SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, OutoftheBlue will use commercially reasonable efforts to provide the Services to Customer. The Services are subject to modification from time to time at OutoftheBlue’s sole discretion, for any purpose deemed appropriate by OutoftheBlue. OutoftheBlue will use reasonable efforts to give Customer prior written notice of any such modification.
1.2 OutoftheBlue will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, OutoftheBlue reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to OutoftheBlue.
1.3 Subject to the terms hereof, OutoftheBlue will provide reasonable support to Customer for the Services from Monday through Friday during OutoftheBlue’s normal business hours.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; or (v) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy (including, without limitation, in Europe), intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation). Specifically, but without limitation, Customer will not use the Services for any marketing purpose, including without limitation, to send marketing text messages, and will comply with the notice, “opt-out” and other provisions of the following California laws: California Business and Professions Code Sections 17538.4 and 17538.45.
2.2 Customer will cooperate with OutoftheBlue in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as OutoftheBlue may reasonably request. Customer will also cooperate with OutoftheBlue in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.3 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customers may change the individual designated as Primary Contact at any time by providing written notice to OutoftheBlue.
2.4 Customer hereby agrees to indemnify and hold harmless OutoftheBlue against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although OutoftheBlue has no obligation to monitor the content provided by Customer or Customer’s use of the Services, OutoftheBlue may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
CONFIDENTIALITY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, OutoftheBlue may aggregate or anonymize data (including from or relating to the Content) and use such aggregated or anonymized data to evaluate and improve the Services and otherwise for its business purposes.
3.3 Customer acknowledges that OutoftheBlue does not wish to receive any Proprietary Information from Customer that is not necessary for OutoftheBlue to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, OutoftheBlue may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
INTELLECTUAL PROPERTY RIGHTS
Except as expressly set forth herein, OutoftheBlue alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to OutoftheBlue. Customer will not copy, distribute, reproduce, or use any of the foregoing except as expressly permitted under this Agreement. The customer is hereby granted a non-exclusive, non-transferable, revocable right to use the Resulting Data for its internal analysis purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
OutoftheBlue will obtain and process certain content/data provided by or on behalf of Customer (“Content”) only to perform its obligations under this Agreement or as otherwise allowed under this Agreement. Notwithstanding anything else, unless expressly approved by OutoftheBlue in advance in writing, Customer will not share, upload, submit, or otherwise provide through the Services or otherwise any personally identifiable information, personal information, or personal data as defined under any data privacy laws. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title, and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If OutoftheBlue receives any notice or claims that any Content, or activities hereunder with respect to any Content, may infringe or violate the rights of a third party (a “Claim”), OutoftheBlue may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify OutoftheBlue from all liability, damages, settlements, attorney fees, and other costs and expenses in connection with any such Claim, as incurred.
PAYMENT OF FEES
5.1 Customer will pay OutoftheBlue the applicable fees as set forth on the Order Form (the “Fees”). If Customer use of the Services exceeds the Service Capacity (if any) set forth on the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, the Customer will pay OutoftheBlue for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within fifteen (15) days of invoice and are nonrefundable.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state provincial, and local use, sales, value-added, property, and similar taxes, if any. The customer agrees to pay such taxes (excluding US taxes based on OutoftheBlue’s net income) unless the Customer has provided OutoftheBlue with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
TERMINATION
6.1 Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the Order Form.
6.2 In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership, or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
6.3 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
CLIENT SOFTWARE SECURITY
OutoftheBlue represents and warrants that it will not knowingly include, in any OutoftheBlue software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, OutoftheBlue fails to comply with the warranty in this Section, Customer may promptly notify OutoftheBlue in writing of any such noncompliance. OutoftheBlue will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
WARRANTY DISCLAIMER
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND OUTOFTHEBLUE PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. OUTOFTHEBLUE (AND ITS AGENTS, AFFILIATES, LICENSORS, AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
IN NO EVENT WILL OUTOFTHEBLUE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS, OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF OUTOFTHEBLUE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF OUTOFTHEBLUE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO OUTOFTHEBLUE HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is a representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by OutoftheBlue are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by Customer except with OutoftheBlue’s prior written consent. OutoftheBlue may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind OutoftheBlue in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. OutoftheBlue will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Mateo County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. The customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by OutoftheBlue. OutoftheBlue is permitted to disclose that Customer is one of its customers to any third party at its sole discretion.