the rights for Customer to continue accessing the allegedly infringing Cloud Services. BLUE shall also have the right to terminate Customer’s access to the Cloud Services in which case BLUE shall refund any prepaid or unused Cloud Services fees covering the remainder of the Cloud Services Term. BLUE shall have no liability hereunder in the event any such claim arises out of (a) the use of the Cloud Services by Customer or the Users, other than in accordance with the terms of this Agreement or the Documentation, or (b) Customer Content, Third Party Content, or Third Party Applications. This Section 11.1 contains Customer’s exclusive remedies and BLUE’s sole liability for intellectual property infringement claims in this Section 11.
11.2. Customer shall indemnify, defend and hold BLUE and its Affiliates harmless against any losses, damages, costs, fees (including reasonable legal fees) and expenses incurred by and/or awarded against BLUE as a result of or in connection with any claim that (a) any of the Customer Content infringe any intellectual property rights of any third party, (b) any of the Customer Content contain any matter that is obscene, defamatory or illegal or otherwise prohibited under this Agreement, or (c) arises from Customer’s use of the Services or Customer Content in violation of the Agreement, the Documentation, Order Form or applicable law.
12. LIMITATION OF LIABILITY.
12.1. To the extent not prohibited by law, in no event shall BLUE’s aggregate liability hereunder exceed the total amount of fees paid by Customer hereunder for the Cloud Services under which the claim arose in the twelve-month period preceding the date such claim arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability.
12.2. To the extent not prohibited by law, in no event will either party be liable for any indirect, special or consequential damages and/or lost revenues or profits (excluding fees payable under the Agreement), lost data, whether in action in contract or tort and regardless of theory of liability, even if advised of the possibility of such damages, except in cases of breach of Sections 6 or 7.
12.3. The parties acknowledge that the limitations set forth in this Section 12 are integral to the amount of consideration levied in connection with the Cloud Services and that, were BLUE to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
13. TERMINATION.
13.1. Either party may terminate this Agreement or any Order Form, upon material breach by the other party which breach has not been cured within thirty (30) days of receipt of written notice reasonably identifying and describing such breach.
13.2. Upon termination of this Agreement or any Order Form for any reason, Customer shall immediately pay all fees and other amounts accrued hereunder prior to such termination, as well as all sums remaining unpaid for the Cloud Services ordered under this Agreement plus applicable taxes and expenses.
13.3. Upon termination of the Agreement by Customer under Section 13.1, BLUE shall refund Customer for any prepaid fees for unused Cloud Services, prorated to the effective date of termination.
13.4. Customer may download Customer Content at any time prior to the end of the Cloud Services Term. After the Cloud Services Term, and except as may be required by law, BLUE will delete or otherwise render inaccessible all Customer Content that remain in the Cloud Services.
14. FORCE MAJEURE.
No delay, failure or default (other than a failure to pay fees or make payments when due) will constitute a breach of this Agreement to the extent arising, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of a party, including but not limited to acts of God, fire, explosion, accident, strike, labor slowdowns or interruption, internet service provider failure, denial of service, delay or failure of contractors or common carriers, civil commotion, war, acts of terrorism, embargo or governmental acts or regulations (individually or collectively, “Force Majeure Events”).
15. TECHNOLOGY EXPORT.
Customer shall not, and shall not permit any third party to, access or use the Cloud Services in violation of this Agreement, any U.S. law or regulation, or export any Cloud Services provided by BLUE except in compliance with U.S. laws and regulations.
16. GOVERNING LAW.
This Agreement is governed by the laws of the State of Illinois, United States of America, as such laws are applied to contracts entered into and to be performed within such state and country, without regard to any conflicts of laws provisions. Customer agrees to submit to the exclusive jurisdiction of, and venue in the courts of Cook County in Illinois in any dispute arising out of or related to this Agreement including without limitation tort claims.
17. NOTICES.
BLUE may send notices pursuant to this Agreement to Customer’s email contact provided by Customer in an Order Form or otherwise. Notices sent by Customer pursuant to this Agreement to BLUE shall be effective on the date received if sent by overnight courier service that confirms delivery in writing, and addressed as follows: ATTN: BLUE Legal Department, 8430 W Bryn Mawr Ave #1100, Chicago, IL 60631 with a copy to salesops@bluesoftware.com.
18. ASSIGNMENT.
Customer may not assign this Agreement or any rights or obligations hereunder, including by sale of assets, merger, consolidation, corporate reorganization or otherwise, without the express written consent of BLUE; provided, however, that Customer may assign the Agreement, together will all Order Forms to an Affiliate. Subject to the foregoing restriction, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.
19. MISCELLANEOUS.
19.1. Relationship. The parties will perform their obligations under this Agreement as independent contractors and nothing contained in this Agreement will be construed to be inconsistent with such relationship or status. This Agreement will not create an employment or agency relationship or a joint venture or partnership of any kind. There are no third-party beneficiaries under this Agreement.
19.2. Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of the other provisions of this Agreement, which provisions will remain in full force and effect.
19.3. Entire Agreement. This Agreement, together with the Order Form(s) and statement(s) of work executed subject to this Agreement, sets forth all covenants, promises, agreements, warranties, representations, conditions and understandings between the parties relating to the subject matter contained herein and supersedes and terminates all prior agreements and understandings between the parties with respect thereto.
19.4. Conflicts. In the event of a conflict between this Agreement and any Customer policy or terms, the terms of this Agreement will govern.
19.5. Waiver. No waiver of any provision of this Agreement, whether by conduct or otherwise, in any one or more instances will be deemed to be or be construed as a further or continuing waiver of any such provision, or of any other provision or condition, of this Agreement.
19.6. Survival. Any obligations and duties that by their nature extend beyond the expiration or termination of this Agreement shall survive any expiration or termination of this Agreement.
19.7. Amendment. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provision of this Section 19.7, BLUE may revise its posted policies at any time by posting a new version and such new versions will become effective on the date posted.
19.8. Marketing. Customer may be referred to as BLUE’s customer of the Cloud Services in sales presentations and other marketing activities.
20. TRIAL USE.
20.1. BLUE may make a Trial Use available to Customer to evaluate the Cloud Services for Customer’s internal business purposes.
20.2. The Cloud Services Term for Trial Use will commence when Customer is given access to the Cloud Services and will end on the earlier of (a) the completion of the Trial Use period communicated to Customer by BLUE, (b) the commencement of a Cloud Services Term through execution of an Order Form (e.g., the start date of any paid subscription of the Cloud Services), or (c) the termination of the Trial Use by BLUE in its sole discretion.
20.3. Except as set forth herein, Customer’s Trial Use shall be subject to all applicable provisions of this Agreement. Customer will have access to limited technical support for the Trial Use.
20.4. ANY CUSTOMER CONTENT FROM THE TRIAL USE WILL BE PERMANENTLY DELETED UNLESS CUSTOMER EXPORTS THE CUSTOMER CONTENT, OR EXECUTES AN ORDER FORM TO PURCHASE A SUBSCRIPTION TO THE CLOUD SERVICES, BEFORE THE END OF THE CLOUD SERVICES TERM FOR TRIAL USE.
20.5. CLOUD SERVICES USED FOR TRIAL USE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY BY BLUE OR LIABILITY ON BLUE’S BEHALF, NOTWITHSTANDING ANY TERM OF THIS AGREEMENT INCLUDING SECTION 10 HEREOF.
BLUE Software CSA: Essentials & Premier (rev. Jun 2017)