Bluescape Subscription Service Terms and Conditions

PLEASE READ THESE TERMS AND CONDTIONS (“AGREEMENT”) CAREFULLY BEFORE ORDERING, ACCESSING OR USING THE BLUESCAPE SERVICE (AS DEFINED BELOW).

IF YOU HAVE INDICATED IN AN ORDER FOR THE BLUESCAPE SERVICE (WHETHER THAT ORDER IS SUBMITTED DIRECTLY TO BLUESCAPE OR TO ONE OF ITS AUTHORIZED PROMOTION/MARKETING SOLUTION PROVIDERS) THAT YOUR ACCESS AND USE OF THE BLUESCAPE SERVICE IS GOVERNED BY THESE TERMS AND CONDITIONS THEN UPON ACCEPTANCE OF THAT ORDER (“ORDER”), OR IF YOU ARE BEING PRESENTED WITH THESE TERMS AND CONDITIONS AS YOU ATTEMPT TO ACCESS OR USE THE BLUESCAPE SERVICE THEN UPON YOUR CLICKING ON THE “ACCEPT” BUTTON, YOU WILL BE BOUND BY THIS AGREEMENT. IF YOU AGREE TO BE BOUND BY THIS AGREEMENT, BY PROVIDING YOU WITH ACCESS AND USE OF THE BLUESCAPE SERVICE, BLUESCAPE WILL BE BOUND BY THIS AGREEMENT AS WELL. IF YOU DO NOT AGREE TO ALL OF THIS AGREEMENT, DO NOT SUMIT AN ORDER FOR THE BLUESCAPE SERVICE OR CLICK THE “DO NOT ACCEPT” BUTTON, IN WHICH CASE YOU WILL NOT BE AUTHORIZED TO ACCESS OR USE THE BLUESCAPE SERVICE. IF YOU ARE AN INDIVIDUAL ACTING IN YOUR OWN CAPACITY, THE TERM “CUSTOMER” IN THIS AGREEMENT REFERS TO YOU PERSONALLY. IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY AND THE TERM “CUSTOMER” IN THIS AGREEMENT REFERS TO THAT ENTITY.

This Agreement is between Thought Stream LLC, dba Bluescape (“Bluescape”), a Delaware limited liability company with its principal place of business at 999 Skyway Rd, Suite 145, San Carlos, CA 94070 and Customer. This Agreement governs the Customer’s access and use the web-based subscription service provided by Bluescape that allows enterprise project teams to simultaneously work within a collaborative visual work space in real time and to store, disseminate, edit and manage the results of such collaborative work (the “Bluescape Service”).

 

1. Term and Termination.

This Agreement shall commence on the date of Customer acceptance of the Order or the date Customer has clicked on the “Accept” button, whichever is earlier, and continue for a one year period (the “Initial Term”) and shall automatically renew for successive one year periods (each a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party notifies the other party in writing at least thirty days prior to the end of the then-current Term. If either party materially defaults in its performance of or breaches this Agreement and such default or breach is not cured within thirty days after the breaching party receives notice of such breach from the non-breaching party, the other party shall have the right to terminate this Agreement effective immediately upon written notice to the breaching party. Bluescape shall also have the right to terminate this Agreement immediately upon notice as set forth in Section 2. Upon the expiration or termination of this Agreement, Customer shall immediately cease all use of the Bluescape Service and all licenses granted hereunder shall terminate. Sections 5, 6, 7 and 8 shall survive any expiration or termination of this Agreement.

 

2. Bluescape Service.

Bluescape shall make the Bluescape Service available to Customer during the Term. Bluescape grants to Customer a nonexclusive, nontransferable, revocable, worldwide license, without right of sublicense, to access and use the Bluescape Service for Customer’s internal use as set forth in this Agreement. Bluescape shall have the right to modify the Bluescape Service, including adding or subtracting features or functionality, at any time without notice to Customer.

Bluescape shall provide Customer with the following maintenance and support (“Maintenance and Support”):

(a) Bluescape will provide Customer with access to bug fixes, updates and improvements to the Bluescape Service that are released by Bluescape for general availability to its other commercial customers (“Updates”) on a continuous basis. All Updates will be deemed to be part of the Bluescape Service for purposes of this Agreement and subject to all of the terms, conditions and restrictions of this Agreement. In connection with such Updates, Customer may be required to implement upgrades or modifications to Customer’s networks and other systems. Bluescape shall provide Customer with advance notice of all upcoming Updates which require modifications to Customer’s systems and shall work with Customer’s System Administrator (as defined below) to coordinate the release schedule and installation of such Updates. Customer shall implement all required modifications to Customer’s systems in accordance with the timing and conditions specified by Bluescape, at Customer’s sole expense.

(b) If Customer experiences a problem with the Bluescape Service, Customer may make a request for support to Bluescape’s support personnel by submitting a request (“Request”). Requests may be submitted by contacting the Bluescape support telephone desk at 888-507-0085 Monday through Friday, national holidays excluded, from 5:00 AM PST to 5:00 PM PST (“Support Hours”), or emailing Bluescape’s help desk at support@bluescape.com at any time. In connection with submitting a Request, Customer will: (i) notify Bluescape promptly of problems Customer has experienced with the Bluescape Service, and provide Bluescape with information regarding the problem sufficient to enable Bluescape to reproduce the problem; (ii) provide Bluescape with reasonable assistance, as requested, in addressing a resolution of the problem; and (iii) provide Bluescape with appropriate access consistent with Customer’s confidentiality, safety and security procedures to enable Bluescape to reproduce the problem (where any information obtained from such access shall be considered Confidential Information (as defined below of Customer). Bluescape will acknowledge receipt of a Request immediately via its automated response system, but in any event within 4 business hours. If the Request was made to report a failure of the Bluescape Service to materially function in accordance with the documentation for the Bluescape Service provided by Bluescape (“Error”), then Bluescape will use commercially reasonable efforts to promptly resolve the Error.

(c) If Bluescape becomes aware of any Error associated with the Bluescape Service that Bluescape reasonably believes may materially impact the performance of the Bluescape Service and that is not the subject of a Request, Bluescape will use commercially reasonable efforts to notify Customer of such Error and to promptly resolve the Error.

(d) Bluescape will have no obligation to provide maintenance or support services of any kind for problems in the operation or performance of the Bluescape Service to the extent caused by any of the following (“Customer-Generated Error”): (i) any data, files, database or non-Bluescape software used in conjunction with the Bluescape Service; or (ii) Customer’s use of the Bluescape Service other than as authorized in this Agreement. If Bluescape determines that it is necessary to perform services for a problem in the operation or performance of the Bluescape Service that is caused by a Customer-Generated Error, then Bluescape will notify Customer as soon as Bluescape is aware of such Customer-Generated Error. Bluescape will not commence any such services until approved by Customer. If such services are performed, Bluescape (or the applicable authorized promotion/marketing solution provider) will have the right to invoice Customer at Bluescape’s then-current published professional services rates for such services performed by Bluescape.

Bluescape will use commercially reasonable efforts consistent with prevailing industry standards to maintain the Bluescape Service to be available 99.5% in any given month. The Bluescape Service may be temporarily unavailable for scheduled maintenance (conducted weekly, typically in connection with a new release or service pack, but not during Support Hours), for unscheduled emergency maintenance, or because of other causes beyond Bluescape’s reasonable control. Bluescape will take all reasonable steps to restore the Bluescape Service as soon as is practicable after becoming aware of its lack of availability.

Customer shall (a) use the Bluescape Service only for Customer’s internal business purposes, which may include collaboration with outside agencies on Customer’s projects and collaboration with Customer’s clients; (b) limit the individuals who access and use the Bluescape Service to those authorized by Customer who have been supplied user identifications and passwords by Customer (or by Bluescape at Customer’s request) and who are either an employee, consultant, client and third party collaborator of Customer, provided the number of such individuals does not exceed the total number of users notified to Customer by Bluescape at the time Customer was presented with this Agreement (“Users”); (c) be responsible for its Users’ compliance with this Agreement; and (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Bluescape Service and promptly notify Bluescape of any such unauthorized access or use of which it becomes aware.

Customer shall not use the Bluescape Service or any component thereof except as expressly authorized in this Agreement and by applicable law. Customer shall not, and shall not instruct any person, directly or indirectly, to: (a) reverse engineer, decompile or disassemble the software used to provide the Bluescape Service, or otherwise attempt to obtain, directly or indirectly, source code for such software or any portion thereof; (b) use the Bluescape Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) use the Bluescape Service in a managed services arrangement; (d) attempt to gain unauthorized access to or use of the Bluescape Service or damage, disrupt, or impede the operation of Bluescape’s services or systems; or (e) transmit any viruses, worms, defects, Trojan horses, or any programming of a destructive nature. Bluescape reserves the right to immediately terminate this Agreement, without any further obligation to Customer and without any obligation to refund any fees previously paid (whether to Customer or to the applicable authorized promotion/marketing solution provider), if Customer tampers with or modifies the Bluescape Service without Bluescape’s prior written authorization or otherwise uses the Bluescape Service in violation of this Agreement.

 

3. Controller.

If Customer obtains a controller box (“Controller”) from Bluescape (or from the applicable authorized promotion/marketing solution provider), title to all Controllers shall at all times remain with Bluescape. Each Controller may only be used at the Customer site to which the Controller was delivered and will not be deemed a fixture or in any way part of such Customer site. Customer shall not to attach any unauthorized device to the Controller or otherwise tamper with any Controller. Bluescape shall have the right to remove or replace any Controller at any time upon reasonable notice to Customer. Customer shall bear the risk of any loss, theft, damage, or destruction of the Controllers that may occur while the Controllers are in Customer’s possession or control, excluding any reasonably wear and tear, and shall maintain the Controllers in good working order.

Upon the expiration or termination of this Agreement for any reason, Customer and Bluescape shall schedule a date on which Bluescape shall remove the Controllers from the Customer sites at Bluescape’s sole expense, which date shall be no later than thirty days after the expiration or termination of this Agreement. At such time, Bluescape shall inspect the each Controller to determine whether it has been damaged (excluding reasonable wear and tear) while in Customer’s possession or control and if a Controller has been damaged, Customer shall pay Bluescape an amount equal to the cost of repair for the damaged Controller or the full Controller replacement value, whichever is less. Bluescape shall have no responsibility to restore the Customer sites to their condition prior to the Bluescape Service’s installation.

 

4. Responsibilities.

Customer shall notify Bluescape of any failure, error or malfunction of any feature, functionality or component of the Bluescape Service (“Issue”), along with any associated error message that may appear, promptly after Customer becomes aware of them. If Customer provides Bluescape with information, feedback, suggestions and comments regarding the Bluescape Service’s features and performance (“Feedback”) Bluescape has the right, but not the obligation, to use Feedback in any way without restriction or obligation to Customer. Bluescape shall be the exclusive owner of, and shall be free to use for any purpose, any ideas, concepts, know-how, or techniques resulting from Feedback, including, without limitation, any modifications or enhancements to the Bluescape Service.

If Bluescape needs to provide any services on-site to assist Customer in its access and use of the Bluescape Service: Customer shall (a) make the on-site components of the Bluescape Service available to Bluescape during normal business hours; (b) provide Bluescape personnel storage, working space, electricity, a telephone line and any other assistance reasonably requested by Bluescape; (c) provide Bluescape with sufficient space and sufficient resources to conduct the services; and (d) ensure that the premises where the Bluescape Service is located are in a safe condition and that Bluescape’s personnel are not subject to undue risk or danger while on the premises.

Customer shall provide each Controller with access to Customer’s data and telecommunications networks as required for Bluescape to provide the Bluescape Service.

In connection with Customer’s use of the Bluescape Service, Customer will be uploading to the Bluescape Service data and content related to Customer, its projects, customers, employees or agents, including system-specific data and personal, proprietary information (collectively, “Customer Data”). Customer authorizes Bluescape to access or process the Customer Data in an encrypted state and only with Customer’s prior written consent in an unencrypted state, as required to provide the Bluescape Service and the Maintenance and Support to Customer. Customer acknowledges that access or use of the Bluescape Service does not require Customer to include any personally identifiable information (“PII”) in the Customer Data uploaded by Customer to the Bluescape Service and that any such uploading is solely at Customer’s discretion. Customer represents and warrants that it has made all disclosures and obtained all rights and permissions required to use and transfer the Customer Data within and outside the country where such Customer Data originates. Customer authorizes Bluescape to access and process Customer Data as required to provide the Bluescape Service to Customer. Customer further authorizes Bluescape to aggregate and use for Bluescape’s internal business purposes those portions of the Customer Data that relate to how Customer uses the Bluescape Service (“Statistical Data”) and permits Bluescape to disclose the Statistical Data to third parties for marketing and promotional purposes so long as the Statistical Data is disclosed only in the aggregate, does not include Customer Confidential Information (as defined below) and is not disclosed in a manner so that it would be attributable specifically to Customer, its projects or customers or in a manner that would provide the ability to identify individuals that would provide the ability to identify individuals.

Bluescape shall use commercially reasonable efforts in accordance with industry accepted standards used or observed by comparable suppliers of similar services/applications, which standards shall in no event be less than reasonable standards of care in all circumstances, to protect the security and integrity of the Bluescape Service and the Customer Data. Such standards do not include standards used to protect PII, since uploading PII is at Customer’s discretion and is not necessary to access or use the Bluescape Service. Bluescape shall promptly inform Customer of all security-related issues that threaten the security of Customer Data discovered or brought to Bluescape’s attention (“Security Issue”). Bluescape shall use all commercially reasonable efforts consistent with sound software development practices, taking into account the severity of the risk, to resolve all Security Issues as quickly as possible.

 

5. Ownership of Intellectual Property Rights.

Customer owns and shall retain all right, title and interest, including all intellectual property rights, in and to the Customer Data. Bluescape owns and shall retain all right, title, and interest, including all intellectual property rights, in and to the Bluescape Service, Maintenance and Support, Feedback, data relating to the Bluescape Service’s performance, and all intellectual property, work product, content, ideas, know-how, concepts, methods and techniques created or employed by Bluescape in the delivery of the Bluescape Service, whether pre-existing or developed in the course of providing the Bluescape Service (collectively, the “Bluescape IP”). In the event any right, title or interest arises or vests at any time in Customer to any Bluescape IP, Customer hereby assigns to Bluescape all such right, title and interest. Customer shall execute, and cause its employees and other representatives to execute, all necessary documents to give legal effect to such assignment or otherwise secure Bluescape’s ownership of the Bluescape IP. Other than the explicit rights granted herein, nothing in this Agreement shall be construed or interpreted as granting to Customer any rights or licenses, including any rights of ownership or any other proprietary rights in or to the Bluescape IP or any portion thereof, including any intellectual property rights therein.

 

6. Confidentiality.

Confidential Information” means any information that is disclosed by or on behalf of a party (the “Disclosing Party”) to the other party (the “Receiving Party”) (whether disclosed in writing, orally, by electronic delivery, by inspection of tangible objects, on office or site visits, or otherwise) that relates to the Disclosing Party’s business, finances, affiliates, licensees, licensors, customers, products, services, pricing, or intellectual property. Without limitation of the foregoing, all information relating to the Bluescape IP, including the Bluescape Service, and the terms and conditions of this Agreement shall be deemed Bluescape’s Confidential Information and all Customer Data shall be deemed Customer’s Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is generally known to the public when first disclosed by or on behalf of the Disclosing Party or thereafter becomes generally known to the public through no act or fault of the Receiving Party; (b) the Receiving Party already had obtained or obtains, without breaching any duty to the Disclosing Party, from a third party that was not under an obligation of nondisclosure; or (c) was or is independently developed by the Receiving Party without use or reference to any information obtained from the Disclosing or any party acting on behalf of the Disclosing Party, as demonstrated by the Disclosing Party’s written records.

The Receiving Party shall not: (a) reproduce the Disclosing Party’s Confidential Information; (b) use the Disclosing Party’s Confidential Information for any purpose other than to perform its obligations under and in accordance with this Agreement; or (c) disclose the Disclosing Party’s Confidential Information to any party other than an employee or independent contractor of the Receiving Party having a need to know such Confidential Information and who is under a binding obligation of confidentiality and limitation of use and disclosure consistent with the terms hereof. Neither party, nor any party affiliated with such party, shall remove any copyright or proprietary marking from the Disclosing Party’s Confidential Information.

Notwithstanding anything in this Agreement to the contrary, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law or court, or by a lawful subpoena issued by any state or Federal court, arbitral, or other governmental order or process, provided the Receiving Party: (a) gives the Disclosing Party immediate written notice as soon as it learns of such requirements in order to permit the Disclosing Party to seek a protective order or other appropriate relief; (b) assists the Disclosing Party in connection with such efforts; and (c) discloses only the Confidential Information required to be disclosed. The Receiving Party shall continue to treat any Confidential Information in accordance with this Section for all other purposes.

Each party acknowledges and agrees that in the event of any breach of this Section (either actual or threatened), remedies at law shall be inadequate. Each party agrees that in such event, the Disclosing Party shall have the right to seek specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and such rights and remedies shall be cumulative.

Upon the expiration or termination of this Agreement for any reason, each party shall return to the other party or, pursuant to the other party’s written instructions, destroy, all materials in its possession or control containing Confidential Information of the other party.

 

7. Warranty and Disclaimers.

Bluescape warrants that the Bluescape Service will achieve in all material respects the functionality described in the documentation for the Bluescape Service provided by Bluescape (“Documentation”). Customer’s sole and exclusive remedy for Bluescape’s breach of this warranty shall be that Bluescape shall be required to use commercially reasonable efforts to modify the Bluescape Service to achieve in all material respects the functionality described in the Documentation and if Bluescape is unable to so modify the Bluescape Service, Customer shall be entitled to terminate this Agreement and receive a pro-rata refund of the annual fees received by Bluescape as a result of this Agreement for the terminated portion of this Agreement (which fees may be less than the annual fees paid by Customer if Customer paid those fees to an authorized promotion/marketing solution provider). Bluescape shall have no obligation with respect to a warranty claim unless notified of such claim within 60 days of Customer’s being aware of the first instance of any material functionality problem. Any such notice must be sent to legal@Bluescape.com. The warranties set forth in this Section are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Bluescape Service has been utilized in accordance with this Agreement.

CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE BLUESCAPE SERVICE, MAINTENANCE AND SUPPORT, BLUESCAPE IP AND ALL COMPONENTS OF ALL OF THE FOREGOING ARE PROVIDED “AS IS”. BLUESCAPE DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT; (B) RELATING TO THE PERFORMANCE OF THE BLUESCAPE SERVICE OR MAINTENANCE AND SUPPORT; (C) WITH RESPECT TO ANY RESULTS TO BE OBTAINED FROM THE BLUESCAPE SERVICE OR MAINTENANCE AND SUPPORT; (D) THAT USE OF THE BLUESCAPE SERVICE SHALL BE UNINTERRUPTED OR ERROR FREE; OR (E) WITH RESPECT TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, OR EFFECTIVENESS OF ANY DATA, RESULTS, CONTENT OR OTHER INFORMATION OBTAINED OR GENERATED BY CUSTOMER THROUGH ITS USE OF THE BLUESCAPE SERVICE.

 

8. Limitation of Liability.

BLUESCAPE’S TOTAL CUMULATIVE LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, WITH RESPECT TO THE BLUESCAPE IP AND the Bluescape Service SHALL BE LIMITED TO THE FEES ACTUALLY RECEIVED BY BLUESCAPE PUSUANT TO THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM OR ACTION.

IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHETHER IN CONTRACT, IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) OR OTHERWISE RESULTING FROM ITS PERFORMANCE OR ANY FAILURE TO PERFORM UNDER THIS AGREEMENT (INCLUDING LOSS OF DATA OR LOSS OF ANTICIPATED PROFITS OR BENEFITS) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

9. Miscellaneous Provisions.

This Agreement shall be construed in accordance with California law, without reference to its conflict of law principles. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objection, including forum non-conveniens, against the state and federal courts in San Francisco County, California, for any litigation arising out of this Agreement. The parties are independent contractors and nothing in this Agreement shall be construed as establishing a joint venture, partnership, employment or agency relationship between the parties. If any provision of this Agreement is held to be invalid, illegal or unenforceable, all remaining provisions shall remain in full force and effect. With respect to its subject matter, this Agreement represents the parties’ entire agreement and supersedes all prior agreements, understandings and representations, written or oral, between the parties. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns and may not be amended except by a writing signed by the duly authorized representatives of both parties. The failure of a party to require performance of any provision of this Agreement shall in no manner affect its right to enforce the provision, and no delay or failure by either party to exercise any right or remedy shall operate as a waiver thereof. Neither party may assign or transfer (whether by operation of law, merger, consolidation, change of control or otherwise) any rights or obligations under this Agreement without the prior written consent of the other party. This Agreement may be executed in one or more counterparts and by facsimile or other electronic transmission (including via email in “portable document format”), each of which shall be deemed an original, but all of which shall constitute the same instrument. The words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” and the words “such as”, “for example” “e.g.” and any derivatives thereof shall mean by way of example and the items that follow these words shall not be deemed an exhaustive list. The descriptive headings and labels of the articles, sections, and subsections of this Agreement are for convenience and reference only and shall not affect this Agreement’s construction or interpretation.