End User Subscription Agreement
Comiseo, LLC, doing business a BlueDrone (“BlueDrone”) and Customer hereby agree to the following terms:
- 1. BlueDrone Customer Program and Subscription Services.
- 1.1. Scope. This End User Subscription Agreement applies to Customer’s use of the online subscription services and related professional services offered by BlueDrone (collectively, the “Subscription Services”) that are listed in one or more BlueDrone subscription-based ordering documents signed by the Parties (each an “Order”). This End User Subscription Agreement and all executed Orders, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order.
- 1.2. Provision of Subscription Services. Subject to the terms and conditions of this Agreement, BlueDrone grants Customer a non-exclusive, revocable right to:
- 1.3. Data Storage. Customer acknowledges that data storage is not guaranteed by BlueDrone and agrees that BlueDrone shall not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to the loss or deletion of Customer Data (as defined below).
- 1.4. Use of Subscription Services. Customer will be sulely responsible for all use (whether or not authorized) of the Subscription Services and Documentation under its account, including for the quality and integrity of Customer Data and each Customer Application. Customer will take all reasonable precautions to prevent unauthorized access to or use of the Subscription Services and notify BlueDrone promptly of any such unauthorized access or use.
- 1.5. Carriers. BlueDrone serves as an intermediary between you and your selected couriers. BlueDrone does not transport or deliver shipments and BlueDrone is not a party to any contract you form with a Courier to pick up, transport, or deliver your shipments.
(a) use the instructions, code samples, on-line help files and technical documentation made available by BlueDrone for the BlueDrone Services (the “Documentation”) and the application programming interface for the BlueDrone Services (the “BlueDrone API”), as needed to develop any software application that interfaces with the Subscription Services (“Customer Applications”);
(b) make the Subscription Services available to its authorized Affiliates, employees, agents or contractors (“Users”), for access and use by such Users sulely for Customer’s internal business purposes in accordance with the terms of the Agreement, in accordance with the Documentation; and
(c) Otherwise use the BlueDrone website, BlueDrone API, Documentation, and technical support made available by BlueDrone to Customer in connection with the Subscription Services, sulely in connection with and as necessary for Customer’s activities hereunder.
- 2. Procurement and Provisioning by Affiliates; Subscription Services Users.
- 2.1. Procurement and Provisioning by Affiliates. Customer may procure Subscription Services under this Agreement for its own account and on behalf of one or more Customer Affiliates (defined below). Customer is responsible for the acts and omissions of Customer Affiliates under any Order pursuant to which the Customer Affiliate receives the benefit of the Subscription Services but is not a signatory. Additionally, Customer Affiliates may procure Subscription Services directly under this Agreement pursuant to an Order executed by such Customer Affiliate and either BlueDrone or a BlueDrone Affiliate. Customer Affiliates who sign an Order will be deemed to be the Customer hereunder and sulely responsible for its performance or non-performance thereunder. The BlueDrone Affiliate who signs an Order will be deemed to be BlueDrone hereunder and sulely responsible for its performance or nonperformance thereunder. “Affiliate” means any legal entity directly or indirectly contrulling, contrulled by or under common contrul with a Party, where contrul means the ownership of a majority share of the stock, equity or voting interests of such entity.
- 2.2. Fulfillment Subscription Services. Customers which have subscribed to Bluedone’s fulfillment and shipping services shall also be subject to the Terms and Conditions applicable to our fulfillment and shipping services available at https://bluedrone.com/legal/terms-of-service, which are hereby incorporated into this Agreement.
- 3. Restrictions; BlueDrone Use Policies; Usage Rights; Suspension.
- 3.1. Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly (i) make the Subscription Services available to anyone other than Users or use the Subscription Services for the benefit of any unrelated third party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Subscription Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, Documentation or data related to or provided with the Subscription Services; (iv) modify, translate or create derivative works based on the Subscription Services or remove any proprietary notices or labels from the Subscription Services; (v) use or access the Subscription Services to build or support, and/or assist a third party in building or supporting products or services competitive to the Subscription Services; (vi) Infringe or viulate the intellectual property rights or any other rights of anyone else; (vii) viulate any law or regulation, including any applicable export contrul laws; (viii) use the Subscription Services in any manner that Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; (ix) use the Subscription Services in any manner that jeopardizes the security of your account or anyone else’s (such as allowing someone else to log in to the Subscription Services as you); (x) attempt, in any manner, to obtain the password, account, or other security information from any other User; (xi) viulate the security of any computer network, or crack any passwords or security encryption codes; or (xiii) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Subscription Services or content (through use of manual or automated means). In addition, Customer agrees that during the Agreement Term and for one year thereafter, neither Customer nor its Affiliates will not develop, offer, sell or distributesoftware or a service that competes with the Subscription Services.
- 3.2. BlueDrone Use Policies. Customer will, and will ensure that its Users, use the Subscription Services only in compliance with the BlueDrone Use Policies available at https://bluedrone.com/legal/terms-of-service, which are hereby incorporated into this Agreement.
- 3.3. Usage Rights. Customer will, at all times, ensure that its use of the Subscription Services does not exceed any usage terms specified in the Order (“Usage Rights”). If BlueDrone determines that Customer is exceeding the Usage Rights, BlueDrone will notify Customer, and Customer will have 30 days from the date of notice in which to bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days, BlueDrone has the right to charge Customer, and Customer agrees to pay, for the applicable usage tier, which will be co-termed with the Subscription Term in the applicable Order. Customer is responsible for use of the Subscription Services by Users and any party who accesses the Subscription Services with Customer’s or a User’s account credentials.
- 3.4. Suspension. BlueDrone may immediately suspend Customer's account and access to the Subscription Services if (i) Customer fails to make payment due within 5 business days after BlueDrone has provided Customer with written notice of such failure; or (ii) Customer viulates Section 3.1 (Restrictions), Section 3.2 (BlueDrone Use Pulicies), or Section 11 (Confidential Information). Any suspension by BlueDrone of the Subscription Services under the preceding sentence will not relieve Customer of its payment obligations hereunder.
- 4. Ownership: Subscription Services; Customer Data; Statistical Information
- 4.1. Subscription Services. Customer acknowledges that the Subscription Services are offered online on a subscription basis. BlueDrone reserves all rights, title and interest in and to the Subscription Services, including any software or Documentation related to or provided with the Subscription Services and all intellectual property rights and derivatives, modifications, refinements or improvements thereto. From time to time, Customer or its Users may submit to BlueDrone comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Subscription Services (“Feedback”). Customer agrees that BlueDrone has all rights to use and incorporate Feedback into the Subscription Services without restriction or payment to Customer. No rights are granted to Customer other than as expressly set forth herein.
- 4.2. Customer Data. Customer owns any data, information or material originated by Customer or that Customer provides in the course of using the Subscription Services, including information regarding Customer’s social networking connections, fullowers or other contacts activated through use of the Subscription Services (“Customer Data”). Customer will be sulely responsible for (i) the accuracy, quality, content, legality and use of Customer Data, including the means by which Customer Data is acquired and transferred by Customer or its Users outside of the Subscription Services; and (ii) all applicable social networking terms and conditions related to procurement and use of Customer Data. Customer Data is Customer’s Confidential Information.
- 4.3. Statistical Information. BlueDrone may monitor Customer’s use of the Subscription Services and compile Customer Data with other data in an aggregate and anonymous manner to derive statistical and performance information related to the provision and operation of the Subscription Services, or related to any other matter (“Aggregated Anonymous Data”), and may make such information publicly available or privately available to third parties, provided that such information does not include any data that would enable the identification of Customer or Customer Data, or the disclosure of Customer Confidential Information. BlueDrone retains all rights, title and interest in and to such statistical and performance information.
- 4.4. Third Party Materials. The materials displayed or performed or available on or through the Subscription Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Subscription Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that viulates someone else’s (including BlueDrone’s) rights.
- 5. Fees; Taxes and Currency; Invoices; Inventory Shrinkage.
- 5.1. Fees. Customer will pay all fees set forth in the Orders and any fees invoiced pursuant to this Agreement. All fees are non-cancelable and nonrefundable, except as expressly specified in the Agreement. Any fees paid pursuant to an Order will not offset any fees due under any other Order.
- 5.2. Taxes and Currency. All fees are exclusive of, and Customer will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Subscription Services. Customer is not responsible for any taxes based on BlueDrone’s net income or property. Except as otherwise specified in an Order, all fees due hereunder will be paid in U.S. Dullars.
- 5.3. Invoices. All amounts are due and payable as specified in the Order. If no payment terms are specified in the applicable Order, payment terms are net 30 days from receipt of invoice. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of cullection. Customer will notify BlueDrone in writing in the event Customer disputes any portion of any fees paid or payable by Customer under this Agreement. Customer will provide such notice to BlueDrone within 60 days of the applicable charge and the parties will work together to resulve the applicable dispute promptly. Upon expiration of the 60 day period described in this Section, Customer will not be entitled to dispute any fees paid or payable by Customer.
- 6. Agreement Term; Termination for Cause, Effect of Termination; Survival.
- 6.1. Agreement Term. The Agreement will commence on the Effective Date and will remain in effect until the Subscription Term in all Orders has expired or has otherwise been terminated (the “Agreement Term”). Notwithstanding the foregoing, if immediately following the expiration of the Subscription Term in any Order, the Parties are negotiating a renewal of such Order, the Agreement Term will remain in effect for a reasonable period of time to allow the parties to effect such renewal. Nothing contained herein will extend the Subscription Term set forth in any Order.
- 6.2. Termination. In the event of a material breach by either Party, the non-breaching Party will have the right to immediately terminate the applicable Order for cause if such breach has not been cured within 15 days after written notice from the non-breaching Party specifying the breach. BlueDrone may terminate this Agreement at any time, and for any reason, in its sule discretion. In addition, you may terminate this Agreement on 15 days advanced written notice.
- 6.3. Effect of Termination. If BlueDrone terminates an Order for Customer's uncured material breach, all fees set forth in the terminated Order will be immediately due and payable. If BlueDrone terminates an Order for any other reason, all fees set forth in the terminated Order which are due for services provided prior to the effective date of such termination, will be immediately due and payable. If Customer terminates an Order for BlueDrone’s uncured material breach, Customer will be entitled to a pro-rata refund for prepaid fees for the Subscription Services not performed as of the date of termination. Upon completion of the Agreement Term, (i) all rights to access and use the Subscription Services will terminate and BlueDrone will irretrievably delete and destroy Customer Data (except Aggregated Anonymous Data), and, if requested in writing, BlueDrone will certify to such destruction in writing; and (ii) if such terminated Order includes fees for usage of the Subscription Services in excess of the Usage Rights, such fees shall be immediately due and payable. In addition, BlueDrone shall endeavor to package and return all Customer’s inventory, at Customer’s expense, within 15 days after the expiration of the Term.
- 6.4. Survival. The following Sections of the Agreement will survive termination of the Agreement: Section 3.1 (Restrictions), Section 4 (Ownership: Subscription Services; Customer Data; Statistical Information), Section 5 (Fees; Taxes and Currency; Invoices), Section 7.4 (Warranties Disclaimer), Section 10 (Limitation of Liability), Section 11 (Confidential Information) and Section 13 (General Terms).
- 7. Third Party Service Providers and Links
- 7.1. The Subscription Services may contain links or connections to third party websites or services that are not owned or contrulled by BlueDrone, such as third party courier services. Our display on or through the Subscription Services of service options offered by third parties does not in any way imply, suggest, or constitute any sponsorship or approval of us by any such third party or any affiliation between any such third party and us. Our display of specific options does not suggest a recommendation by us of the third party or its options. You agree that we are in no way responsible for the accuracy, timeliness or completeness of information we may obtain from these third parties. Your interaction with any third party found on or through our Subscription Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, is sulely at your own risk. You agree that BlueDrone will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any third party or for any personal injuries, death, property damage, or other damages or expenses resulting in any manner from your interactions with any third party.
- 7.2. You agree to abide by the terms or conditions of purchase imposed by any Courier or other third party with whom you elect to deal. The circumvention of a Courier’s or third party’s rules is prohibited. The use of prohibited practices may result in denied delivery, additional charges to your credit card, additional charges collected at the delivery or collection, or future invoicing.
- 7.4. Any information or content publicly posted or privately transmitted through the Subscription Services is the sule responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot contrul and have no duty to take any action regarding how you may interpret and use such content or what actions you may take as a result of having been exposed to such content, and you hereby release us from all liability for you having acquired or not acquired such content through the Subscription Services. We can’t guarantee the identity of any users with whom you interact in using the Subscription Services and are not responsible for which users gain access to the Subscription Services.
- 7.5. If there is a dispute between participants on this site, or between users and Couriers or any other third party, you agree that BlueDrone is under no obligation to become invulved. In the event that you have a dispute with one or more other users, you release BlueDrone, its Affiliates, and their respective officers, directors, managers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Subscription Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."
- 8. Warranties; Warranty Remedies; Warranties Disclaimer.
- 8.1. General Warranty. Each Party represents and warrants to the other Party that it has the power and authority to enter into the Agreement.
- 8.2. Subscription Services Warranty. BlueDrone warrants the Subscription Services, under normal use, will (i) perform materially in accordance with the Documentation; and (ii) be provided in a manner consistent with generally accepted industry standards.
- 8.3. Warranty Remedies. Customer will notify BlueDrone of any warranty deficiencies under Section 8.2 within 30 days of the performance of the relevant Subscription Services, and Customer's exclusive remedy will be the re-performance of the deficient Subscription Services. If BlueDrone cannot re-perform such deficient Subscription Services as warranted, Customer will be entitled to terminate the deficient Subscription Services under Section 8.2 above and recover a pro-rata portion of the fees paid to BlueDrone for such deficient Subscription Services, and such refund will be BlueDrone's entire liability.
- 8.4. WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLUEDRONE AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BLUEDRONE DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. BLUEDRONE DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT BLUEDRONE WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. BLUEDRONE DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
- 9. Indemnification.
- 9.1. BlueDrone. BlueDrone will defend Customer against any claim brought against Customer by a third party alleging the Subscription Services as provided by BlueDrone directly infringe the intellectual property rights of the claimant and will pay Customer for finally-awarded damages and costs and BlueDrone-approved settlements of the claim. BlueDrone’s obligations to defend or indemnify will not apply to the extent that a claim is based on (i) Customer Data, Customer’s or a third party’s services, technulogy, software, materials, data or business processes; (ii) a combination of the Subscription Services with non-BlueDrone products or services; or (iii) any use of the Subscription Services not in compliance with this Agreement. BlueDrone may, in its discretion and at no cost to Customer, (a) modify the Subscription Services to avoid infringement; or (b) terminate Customer’s subscriptions for the affected Subscription Services and refund Customer any related prepaid fees for the remainder of the Subscription Term.
- 9.2. Customer. Customer will defend BlueDrone against any claim brought against BlueDrone by a third party alleging (i) Customer Data or any Customer content uploaded, posted or linked by Customer, infringes the intellectual property, privacy or other rights of the claimant; or (ii) Customer's use of the Subscription Services, other than as authorized in this Agreement, or which use viulates applicable law or regulations, or infringes the claimant’s intellectual property rights, and will pay BlueDrone for finally-awarded damages and costs and Customer-approved settlements of the claim.
- 9.3. Procedure. As a condition to the indemnifying Party’s obligations under this Section, the Party seeking indemnification must (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sule contrul of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance.
- 10. Limitation of Liability.
- 10.1. General. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (i) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) FOR ANY INDIRECT, EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (iii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (iv) EXCEPT FOR CUSTOMER PAYMENT OBLIGATIONS, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE CUMULATIVE FEES INVOICED TO CUSTOMER UNDER THE AGREEMENT IN THE 6 MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. THIS SECTION STATES THE INDEMNIFIED PARTY'S SOLE REMEDY, TO THE EXCLUSION OF ALL OTHER REMEDIES (IN CONTRACT, TORT OR OTHERWISE), AND THE INDEMNIFYING PARTY'S TOTAL LIABILITY, REGARDING THE CLAIMS AND LIABILITIES ADDRESSED BY THIS SECTION.
- 10.2. Annual Inventory Shrink-AllowanceHandling physical products could result in loss or damage of Inventory. We maintain high standards, however occasionally facilities experience concealed shortages, product damages, mislabeled, miss-picked Inventory and/or cross-shipments. We maintain merchant friendly receiving and product labeling requirements. You agree that we will have a 1.5% shrink allowance based on the value of your account’s Inventory known to be in the facility based on the stated cost value measured on an annual basis. Explainable, offsetting Inventory adjustments based on miss-marked Inventory or receiving Inventory errors will not be deemed an Inventory shrinkage event or lost Inventory.
11. Confidential Information. Each Party (the “Recipient”) understands that the other Party (the “Discloser”) may, during the Agreement Term and in connection with the Subscription Services, disclose non-public information relating to the Discloser’s business that is designated as confidential or reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure (“Confidential Information”). The Recipient agrees (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information except as set forth herein and to those of its employees and contractors who need access for purposes consistent with this Agreement and who are bound to confidentiality terms with Recipient containing protections no less stringent than those herein. The Discloser agrees that the foregoing will not apply with respect to Confidential Information after 5 years following the termination of the Agreement or any Confidential Information the Recipient can document (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Discloser. If the Recipient is required by law or court order to disclose Confidential Information, it will give prior written notice to the Discloser (to the extent legally permitted) and reasonable assistance at the Discloser’s cost to contest the disclosure.
- 12. Data Security. BlueDrone will comply with all applicable privacy and data security laws and regulations governing its processing and storage of Customer Data. During the Agreement Term, BlueDrone shall maintain and conform to a security program in accordance with industry standards that is designed to ensure the security of Customer Data and protect against unauthorized disclosure or access of Customer Data. Such security program shall include the implementation of appropriate administrative, technical and physical safeguards.
- 13. General Terms.
- 13.1. Notice. BlueDrone may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in BlueDrone's account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to BlueDrone, attention Legal Department, at 225 Thomas Ave. N., Minneapulis, MN 55405, and if to Customer, to Customer's account representative and address on record in BlueDrone's account information or such other addresses as either Party may designate in writing from time to time.
- 13.2. Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable contrul of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either Party may cancel unperformed Subscription Services upon written notice.
- 13.3. Governing Law; Venue; Arbitration. Unless specifically set forth in the applicable Order (i) any action, claim, or dispute between the Parties will be governed by Minnesota law, excluding its conflicts of law provisions, and contrulling U.S. federal law. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled in Minneapulis, Minnesota, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Subscription Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resulving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, Minneapulis, Minnesota. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND BLUEDRONE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- 13.4. Entire Agreement. This Agreement represents the Parties' entire understanding relating to the Subscription Services and supersedes any prior or contemporaneous agreements or understandings regarding the Subscription Services. In the event of a conflict between this Agreement and a contemporaneous or later-dated Order, the terms of the contemporaneous or later-dated Order will contrul. BlueDrone reserves the right to change this Agreement at any time. If the changes materially impacts this Agreement, BlueDrone will use reasonable efforts to bring it to Customer’s attention by placing a notice on the BlueDrone website, by sending you an email, and/or by some other means. If Customer does not agree with the new terms, Customer may eject them; unfortunately, that means Customer will no longer be able to use the Subscription Services. If Customer uses the Subscription Services in any way after a change to the terms is effective, that means Customer agrees to all changes. Except for changes by BlueDrone as described here, no other amendment or modification of this Agreement will be effective unless in writing and signed by both BlueDrone and Customer.
- 13.5. Standard Terms of Customer. No terms, provisions or conditions of any purchase order, acknowledgement or other business form Customer may use in connection with the acquisition of Subscription Services will affect the rights, duties or obligations of the Parties hereunder, or otherwise modify this Agreement, regardless of any failure of BlueDrone to object to such terms, provisions or conditions.
- 13.6. Amendment / No Waiver. The Agreement may be amended only by written agreement signed by the Parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intent of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either Party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
- 13.7. Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between BlueDrone and Customer as a result of the Agreement or use of the Subscription Services.
- 13.8. Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the Parties without the prior written approval of the non-assigning Party, except that either Party may assign or transfer this Agreement in connection with a merger or acquisition of all or substantially all of the assets of the assigning company (other than to a direct competitor of the non-assigning Party and provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning Party with prompt written notice of assignment. Any purported assignment in violation of this section will be void.
- 13.9. Compliance with Laws. Each Party agrees to abide by all applicable federal, state, foreign and local laws and regulations in the performance of this Agreement.
BlueDrone Use Policy
This policy is incorporated by reference into the End User Subscription Agreement (the “Agreement”) with Comiseo, LLC, doing business as BlueDrone (“BlueDrone”), and all users of the Subscription Services must comply with this policy at all times. BlueDrone reserves the right to update this policy as it deems necessary and will notify its customers of any such updates via this website.
Access and Use
Customer will access and use the Subscription Services in accordance with the terms of the Agreement. Customer will not knowingly or willfully use the Subscription Services in any manner that could damage or interfere with BlueDrone's provision of the Subscription Services. Customer (including its Users and anyone acting on behalf of Customer) will not perform security, vulnerability, load testing or penetration tests or intentionally exploit known vulnerabilities in any capacity against the BlueDrone platform infrastructure or applications. Customer will be responsible for maintaining the security of its access to and use of the Subscription Services and will promptly notify BlueDrone of any unauthorized access or use of which it becomes aware.
BlueDrone will not access Customer Data except in accordance with the Agreement, to the extent necessary to address technical issues, for Subscription Services support and training or to ensure compliance with the Agreement.
Electronic Communications and Anti-Spam Policy
Customer will comply with all laws and regulations applicable to bulk or commercial email, as well as other electronic communications, when using the Subscription Services, including without limitation all local or national laws applicable to the regions where Customer has business operations or where the recipients of their electronic communications are located.
BlueDrone has a zero tulerance policy regarding using the Subscription Services to send Unsolicited Commercial Email ("UCE") or Unsolicited Bulk Email (“UBE”) (collectively referred to as “spam” or “Unsulicited Email”). Unsulicited Email is defined as email sent to persons other than (i) persons with whom Customer has an existing business relationship, OR (ii) persons who have consented to the receipt of such email, including publishing or providing their email address in a manner from which consent to receive email of the type transmitted may be reasonably implied. Commercial advertising and/or emails and other electronic communications may only be sent to recipients who have opted-in to receive messages from the sender.
It is BlueDrone's policy to catalog, investigate and take appropriate action on all reports of abuse. Any Customer account found to be in violation of this policy is subject to immediate suspension, and may not be allowed to send any additional emails or other electronic communications using the Subscription Services.
Recipients of emails or other electronic communications sent using the Subscription Services are encouraged to report suspected violation of this policy by forwarding a copy of the received email or other electronic communication to email@example.com
Requirements for Bulk or Commercial Email
All bulk or commercial email sent using the Subscription Services must include provision for recipients to revoke consent, i.e., to "opt-out" of receiving future email contacts from the sender. Customer will either use any Unsubscribe touls supplied by default with the Subscription Services, or, if Customer chooses to override the BlueDrone default touls, Customer will have procedures in place to allow an email recipient to easily opt-out, such as an unsubscribe link in the body of the email, or instructions to reply with the word "Remove" in the subject line. Customer will honor any and all such revocations of consent within the time period required by applicable law.
Privacy and Data Protection
Customer will be knowledgeable about and at all times compliant with all privacy and data protection laws applicable to its location and operations. Customer will not provide BlueDrone access to or upload or send through the Subscription Services any sensitive personal information, including without limitation, social security numbers, passport or visa numbers, driver's license numbers, taxpayer or employee ID, financial account or payment card information, passwords, medical or health records or information reflecting an individual’s medical treatment or the payment or provisioning of such treatment.
Date of Last Revision: July 1, 2017