BlueTie.com, Inc. ("BlueTie") www.bluetie.com
1.1 Access and Use.Subject to Subscriber's compliance with the terms and conditions of this Agreement, BlueTie shall permit Users to access and use the content, tools and services available as part of the Standard Customer Services and the Additional Services (if any) ordered by Subscriber on, the BlueTie website, or by telephone or e-mail (collectively, the "Services"), in accordance with the licenses set forth in Section 3.
1.2 Modification of the Services. BlueTie reserves the right, at its discretion, to modify the functionality of the Services at any time.
2.1 Fees. Subscriber agrees to pay the fees set forth in the BlueTie website online order form. BlueTie may take commercially reasonable actions to validate Subscriber's credit card. BlueTie, Inc is authorized to charge Customer card each month or annually for all fees due that month or year for the services Customer has subscribed to, unless BlueTie is notified otherwise in writing. Customer acknowledges that the fees due will include the regular monthly fees for the current month and may include additional usage fees from the previous month. Customer acknowledges that if paying annually, fees due will include regular annual fees for the next annual term. Customers paying annually also agree that any additional services purchased within term will be paid for immediately for the remainder of the term. Customer acknowledges that annual fees paid are refundable up to 30 days after purchase and cancellation of services require notification in writing to Bluetie. Annual subscriptions require a one-year commitment and full payment up front to qualify for an equivalent reduced monthly rate. Annual accounts cancelled prior to the end of the subscription period will not be refunded. Customer acknowledges that the first charge placed will include the balance already due, if any exists. Customer agrees to pay the above credit card charges in accordance with the Card Issuer Agreement.
2.2 Taxes. Subscriber shall pay any taxes, including personal property taxes or sales taxes, resulting from use of the Services.
2.3 Late Payments. Late payments shall be subject to interest at the rate of one and one-half percent (1 1/2%) per month but in no case more than the maximum allowed by law. In addition to any other remedies BlueTie may have, BlueTie reserves the right to suspend the provision of the Services if Subscriber fails to pay any fees when due. Subscriber shall pay all attorney and collection fees arising from BlueTie's efforts to collect any past due amounts from Subscriber to the extent allowed by law.
3.1 License to the Services and BlueTie Content. BlueTie grants to Subscriber a non-transferable, non-exclusive license to permit Users to access and use the Services solely in accordance with this Agreement. As part of the Services, Users shall have access to information, communications, photos, text, video, graphics, music, sounds, images and other material and services posted onto the Services by BlueTie or third party content and service providers ("Service Providers") and designated for use by Users (collectively, "BlueTie Content"). BlueTie grants to Subscriber a non-transferable, non-exclusive license to permit each User to download one copy of BlueTie Content to a single computer for purposes of viewing, browsing and utilizing the Services. Neither Subscriber nor Users shall modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, or display the BlueTie Content, incorporate the BlueTie Content into another web site, or mirror the Services. Title to and ownership of the Services shall be and at all times remain in BlueTie. The BlueTie Content is owned by BlueTie and Service Providers and is protected by United States and foreign intellectual property laws. Unauthorized use of the BlueTie Content may violate copyright, trademark and other laws.
3.2 License to Software. BlueTie grants to Subscriber a non-exclusive, non-transferable license to permit Users to access and use the software on the BlueTie website and downloadable from the website ("Software"). Subscriber agrees that Users shall only use the Software from a server controlled by BlueTie and only in connection with Users' use of the Services. This license does not confer upon Subscriber or Users any right to copy the Software or to use it on computers other than a server controlled by BlueTie. Neither Subscriber nor Users may sublicense, reverse engineer, decompile, disassemble, modify, adapt, translate, create derivative works of, copy, distribute, or transfer the Software. Subscriber acknowledges that the Software is intended for access and use by means of web browsing software, and that BlueTie does not commit to support any particular browsing platform. If any of the Software is accompanied by an end user license agreement, then use of such Software shall be governed by the terms of that license agreement.
3.3 License to Use Subscriber Name. Subscriber agrees that BlueTie may use Subscriber's name and logo to identify Subscriber as a customer of BlueTie on the BlueTie website and in promotional and corporate materials. Additionally, Subscriber agrees that BlueTie may issue a press release identifying the Subscriber as a customer and explaining the Subscriber's intended use of BlueTie and the benefits they expect to receive.
Each User shall be required to select a username and password. Subscriber is responsible for maintaining the confidentiality of Users' usernames and passwords, and for all uses of Users' usernames and passwords. Subscriber agrees to immediately notify BlueTie of any unauthorized use of a User's username or password.
5.1 Restrictions. Subscriber is responsible for Users' use of the Services. Subscriber agrees that Users shall not: communicate or upload material that is copyrighted, unless Subscriber is the copyright owner or has the permission of the copyright owner to communicate or upload it; communicate or upload material that reveals trade secrets, unless Subscriber owns them or has the permission of the owner; communicate or upload material that infringes any intellectual property rights of others or their privacy or publicity rights; communicate or upload material that is obscene, defamatory, threatening, harassing, abusive, or hateful to another User or any other person or entity; communicate or upload a sexually-explicit image or statement; communicate or upload advertisements or solicitations for business without BlueTie's prior approval; communicate or upload chain letters, pyramid schemes, or similar content; or impersonate another person.
5.2 Non-Infringement. Subscriber warrants and represents to BlueTie that all information, communications, software, photos, text, video, graphics, music, sounds, images and other materials transmitted or uploaded by Users to the Services or to BlueTie are solely owned by Subscriber or are provided with the express authority of the applicable owner(s) and do not infringe upon any third party's rights (including, without limitation, intellectual property rights), or contain any material or information that is obscene, defamatory, libelous, slanderous, that violates any personal right of publicity or privacy, or that will otherwise result in any tort, injury, damage or harm to any person.
5.3 License and Ownership. Subscriber shall retain all right, title and interest in all information, data and other materials uploaded by Users to any non-public areas of the Services.
Subscriber agrees that neither it nor Users shall (i) rent, sell, lease or otherwise transfer the Services, (ii) use the Services in a manner that violates applicable law, (iii) violate or attempt to violate the security of the Services or use the Services to violate the security of other web sites by any method, including, without limitation, (a) accessing data not intended for Subscriber or Users or logging into a server or account which Users are not authorized to access, (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (c) attempting to interfere with service to any member or user of the Services, including, without limitation, by submitting a virus to the Services, overloading, "flooding," "spamming," "mailbombing," attempting "denial of service" attacks, or "crashing," (d) sending unsolicited e-mail, including promotions and/or advertising of products or services, or (e) forging any BlueTie packet header or any part of the header information in any e-mail or newsgroup posting. Subscriber shall be liable to BlueTie for any failure by Users to comply with the terms of this Agreement.
7.1 Confidential Information. "Confidential Information" shall mean any information relating to or disclosed in connection with this Agreement, including technical processes, formulas, product designs, sales, cost and other unpublished financial information, product and business plans, and projections and marketing data, that is marked as confidential or proprietary or should be reasonably understood to be confidential or proprietary to the disclosing party.
7.2 Confidentiality Obligation. All Confidential Information shall be retained by the receiving party in confidence for the term of this Agreement and for a period of three (3) years thereafter and shall not be used except in connection with performance under this Agreement.
7.3 Exceptions. Nothing in this Agreement shall in any way restrict the right of the receiving party to use, disclose, or otherwise deal with any information that (i) was already known to the receiving party at the time of disclosure as evidenced by written documents in the receiving party's possession prior to disclosure; (ii) was generally available to the public or becomes publicly known through no wrongful act of the receiving party; (iii) was received by the receiving party from a third party who had a legal right to provide it; or (iv) was developed independently of knowledge of Confidential Information received by the receiving party from the disclosing party. Nothing in this Agreement shall prevent a receiving party from disclosing information as may be required by law.
8.1 Disclaimer. BLUETIE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO THE SUITABILITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THE BLUETIE CONTENT, THE SOFTWARE OR THE SERVICES. BLUETIE DOES NOT WARRANT THAT THE BLUETIE CONTENT, THE SOFTWARE OR THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING WITHOUT LIMITATIONS STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE BLUETIE CONTENT, THE SOFTWARE OR THE SERVICES, WHETHER MADE BY BLUETIE'S EMPLOYEES OR OTHERWISE THAT IS NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY BLUETIE FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF BLUETIE WHATSOEVER.
8.2 Limitation.IN NO EVENT SHALL BLUETIE BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, LOST DATA OR ECONOMIC DAMAGE, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER BLUETIE HAS BEEN ADVISED OR HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding any provision contained herein to the contrary, the maximum liability of BlueTie arising out of or in connection with this Agreement or any use of or inability to use the Services, whether such liability arises from any claim based upon contract, warranty, tort, or otherwise, shall in no event exceed the actual amount paid to BlueTie by the Subscriber hereunder during the three (3) months preceding the claim or $100, whichever is greater.
8.3 Limitation on Actions. Subscriber may not institute any action in any form arising out of this Agreement more than twelve (12) months after the cause of action has arisen.
9.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect for a period equal to the period selected in the online order form based upon product type, unless extended or sooner terminated in accordance with the provisions of this Agreement.
9.2 Renewal. The term of this Agreement shall automatically renew for additional periods equal to the period selected in the online order form based upon the product type ordered (each a "Renewal Term"), unless either party, by notice in writing given at least thirty (30) days prior to the expiration of the initial term of this Agreement or any Renewal Term, advises the other party of its desire for the Agreement not to so renew.
9.3 Termination for Default. Either party may terminate this Agreement (i) in the event the other party commits a material breach of this Agreement and such failure continues for a period of fifteen (15) days following written notice of such failure; or (ii) immediately and without notice if the other party makes any assignments of assets or business for the benefit of creditors, or a trustee or receiver is appointed to conduct its business or affairs, or it is adjudged in any legal proceeding to be in either voluntary or involuntary bankruptcy.
9.4 Security. BlueTie reserves the right to suspend Users' access to the Services or immediately terminate this Agreement in the event Subscriber or Users engage in activities that in BlueTie's reasonable judgment present a security risk to BlueTie, BlueTie's network or equipment, or our other subscribers or users.
Subscriber shall defend, indemnify, and hold harmless BlueTie, Service Providers, and their respective officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from Subscriber's or any User's breach of the warranties or obligations under this Agreement. BlueTie shall notify Subscriber of any such claim, suit, or proceeding and shall cooperate with Subscriber in defending any such claim, suit or proceeding at Subscriber's expense.
11.1 Independent Contractor. BlueTie and Subscriber are independent contractors and nothing in this Agreement shall create or imply any agency relationship between the parties, nor shall the Agreement be deemed to constitute a joint venture or partnership between the parties. Neither party shall have authority to bind or otherwise obligate the other in any manner whatsoever.
11.2 Force Majeure. BlueTie shall not be liable for its failure to perform hereunder due to contingencies beyond its reasonable control, including, but not limited to, strikes, riots, wars, fire, power failure, hardware failure, acts of God, or acts in compliance with any law or government regulation.
11.3 Governing Law and Forum. This Agreement is governed by the internal substantive laws of the state of New York, without respect to its conflict of laws principles. Jurisdiction of all claims relating to this Agreement shall lie exclusively with the state or federal courts in Rochester, New York, and both parties hereby consent to the exclusive personal jurisdiction of such courts if there is a dispute regarding this Agreement.
11.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.5 Assignment. Subscriber may not assign or delegate any of its rights or obligations under this Agreement without the written consent of BlueTie. BlueTie may assign or delegate any of its rights or obligations under this Agreement without the written consent of Subscriber. BlueTie may subcontract any or all of its obligations under this Agreement. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and their permitted assigns.
11.6 Notices. Any notices required or permitted to be given under this Agreement shall be deemed sufficiently given if in writing, and if delivered by hand, by courier, by confirmed facsimile or sent by registered or certified mail, postage and fees prepaid. Notices to Subscriber shall be sent to the Administrative Contact set forth in the order and notices to BlueTie shall be sent to the address set forth above, to the attention of President, or at such other addresses as may be furnished in writing to the notifying party.
11.7 Waiver. The waiver by one party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision by the other party.
11.8 Severability. In the event that any of the provisions of this Agreement or the application of any such provisions to the parties hereto with respect to their obligations hereunder are held by a court of competent jurisdiction to be unlawful or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and shall not be affected, impaired, or invalidated in any manner.
11.9 Paragraph Headings. The paragraph headings contained herein are for reference only and shall not be considered as substantive parts of this Agreement.
11.10 Compliance with Law. Both parties shall comply with all applicable laws and regulations of governmental bodies or agencies in their performance under this Agreement.
11.11 Entire Agreement. This Agreement available at www.bluetie.com (as such Terms of Service may be amended from time to time), contains the entire and only understanding between the parties and supersedes all prior agreements, either written or oral, relating to the subject matter hereof. Except as expressly provided herein, no modifications or waivers of this Agreement shall be binding on either party unless made in a writing that specifically references this Agreement and is signed by persons authorized to sign agreements on behalf of Subscriber and BlueTie. This Agreement may be signed by the parties in separate counterparts which will together constitute one and the same Agreement. Signatures transmitted via facsimile shall be valid and binding as original.
September 2009, Version 5