Blu Bor LLC
These Terms of Service govern a customer’s acquisition and use of Blu Bor LLC (together with its Affiliates as defined herein, “Blu Bor”) software and/or services. By mutually executing an Order Form with Blu Bor that references these Terms of Service or by using the Blu Bor website, a customer agrees to these Terms of Service and the applicable Order Form (together, the “Agreement”). Customer’s represent that the individual executing the Order Form is entering into this Agreement on behalf of the entity identified on the Order Form (“Customer”) and that the individual executing the Order Form has authority to bind the Customer to this Agreement.
Blu Bor’s direct competitors are prohibited from accessing the software and/or services provided by Blu Bor, except with Blu Bor’s prior express written consent. In addition, the software and services may not be accessed for the exclusive purpose of monitoring performance, or functionality, or for any other benchmarking or competitive purposes.
These Terms of Service were last updated January 1, 2021. Blu Bor reserves the right to periodically modify these Terms of Service upon written notice to Customer, and such modification will automatically become effective in the next service term. Archived versions of the Terms of Service are available here.
1. Access Grant.
1.1 Provision of Access.
Subject to all the terms and conditions of this Agreement, Blu Bor will provide Customer with a non-exclusive, non-transferable, non-sublicensable right to access to the generally available software services and support described in the applicable Order Form (the “Services”) during the Service Term identified in the Order Form (“Service Term”), through the Internet, solely for Customer’s internal use. The Services are accepted upon delivery and are in accordance with the product description exhibits located at www.blubor.com/shop (“Documentation”). Customer may use the Services for the benefit of any entity controlling, controlled by, or under common control with a party hereto, where “control” means the ownership of more than fifty percent (50%) of the voting securities in such entity (“Affiliate”), described in the applicable Order Form. This Agreement and the access provided hereunder are non-transferable, except as expressly provided herein. Blu Bor retains all rights not expressly granted to the Customer pursuant to this Agreement.
1.2 Customer Use of the Services.
Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, Documentation or data related to the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services; use the Services for timesharing or service bureau purposes or for any purpose other than its own benefit; rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to any third party; remove any proprietary notices from the Services or Documentation; use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person; or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations, including but not limited to any European privacy, intellectual property, consumer and child protection, obscenity or defamation laws. Customer will cooperate with Blu Bor 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 Blu Bor may reasonably request. Customer will also cooperate with Blu Bor in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Blu Bor.
1.3 Modification of Services.
Blu Bor will not materially decrease the overall functionality of the Services.
1.4 Future Functionality.
Customer agrees that Customer’s subscription to the Service and acceptance of this Agreement are not contingent on the delivery of any future functionality or features.
2. Blu Bor Responsibilities.
2.1 Service Levels.
Blu Bor will provide the Services identified in the applicable Order Form as set forth in the product description exhibits located at www.blubor.com/shop (“Documentation”). 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, 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 attacks.
2.2 Data Protection and Security.
Blu Bor will implement and maintain reasonable administrative, physical and technical safeguards that are designed to prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any of Customer’s data, including any applicant or employee data furnished by Customer (“Customer Data”) as may be held or accessed by Blu Bor.
2.2.2. Access to Systems.
Access, if any, to Customer’s computer, telecommunication or other information systems (“Systems”) is hereby granted solely to provide the Services described in this Agreement and is limited to those specific systems, time periods, and personnel as are reasonably needed to effect the purpose of this Agreement. Access is subject to business control and information protection policies, standards, and guidelines as may be provided by Customer. Without limiting the foregoing, Blu Bor warrants to Customer that it has adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Customer’s systems. For the avoidance of doubt, access to systems by Blu Bor will require, in each instance, provisioning of access by Customer and only to the extent that Customer determines such access is required.
2.2.3 Access to Account.
Customer gives Blu Bor permission to view data and take actions within Customer’s Blu Bor account for the purpose of administering, delivering and improving the Services. Customer may request Blu Bor to perform actions within Customer’s Blu Bor account, and in doing so hereby grants Blu Bor the limited permission to view, create, and modify Customer Data in Customer’s instance of the Services account to fulfill the request, including but not limited to candidate records, reports, and account configurations. While not limited to the following, additional examples of the permissions encompassed in this section are: viewing or acting within an employee’s Blu Bor account to reproduce an issue or bug, creating or uploading content in the onboarding process, merging sources or tags, exporting data to produce a custom report, etc.
To the extent Blu Bor processes Customer Data subject to the EU General Data Protection Regulation (“GDPR”), the terms of the Blu Bor GDPR Data Processing Addendum located at https://blubor.com/data-processing-agreement/ (“DPA”), which is hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
Blu Bor will provide the Services and process any Customer Data as a for-profit corporation solely on behalf of Customer in accordance with the Agreement. Blu Bor will not retain, use, sell, or disclose Customer Data for any other purpose other than for the specific purpose of providing the Services under the Agreement, except as otherwise permitted by law.
2.2.6 Changes in Data Protection Laws.
If any variation to the Agreement between the Parties is required to maintain compliance with changes to applicable data protection laws, the Parties will negotiate necessary variations to this Agreement in good faith to address changes.
3. Customer Responsibilities.
Customer is responsible and liable for all uses of the Service resulting from access provided by Customer.
3.2 Customer Content; Compliance with Laws.
Customer represents, warrants and covenants that Customer and its employees will not produce content or otherwise use the Service in a manner that (i) infringes or violates the intellectual property rights or property rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or, (iv) contains a virus or other harmful computer file, or program. Further, Customer represents, warrants and covenants that Customer, in performance of its obligations and/or exercise of its rights pursuant to this Agreement, will comply with all applicable laws and regulations. Customer further acknowledges that Customer is responsible for all employee activity in connection with the Services and that fraudulent, abusive, or otherwise illegal activity may be grounds for termination of this Agreement.
4. Fees and Payment.
Customer will pay Blu Bor the applicable fees described in the Order Form (collectively, “Fees”) in accordance with the terms of this Agreement. If Customer believes that Blu Bor has billed Customer incorrectly, Customer must contact Blu Bor no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to firstname.lastname@example.org. In the event Customer payment of undisputed Fees to Blu Bor remains unpaid more than thirty (30) days after an invoice becomes due, or more than ten (10) days after an invoice becomes due for two (2) consecutive payments, all remaining fees due during the Service Term shall become immediately due and payable. Except as expressly set forth in this Agreement, all Fees are non-cancellable and non-refundable.
4.2 Renewal Service Term Fees.
In the event that Customer exceeds any Support Hours Limit identified in an applicable Order Form, upon renewal a prorated increase in fees for the prorated increase in usage will be automatically assessed and applied to the invoice for the subsequent service term (each a “Renewal Service Term”). Fees for each Renewal Term may be increased by Blu Bor no more than once per year to be applied to the Renewal Service Term fees in an amount not to exceed three percent (3%) on a per agreement basis as calculated by dividing the Support Hours Limit by the total Fees for the Services. For the avoidance of doubt, a decrease of Support Hours Limit or Services purchased may result in a larger increase in per unit pricing. Notwithstanding the foregoing, Blu Bor reserves the right to change the Renewal Service Term fees or applicable charges and to institute new charges and fees at the end of any Service Term solely upon thirty (30) days prior notice to Customer. Without limiting the foregoing, any Renewal Service Term in which subscription volume or products for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior Term’s per-unit pricing.
All Fees will be invoiced annually upon the effective date of the applicable Order Form, unless otherwise identified in the Order Form. Unless otherwise specified in an Order Form, Blu Bor will bill through an invoice and full payment for invoices issued must be received by Blu Bor thirty (30) days after the electronic delivery date of the invoice. In the event of an Order Form with a Service Term of more than one year, amounts will be billed in annual installments annually upon the anniversary of the effective date of the Order Form for the duration of the Service Term.
Any credits due to a Customer will be applied on the next invoice against amounts then due. If there are no future invoices expected, Blu Bor will issue a payment to Customer for credits due.
Any amounts payable hereunder are exclusive of, and Customer shall be responsible for all taxes, including general sales tax, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Blu Bor, unless Customer provides to Blu Bor a valid tax-exempt certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Blu Bor on account thereof.
5. Intellectual Property.
5.1 Blu Bor IP.
Except as expressly set forth in this Agreement, Blu Bor will own and retain all right, title and interest in and to (a) the Services, including all software, improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed as part of any Professional Services (as set forth in an Order Form or statement of work mutually executed by both parties hereto that references this Agreement) or support, and (c) all intellectual property rights related to all of the foregoing. This Agreement does not grant Customer (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the Blu Bor trademarks, logos, domain names, or other brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
5.2 Customer Data.
CUSTOMER RETAINS ALL RIGHTS, TITLE AND INTEREST IN ITS CUSTOMER DATA, AND THIS AGREEMENT DOES NOT GRANT BLU BOR ANY RIGHTS TO CUSTOMER DATA OR THE INTELLECTUAL PROPERTY RIGHTS EMBODIED IN CUSTOMER DATA EXCEPT FOR THE LIMITED RIGHTS EXPRESSLY SET FORTH IN THIS AGREEMENT.
5.3 Blind Data.
Notwithstanding anything to the contrary, and subject to applicable laws, Customer authorizes Blu Bor to collect, develop, create, extract, compile, synthesize, analyze and provide statistics, benchmarks, measures and other information based on Customer Data that is: (i) anonymized by removing any personal or other information so the data is in no way attributable to a specific customer or any individual; (ii) combined with the other data; (iii) presented in a way which does not reveal the Customer’s or any individual’s identity; and (iv) not capable of being reidentified.
Notwithstanding anything to the contrary, if Customer or any of its employees or contractors provide Blu Bor with any ideas, suggestion(s), enhancement requests, feedback and/or recommendation(s) regarding the Services, including without limitation, new and/or improved features or functionality relating thereto (”Feedback”), Blu Bor is free to use and disclose such Feedback without any obligation to Customer or such employees or contractors and to incorporate into any existing or future products or features.
6. Confidential Information.
6.1 Definition of Confidential Information.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“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 of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Blu Bor includes the Services, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes
business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party
prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information.
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party o those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Blu Bor may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform Blu Bor’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that.
7.1 General Warranties.
Blu Bor warrants to Customer that Services under this Agreement are provided in compliance with all applicable federal, state and local laws. Blu Bor warrants that the Services will conform to the Documentation and will perform any Professional Services in a professional and workmanlike manner. Blu Bor represents and warrants that (i) it has sufficient right, title and interest in the Services in order to provide the Services pursuant to the terms and conditions of this Agreement, and (ii) its execution and performance of this Agreement will not violate or conflict with any obligation it has to any third party.
7.2 Third Party Services.
The foregoing warranty does not apply to, and Blu Bor strictly disclaims all warranties with respect to connections and/or links to non-embedded services, products and professional services that are provided and sold to Customer by third parties which interoperate with or are used in connection with the Service, including, without limitation, via application programming interfaces (collectively, “Third Party Services”). Any exchange of data or other interaction between Customer and Third Party Services is solely between customer and the operator of such Third Party Services, and is governed by customer’s agreement with such Third Party Services provider.
7.3 Warranty Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BLU BOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BLU BOR NOR ITS LICENSORS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CUSTOMER ACKNOWLEDGES THAT BLU BOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. BLU BOR IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, APPROPRIATENESS, OR LEGALITY OF DATA, USER POSTS, OR ANY OTHER INFORMATION POSTED BY A USER.
8. Mutual Indemnification.
8.1 Blu Bor Indemnification.
Blu Bor will indemnify, defend, and hold Customer harmless from and against all third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such third parties pursuant to such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim or allegation that the Services infringe or misappropriate such third party’s patent, trademark, trade secret, copyright, or other
intellectual property rights. Blu Bor’s obligations pursuant to this Section 8.1 will not apply, however, to the extent that such claim is caused by: (i) Customer’s use of the Services other than in accordance with the terms of this Agreement; (ii) Customer’s failure to use or implement corrections or enhancements to the Services made available free of charge to Customer by Blu Bor, (iii) customized portions or components of the Services designed and provided to Customer accordance with Customer specifications, (iv) modification of the Services that have not been performed by or on behalf of Blu Bor, and/or (v) combination of the Services with other products, services, processes or materials not supplied by Blu Bor (including, without limitation, Customer Data).
8.2 Customer Indemnification.
Customer will indemnify, defend, and hold Blu Bor harmless from and against all third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such third parties resulting from such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim or allegation that the Customer Data and/or Customer’s provision thereof to Blu Bor violates such third-party’s patent, trademark,
trade secret, copyright, or other intellectual property or proprietary right(s), or any claim that Customer has violated any applicable law(s), regulation(s), or the rights of any employee or candidate.’
8.3 Indemnification Procedure.
As a condition to the indemnifying party’s obligations pursuant to this Section 7, the indemnified party must: (i) promptly notify the indemnifying party in writing of all indemnifiable claims; (ii) provide the indemnifying party with reasonable assistance to settle or defend such claims, at the indemnifying party’s own expense; and (iii) grant to the indemnifying party the right to control the defense and/or settlement of such claims, at the indemnifying party’s own expense; provided, however, that: (1) the failure to so notify, and/or provide assistance will only relieve the indemnifying party of its obligation to the indemnified party to the extent that the indemnifying party is prejudiced thereby; (2) the indemnifying party will not, without the indemnified party’s consent (such consent not to be unreasonably withheld or delayed), agree to any settlement that: (x) makes any admission of wrongdoing on behalf of the indemnified party; or (y) consents to any injunction against the indemnified party (except an injunction relating solely to the indemnified party’s continued use of any infringing Service); and (3)
subject to the foregoing, the indemnified party will have the right, at its expense, to participate in any indemnifiable claim and to be represented by legal counsel of its choosing, but will have no right to settle a claim without the indemnifying party’s written consent.
8.4 Sole Remedy.
THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND BLU BOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitation of Liability.
9.1 Limitation of Damages.
EXCEPT WITH RESPECT TO BREACHES OF SECTION 6 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 Limitation of Liability.
EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY CLAIMS, SUITS, LIABILITY OR DAMAGES ARISING OUT OF OR BASED UPON THIS AGREEMENT, IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO BLU BOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT.
9.3 Limitation of Claims.
Any claim or cause of action arising out of or related to use of the Service or to the Agreement must be filed within one (1) year after such claim or cause of action arose, or be forever waived.
10. Term and Termination.
This Agreement will remain in full force and effect for the Service Term as specified in the Order Form and will automatically renew for additional one year periods (each a “Renewal Service Term” and collectively, the “Term”), unless either party requests termination in writing at least thirty (30) days prior to the end of the then-current Term. The Service Term identified in each Order Form will commence on the effective date of the Order Form. A termination request by either party will be given via certified mail or via email to respective Party Billing Contact.
Notwithstanding anything to the contrary in this Agreement, Blu Bor may impose limitations on bandwidth usage, and/or temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if Blu Bor reasonably determines that (i) there is a threat to or attack on any of the Services; (ii) Customer’s or any Authorized User’s use of the Services abuses, disrupts or poses a security risk to the Services or to any other customer, integration partner or vendor of
Blu Bor; or (iii) Customer is in breach of its obligation to pay any Fees due under the Agreement (collectively, “Service Suspension(s)”). Blu Bor will provide notice of a Service Suspension arising under Section 10.2(i) or Section 10.2(ii) as soon as reasonably possible. Prior to suspension of service pursuant to sub-Section (iii) above, Blu Bor will provide Customer with notice of non-payment and the amount due (“Non-payment Notice”). Unless the amount has been paid, Blu Bor reserves the right to suspend Customer access to the Services fourteen (14) calendar days after such Non-payment Notice. Blu Bor will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
In addition to any other express termination right set forth in this Agreement: i. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches any material provision of this Agreement, including, without limitation, by Blu Bor, in the event of any breach by Customer of Section 3 above, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or ii. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, and such proceeding is not dismissed within one hundred twenty (120) days of institution; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business without a successor.
10.4 Effect of Expiration or Termination.
Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of and/or access to the Service(s). No expiration or termination will affect Customer’s obligation to pay all Fees that have become due before the effective date of such expiration or termination, or entitle Customer to any refund, except that Customer will be entitled to a refund of unused Fees as of the date of termination to the extent that termination is caused by a material breach of the Agreement by Blu Bor.
Prior to termination, and no more than once during the Term, Blu Bor will make all Customer Data available to Customer for electronic retrieval in .csv format upon request prior to the expiration of the Term solely to the extent that Customer has paid all undisputed then due Fees. After the expiration of the Term, Customer Data will be deleted in accordance with Blu Bor’s data retention policy.
Any terms and conditions of this Agreement that by their nature or otherwise reasonably should survive termination, cancellation or other expiry of this Agreement shall survive any termination, cancellation or other expiry of this Agreement.
11.1 Entire Agreement.
This Agreement constitutes the entire understanding of the parties with respect to the Service and supersedes all previous agreements, statements and understandings from or between the parties regarding the subject matter of this Agreement. This Agreement also supersedes any conflicting language contained in any applicable past or future purchase order regarding the subject matter of this Agreement.
There will be no force or effect to any different terms of any related purchase order provided as part of payment processing, even if signed by the parties after the date hereof. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each Party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived.
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and to:
Customer: (Billing Contact identified in the Order Form)
Blu Bor may use Customer name or logo to identify you as a customer. Any further reference by Blu Bor, including in Blu Bor marketing materials requires the advance written permission of the Customer. Use of Customer’s name and logo will be revocable at any time by Customer.
11.5 Force Majeure.
In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control.
No failure to exercise, or delay in exercising, any rights, powers or remedies arising from this Agreement will operate or be construed as a waiver of the rights of such a party to demand full compliance with the terms of this Agreement. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.
If any provision of this Agreement is declared invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability, the remainder of the agreement will remain valid and enforceable to the fullest extent permitted.
11.8 Dispute Resolution.
11.8.1 Governing Law; Submission to Jurisdiction.
This Agreement is governed by and construed in accordance with the internal laws of the State of Idaho without giving effect to any choice or conflict of law.
In the event of any dispute, claim, question, or disagreement arising
from or relating to this Agreement, the parties will use their best efforts to settle the dispute. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.
11.8.3 Binding Arbitration.
If the parties do not reach such solution within a period of sixty (60) days, then, upon notice by either party to the other, all disputes shall be finally settled by binding arbitration taking place in Meridian, Idaho. Each of the parties to this Agreement hereby agrees and consents to such venue and waives any objection thereto. The arbitration shall be conducted in English, on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. The prevailing party shall be entitled to an award of reasonable attorney fees. An award of arbitration may be confirmed in a court of competent jurisdiction sitting in Ada County, Idaho.
11.8.4 Class Action Waiver.
EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.
Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Blu Bor, which shall not be unreasonably withheld, or conditioned. Any purported assignment or delegation in violation of this Section will be null and void. Blu Bor may freely assign and/or transfer this Agreement. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
11.10 Compliance with Laws.
Notwithstanding anything to the contrary, 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. 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 Blu Bor 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 FARsection 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 Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To see archived versions of the Blu Bor Terms of Service, click here.
Please contact Blu Bor at email@example.com with any questions regarding these Terms.