Blu Bor LLC
This Support Service Agreement is made effective as of January 01, 2021, by and between COMPANY (“Client”) of _______________________________, and Blu Bor LLC (“Blu Bor”) of 1028 W Storey Ave, Meridian, Idaho 83646.
1. DESCRIPTION OF SERVICES.
Beginning on January 01, 2021, Blu Bor will provide to Client the following services (collectively, the “Services”):
Services Descriptions are published on the product description exhibits available at https://blubor.com/shop/ (“Documentation”) and vary based on the Order Form Client submits to Blu Bor during the purchase process. Subject to the terms and conditions of this Agreement, Blu Bor shall use commercially reasonable efforts to make the Services available Monday-Friday, 9 AM to 5 PM (“Operating Hours”), except for: (i) planned downtime; and (ii) unavailability caused by circumstances beyond Blu Bor’s control, including but not limited to acts of God, internet service provider failures or delays, and denial of service or other cyberattacks.
Support requests that are submitted outside of Blu Bor’s Operating Hours are processed on the following business day. Blu Bor reserves the right to prioritize support requests based on factors including, but not limited to, Client service level, time constraints, cost, and complexity of support requests.
Support requests are subject to the Response Time detailed in the Documentation for Service. Response Time is measured in hours from beginning of day to end of day of Blu Bor Operating Hours.
Planned Maintenance consists of the use of Support Services outside of Blu Bor Operating Hours that has been previously scheduled and approved in advance during Blu Bor Operating Hours. Planned maintenance is billed at the normal hourly rate.
Client may submit Support requests that must be processed on the same business day but are submitted outside of Blu Bor’s Operating Hours. Such Support requests must be definitively labeled as “Urgent” by utilizing one of the following methods:
- Sending an email to email@example.com with “URGENT: <issue description>” in the Subject line.
- Setting the “Priority” field of the Blu Bor Task Submission or Support Request forms to “Urgent” upon submission of such forms.
Support requests that are not submitted following the previously noted methods will not be marked as emergency support requests and may instead be assigned a normal priority by Blu Bor’s online support system, employees, agents, or representatives.
Emergency Support requests are billed at twice the normal hourly rate.
2. ACCESS TO DATA AND COMPUTER.
On requests, Service Recipient agrees to provide Service Provider with printouts of the Software or of data in storage that exhibits evidence of a programming error. Recipient further agrees to provide Service Provider with access to Service Recipient’s computer and sufficient computer time to enable Service Provider to duplicate the problem, determine that it results from the Software, and, after corrective action or replacement has taken place, determine that the problem has been alleviated.
3. PROPRIETARY RIGHTS.
Service Recipient acknowledges and agrees that corrected or replacement Software and associated documentation remain the property of CLIENT and constitute a trade secret of CLIENT. Service Recipient further agrees that corrected or replacement Software and associated documentation shall be delivered to Service Recipient only after Service Recipient executes a subsequent license Agreement with CLIENT governing its use, unless Service Provider, at its option, waives this requirement for the execution of a subsequent license Agreement.
4. MODIFICATIONS EXCLUDED.
Service Provider shall not be obligated to provide support services pursuant to this Contract with respect to any modifications of the Software made by Service Recipient or to any computer program incorporating all or any part of the Software. If Service Provider corrects defects or problems attributable to errors made by Service Recipient or corrections or modifications made by Service Recipient, Service Recipient agrees to pay Service Provider the Service Provider’s then current standard rates for time and material.
In consideration of the services to be performed by the Service Provider, the Client agrees to compensate the Service Provider for the services rendered as follows:
Payment shall be made to Blu Bor LLC, Meridian, Idaho 83646. Service Provider’s fees for the services specified in Paragraph 2, above, and for any additional services, will be charged at the respective rate published on the product description exhibits available at https://blubor.com/shop/ (“Documentation”).
Any additional services not specified in the Documentation will be charged to Client on an hourly rate basis at Service Provider’s standard hourly rate as per the Documentation for the respective Services subscribed to by Client.
Service Recipient agrees to pay Service Provider for all travel and other incidental expenses, including meals, telephone charges, and shipping costs, incurred in connection with Service Provider’s performance of its duties under this Contract.
In addition to any other right or remedy provided by law, if Client fails to pay for the Services when due, Blu Bor has the option to treat such failure to pay as a material breach of this Contract and may cancel this Contract and/or seek legal remedies.
6. COSTS AND EXPENSES.
In addition to the fees specified above, Client will reimburse Service Provider for any incidental costs and expenses Service Provider incurs in performing services for Client under this Contract, including, but not limited to, secretarial and similar charges, telephone calls, photocopying and related expenses, shipping and mailing charges, document filing fees, other government fees, notary fees, and similar expenses. Costs and expenses will be billed to Client for the exact amount on a monthly basis and will be due and payable within 15 days thereafter.
Service Recipient shall be responsible for all sales or use taxes or any other taxes, fees, or duties imposed by federal, state, local, or other governments or governmental entities on or with respect to the Services rendered or property provided by Service Provider pursuant to this Contract.
This Contract may be terminated by either party upon 30 days prior written notice to the other party.
Blu Bor, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Blu Bor, or divulge, disclose, or communicate in any manner, any information that is proprietary to Client. Blu Bor and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Contract.
Upon termination of this Contract, Blu Bor will return to Client all records, notes, documentation and other items that were used, created, or controlled by Blu Bor during the term of this Contract.
10. GENERAL WARRANTY.
Blu Bor shall provide its services and meet its obligations under this Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Blu Bor’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Blu Bor on similar projects. Service Provider shall not be liable for any delay in performance directly or indirectly resulting from acts of Service Recipient, its agents, employees, or subcontractors.
The occurrence of any of the following shall constitute a material default under this Contract:
- The failure to make a required payment when due.
- The insolvency or bankruptcy of either party.
- The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
- The failure to make available or deliver the Services in the time and manner provided for in this Contract.
- The occurrence of a default on the part of the Service Recipient of the Contract pursuant to which Service Recipient obtained the Software.
In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Contract.
13. FORCE MAJEURE.
If the performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
Any controversies or disputes arising out of or relating to this Contract shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Contract. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Contract or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgement may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Contract.
15. ENTIRE AGREEMENT.
This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.
Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
17. WAIVER OF CONTRACTUAL RIGHT.
The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Contract.
Neither party may assign or transfer this Contract without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.
This Agreement shall be signed on behalf of Client by CLIENT REPRESENTATIVE, CEO and on behalf of Blu Bor by Christopher D. Pendleton, CEO and effective as of the date first above written.
By: _______________________________ Date: _____________________
Blu Bor LLC
By: _______________________________ Date: _____________________
Christopher D. Pendleton