Bluescape Subscription Agreement
Effective Date: February 1, 2019
Thought Stream LLC, dba Bluescape (“Bluescape”) has developed the Bluescape Service, a web-based subscription service that provides certain features and functionalities designed to facilitate enterprise project teams working within a collaborative visual workspace in real time and manage associated collaborative workflows (the “Bluescape Service”).
Our Subscription Agreement is a legal agreement between Bluescape and the entity (“Customer”) that obtains the right to access and/or use Bluescape Service whether directly from Bluescape or indirectly through one of its resellers (in either case, “Seller”).
By accepting this Subscription Agreement you represent and warrant that you have the authority to bind Customer, and you are agreeing on Customer’s behalf to be bound by all the terms and conditions of this Subscription Agreement. By use or access of the Bluescape, Customer agrees to the terms and conditions below. If you do not agree, Customer will not access or use the Bluescape Service. Please note that if the Customer has a separate written agreement with Bluescape for Customer’s (and its Users’) access and use of the Bluescape Service, then to the extent that the terms and conditions of the prior written agreement directly contradict this Subscription Agreement, the terms and conditions of the prior written agreement will govern.
1.1 Orders. The details of Customer’s subscription shall be as set forth in an ordering document offered by Seller and accepted by Customer, and will set forth the specific details and parameters of the Bluescape Service being ordered, including, as applicable, the License Type and License Term, Controllers, Users, Training, Maintenance and Support, Uptime Commitment, and any other details, restrictions, or limitations. Orders may be in paper form, or may be provided online, and upon mutual acceptance will be incorporated by reference into, and made a part of, this Subscription Agreement. In the event that Seller agrees to accept an Order submitted on Customer’s form of ordering document (purchase orders, etc.), any additional or conflicting terms provided thereon will be expressly rejected. Upon execution (through the mechanism provided in the applicable offer), Orders shall be deemed incorporated by reference into, and made a part of this Subscription Agreement.
1.2 Provision of Bluescape Service. Bluescape shall make the Bluescape Service available to Customer during the term identified in the Order (“License Term”) pursuant to the terms and conditions of this Subscription Agreement. The Bluescape Service includes those components and features set forth in the license package identified in each Order (a current list of which is available online at https://support.bluescape.com/BluescapeLicense_Types) (the “License Type”), which may include a controller box (the “Controller”), along with all then-current user manuals or other documentation provided by Bluescape (“Documentation”). Bluescape shall have the right to modify the Bluescape Service, including adding or subtracting features or functionality, at any time without notice to Customer. Any license identified in the applicable package or Order as evaluation, beta, test, trial, or similar designation (“Eval Licenses”) are provided on limited terms and are offered on an as-is, where-is basis without warranty, liability, or service commitment of any kind, and accordingly Sections 1.5, 1.6, 3.6, 7.1, and 8.1, nor any other commitment or obligation of Bluescape with respect thereto shall not apply. Unless otherwise specified in the applicable Order or expressly renewed by mutual agreement in writing, Eval Licenses expire after ninety (90) days. Unless otherwise specified in the applicable Order, all other License Types are granted for an initial License Term of one (1) year, which term will automatically renew for subsequent one (1) year periods unless either party provides written notice of non-renewal at least thirty (30) days prior to expiration and use or access by Customer does not continue beyond the one (1) year period. The License Term commences upon execution of an Order, or, if a Controller is included in the Order, the earlier of Customer informing Bluescape of which Supported Hardware it intends to run the Bluescape Service on and applicable shipping details, and Bluescape shipping a compatible Controller, or fifteen (15) days following the execution of the Order. Customer acknowledges that the License Term will commence as provided in the prior sentence even if Customer has not procured Supported Hardware or notified Bluescape of its selection or shipment address.
1.3 Authorized Users. “Users” means individuals authorized by Customer to use the Bluescape Service who have been supplied user identifications and passwords by Customer (or by Bluescape at Customer’s request), including Customer’s employees, consultants, clients and third party collaborators. An Order may designate specific types of Users. The Bluescape Service may be accessed and used by no more than the total number of Users set forth on the applicable Order (including a limit to any specific type of User); provided however, that Customer may add additional Users at the pricing set forth in the applicable Order, pro-rated for the remainder of the applicable annual period at the time such additional Users are added.
1.4 Training. Bluescape shall provide training to Customer in the Bluescape Service’s use as described in an Order (“Training”).
1.5 Availability of Bluescape Service. Bluescape will use commercially reasonable efforts consistent with prevailing industry standards to maintain the Bluescape Service to be available 24 hours per day, 7 days per week, including holidays. 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 (as defined below)), 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. If the Bluescape Service is available less than 99.5% in any given month (excluding any scheduled or emergency maintenance or interruptions beyond Bluescape’s reasonable control) (“Uptime Commitment”), Bluescape will provide Customer with a credit, equal to 3 days of the Fees paid for the Bluescape Service for each increment of 4 consecutive hours during which the Bluescape Service was unavailable during the previous month. This credit is Customer’s sole and exclusive remedy for a service interruption to the Bluescape Service. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE BLUESCAPE SERVICE IS PROVIDED ON AN “AS AVAILABLE” BASIS.
1.6 Maintenance and Support. Bluescape shall provide Customer with the following maintenance and support for the Bluescape Service (“Maintenance and Support”). Customer agrees and acknowledges that the Bluescape Service is designed to operate on supported hardware, a current list of which may be accessed online at https://support.bluescape.com/BluescapeSupport_Partners (“Supported Hardware”). Regardless of whether Maintenance and Support has been ordered and paid for, Maintenance and Support services are not available for implementations of the Bluescape Service on unsupported hardware.
(a) Customer acknowledges that Bluescape shall 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 Subscription Agreement and subject to all of the terms, conditions and restrictions of this Subscription 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 firstname.lastname@example.org 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 a commercially reasonable time thereafter. If the Request was made to report a failure of the Bluescape Service to materially function in accordance with the Documentation (“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) Except as set forth above, no other support services are provided by Bluescape. 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 Subscription 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 will have the right to invoice Customer at Bluescape’s then-current published professional services rates for such services performed by Bluescape.
1.7 Additional Services. Bluescape shall provide installation services with respect to the Bluescape Service and may provide other services set forth in an Order (“Additional Services”).
2. Use of the Bluescape Service
2.1 Use. 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) be responsible for its Users’ compliance with the applicable License Type and the terms and conditions of this Subscription Agreement and any additional requirements and limitations set forth in the applicable Order; and (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Bluescape Service and shall promptly notify Bluescape of any such unauthorized access or use of which it becomes aware.
2.2 Restrictions. Customer shall not use the Bluescape Service or any component thereof except as expressly authorized in this Subscription Agreement, the applicable Order, 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 contained in the Controller, or otherwise attempt to obtain, directly or indirectly, source code for such software or any portion of such software; (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; or (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 Subscription Agreement (or any applicable Order), without any further obligation to Customer and without any obligation to refund any Fees previously paid, 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 Subscription Agreement.
2.3 Controller. Title to all Controllers shall at all times remain with Bluescape. Each Controller may only be used at the Customer Site set forth on the applicable Order 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 the Controllers. Bluescape shall have the right to remove or replace the Controllers 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 and free and clear of any and all liens and encumbrances.
3.1 Feedback. 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. All Feedback shall be provided to Bluescape to the telephone and email support contacts specified in Section 1.5.
3.2 Onsite Support. If Bluescape shall provide Training or Maintenance and Support on-site at a Customer Site, Customer agrees (a) Customer shall make the on-site components of the Bluescape Service available to Bluescape during normal business hours; (b) Customer shall provide Bluescape personnel storage, working space, electricity, a telephone line and any other assistance reasonably requested by Bluescape; (c) Customer shall provide Bluescape with sufficient space and sufficient resources to conduct Training; and (d) the premises where the Bluescape Service is located are in a safe condition and that Bluescape’s personnel shall not be subject to undue risk or danger while on the premises.
3.3 Single Point of Contact. Customer shall designate a single point of contact who shall be responsible for coordinating all interactions between Customer and Bluescape (the “Customer Project Manager”) and a single point of contact who shall be responsible for all technical issues regarding the Bluescape Service and its interaction with Customer’s systems, such as network access issues, Updates, and the like (the “System Administrator”).
3.4 Access to Customer Network. Customer shall provide the Bluescape Controller with access to Customer’s data and telecommunications networks as required for Bluescape to provide the Bluescape Service.
3.5 Customer Data. All data that Customer either utilizes or uploads in connection with usage of any Bluescape Service is defined as (“Customer Data”). Customer will have sole discretion as to which Customer Data it will utilize in connection or use of the Bluescape Service. Customer Data is the sole property of Customer. Customer covenants, represents and warrants that it will comply with (a) its applicable privacy and security policy(ies) and (b) all applicable federal, state, local and international privacy, data protection, and security laws, rules and regulations, including without limitation, laws relating to the collection, use, reuse, processing, storage, security, protection, handling, cross-border transfer and disclosure of personal or regulated data. Customer covenants, represents and warrants that it has all rights and has obtained all necessary consents, permissions and authorization with respect to Customer Data, including without limitation the provision of Customer Data to Bluescape and the collection, use, reuse, processing, storage, security, protection, handling, cross-border transfer and disclosure of personal or regulated data of the Customer Data in connection with Bluescape’s provision of the Services, including but not limited to, Statistical Data as set forth in Section 5.4 above. 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.
3.6 Security. 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 Customer Data. To the extent that Customer Data is subject to EU General Data Protection Regulation (“GDPR”), Bluescape shall process Customer Data in accordance with GDPR Processing Terms & Conditions, which such terms and conditions may be found at https://bluescape.com/gdpr-processing-terms/. Unless prohibited by law, 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.
4. Fees and Payment
4.1 Fees. Customer shall pay Seller the fees set forth in all Orders (the “Fees”). All Fees are nonrefundable, except as provided in Section 10.4.
4.2 Additional Costs and Expenses.
(a) All Fees are exclusive of (i) taxes, including import or export duties, sales, use, value-added, withholding and excise taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes”) and (ii) shipping and handling charges and insurance. Customer shall pay all such Taxes, charges and insurance, excluding Taxes based on net income of Bluescape or the reseller. If Bluescape has the legal obligation to pay or collect Taxes for which Customer is responsible, such Taxes shall be included on Bluescape’s invoices to Customer and Customer shall pay such Taxes to Bluescape, unless Customer provides Bluescape with a valid tax exemption certificate authorized by the appropriate taxing authority.
(b) Customer shall reimburse Bluescape for all reasonable travel and living expenses incurred by Bluescape in performing Training, Maintenance and Support or any Additional Services on-site, including transportation, lodging, meals, and other incidental expenses, provided that Customer has first authorized such expenses, which authorization shall not be unreasonably withheld. Bluescape shall invoice Customer for any such expenses on a monthly basis.
4.3 Invoices and Payments. Bluescape shall invoice Customer for the Fees according to the schedule set forth in the applicable Order. All Fees shall be due and payable within thirty (30) days after receipt of Bluescape’s corresponding invoice. All payments shall be in U.S. Dollars.
4.4 Late Fees. If Customer fails to pay any Fees or other charges due by their applicable due date, at Bluescape’s discretion, such charges may accrue late charges at the rate of one point five percent (1.5%) of the outstanding balance per month or the maximum rate permitted by law, whichever is less, from the date such payment was due until the date paid. All amounts paid shall first be applied against any late charges due, with the balance applied against the outstanding Fees and charges.
4.5 Suspension of Service. If any undisputed Fees or charges are overdue more than thirty (30) days (whether by Customer to Bluescape or a reseller, or by the applicable reseller to Bluescape), Bluescape shall have the right upon written notice to Customer, without limiting its other rights and remedies, to suspend the Bluescape Service and Additional Services until such amounts are paid in full. Customer shall hold harmless Bluescape and waives any claim or cause of action against Bluescape with respect to any service disruption as a result of a reseller’s failure to pay any applicable fees to Bluescape, and Customer’s sole claim and remedy shall be with the applicable reseller.
4.6 Audits. During the Term, Customer shall maintain accurate and complete records with respect to its use of the Bluescape Service. Bluescape shall have the right, at its own expense, not more than once per year, on reasonable notice to Customer, to perform an audit of such records in order to confirm Customer’s compliance with the terms of this Subscription Agreement, including the number of authorized Users. Any such audit shall be conducted during normal business hours and in a manner designed to not unreasonably interfere with Customer’s ordinary business operations. If an audit discovers that Customer has exceeded the number of authorized Users set forth in the Orders, Customer shall promptly pay Bluescape the Fees due for such additional Users in addition to Bluescape’s reasonable costs of such audit.
5. Ownership of Intellectual Property Rights
5.1 Limited License. Bluescape grants to Customer a nonexclusive, nontransferable, revocable, worldwide license, without right of sublicense, to access and use the Bluescape Service and any Additional Services for Customer’s internal use as set forth in this Subscription Agreement. The foregoing license and Customer’s use of the Bluescape Service and any Additional Services are also subject to any and all Documentation.
5.2 Ownership by Bluescape. Bluescape owns and shall retain all right, title, and interest, including all intellectual property rights, in and to the Bluescape Service Training, Maintenance and Support, Additional Services, all Feedback, all data relating to the Bluescape Service’s and Additional Services’ 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 and Additional Services, whether pre-existing or developed in the course of providing the Bluescape Service and Additional Services (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 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.
5.3 Ownership of Customer Data. Customer owns and shall retain all right, title and interest, including all intellectual property rights, in and to the Customer Data.
5.4 Statistical Data. Notwithstanding Section 5.3, Bluescape may aggregate and use for Bluescape’s internal business purposes those portions of the Customer Data that relate to how Customer uses the Bluescape Service and Additional Services (“Statistical Data”) and may 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 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.
5.5 Reservation of Rights. Other than the explicit rights granted in this Subscription Agreement, nothing in this Subscription 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, including any intellectual property rights.
6.1 Definition. “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 Additional Services, 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.
6.2 Obligations. 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 Subscription 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 other party’s Confidential Information.
6.3 Required Disclosure. Notwithstanding anything in this Subscription 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 disclosed pursuant to this Section 6.3 as Confidential Information for all other purposes.
6.4 Right to Equitable Relief. Each party acknowledges and agrees that in the event of any breach of this Section 6 (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.
7. Warranties and Disclaimers
7.1 Bluescape Warranty. Bluescape warrants that the Bluescape Service will achieve in all material respects the functionality described in the 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 Subscription Agreement and receive a pro-rata refund of the annual Fees pre-paid under this Subscription Agreement for the Bluescape Service for the terminated portion of the Subscription Agreement. 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 Subscription Agreement.
7.2 Customer Warranty. Customer warrants that it has the full right, power, and authority to allow its Users use the Bluescape Service, including to provide and make available all applicable data and information to Bluescape for the purpose of providing the Bluescape Service, and that Bluescape’s use of such data and information in providing the Bluescape Service to Customer and its Users as provided herein does not and will not infringe, misappropriate, or otherwise violate any right (including intellectual property rights, privacy rights, publicity rights, trade secrets, or contractual rights), or any applicable law or regulation. Customer agrees to defend, indemnify, and hold harmless Bluescape from and against any and all claims, losses, damages, and harms of any kind arising out of or relating to any violation or alleged violation of the foregoing.
7.3 Disclaimer of Warranties. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE BLUESCAPE SERVICE, TRAINING, MAINTENANCE AND SUPPORT, ADDITIONAL SERVICES, THE 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 TRAINING, MAINTENANCE AND SUPPORT, OR ADDITIONAL SERVICES; (C) WITH RESPECT TO ANY RESULTS TO BE OBTAINED FROM THE BLUESCAPE SERVICE, TRAINING, MAINTENANCE AND SUPPORT, OR ADDITIONAL SERVICES; (D) THAT USE OF THE BLUESCAPE SERVICE AND ADDITIONAL SERVICES 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 AND ADDITIONAL SERVICES.
8.1 By Bluescape. Bluescape shall indemnify, defend and hold harmless Customer (and its officers, directors, employees, shareholders and agents) from and against any and all third party claims, actions, suits, proceedings, liabilities, losses, damages, fines, injuries, interest or expenses (including reasonable attorneys’ fees and costs of investigation and defense) (“Losses”) arising from or relating to any claim that the Bluescape Service and Additional Services, when used as permitted in this Subscription Agreement, violate or infringe any intellectual property rights of any third party.
8.2 By Customer. Customer shall indemnify, defend and hold harmless Bluescape (and its officers, directors, employees, shareholders and agents) from and against any Losses arising from or relating to the actual or alleged violation or infringement of any intellectual property, privacy rights of any third party, or breach of Section 3.5 herein wherein such Losses arise from or relate to the use or reference of Customer Data or any other materials provided to Bluescape.
8.3 Defense. The obligation to indemnify under this Agreement is conditioned on the party receiving the benefit of the indemnity (the “Indemnified Party”) providing the party with the obligation (the “Indemnifying Party”) with (a) prompt written notice of covered claim, action, suit or proceeding (“Claim”); (b) sole control and authority over the defense or settlement of such Claim; and (c) proper and full information and reasonable assistance to defend and/or settle any such Claim. The Indemnifying Party may not settle any such Claim in any manner that binds the Indemnified Party without the Indemnified Party’s prior written consent. Notwithstanding the foregoing, the Indemnified Party may, at its own expense, participate in the defense and settlement of any such Claim.
8.4 Infringement. In the event that a claim subject to Section 8.1 is made or threatened, or Bluescape reasonably believes that Customer’s use of the Bluescape Service or any Additional Service is likely to be infringing, Bluescape, at its option and expense, may either (a) secure for Customer the rights necessary to continue to use the applicable Service; (b) modify such Service so that it becomes non-infringing, (c) replace the potentially infringing portion of such Service with a functionally equivalent non-infringing product or service; or (d) if Bluescape determines that none of the foregoing options are reasonably practicable, immediately terminate this Subscription Agreement. This Section 8 sets forth Bluescape’s entire liability and obligation, and Customer sole and exclusive remedy with respect to any claims of infringement or misappropriation of any intellectual property rights of any other party.
8.5 Exceptions. Notwithstanding the provisions of Section 8, Bluescape shall have no obligation to indemnify Customer with respect to any Losses to the extent resulting from (a) the combination of the Bluescape Service or any Additional Service or portions thereof with products or services not provided by Bluescape or reasonably anticipated to be used in conjunction with the Bluescape Services or Additional Services; (b) the modification of the Bluescape Service or any Additional Service by any party other than Bluescape; or (c) the use of the Bluescape Service or Additional Services in a manner not expressly permitted by this Subscription Agreement.
9. Limitation of Liability
9.1 Limitation of Cumulative Liability. EXCEPT FOR BLUESCAPE’S LIABILITY UNDER SECTION 8.1, BLUESCAPE’S TOTAL CUMULATIVE LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, WITH RESPECT TO THE BLUESCAPE IP, THE BLUESCAPE SERVICE AND THE ADDITIONAL SERVICES PROVIDED UNDER THIS SUBSCRIPTION AGREEMENT SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER TO BLUESCAPE UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM OR ACTION.
9.2 Waiver of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SUBSCRIPTION AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS REVENUE, LOSS PROFITS, LOSS BUSINESS) 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 SUBSCRIPTION 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.
10. Term and Termination
10.1 Term. The term of this Subscription Agreement shall commence on the earlier of the date of execution of the first applicable Order, or the date the first user creates an account or otherwise accesses or commences use of the Bluescape Service and lasts until the termination or expiration of all License Terms under all applicable Orders executed hereunder (the “Term”). Bluescape shall provide Customer with written notice of any increases in the Fees for any Renewal Term at least sixty (60) days prior to the end of the then-current License Term.
10.2 Termination for Cause. If at any time during the Term, either party materially defaults in its performance of or breaches any of the terms and conditions of this Subscription Agreement and such breach is not cured within thirty (30) 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 Subscription Agreement (and any and all Orders then in effect) effective immediately upon written notice to the breaching party.
10.3 Termination by Bluescape. Bluescape shall have the right to terminate this Subscription Agreement (or any applicable Order(s) then in effect) immediately upon notice as set forth in Section 2.2 and 8.3.
10.4 Effect of Termination. Upon the expiration or termination of this Subscription Agreement for any reason,
(a) Customer shall immediately cease all use of the Bluescape Service and the Additional Services and all licenses granted under this Subscription Agreement shall terminate.
(b) 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 (30) days after the expiration or termination of this Subscription Agreement. At such time, Bluescape shall inspect 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.
(c) Except with respect to termination by Customer for Bluescape’s breach, within thirty (30) days of such expiration or termination, Customer shall pay all outstanding amounts then due, including any amounts due for damaged Controllers;
(d) In the event of termination by Customer for Bluescape’s breach or pursuant to Section 11, Bluescape shall refund to Customer any pre-paid Fees covering the remainder of the Term;
(e) 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; and
(f) The following provisions shall survive: 4.3, 4.4, 5.2-5.4, 6, 7.2, 8, 9, 10.4 and 12.
11. Force Majeure
Neither party shall be liable to the other party for any failure to perform, loss of data or service, or any delay in performance under this Subscription Agreement if such failure or delay arises from any act beyond a party’s reasonable control, such as, but not limited to, natural disasters or other acts of God, wars, fires, riots, strikes, acts of any governmental authority in its sovereign capacity (including legislation that makes performance herein impossible, impractical, or economically unreasonable), lockouts, labor disputes, accidents, malicious damage caused by a third party to technology deployed or used by Bluescape, or the breakdown, failure or malfunction of any telecommunications, computer or other electrical, mechanical or technological service or system (“Force Majeure Event”). A party shall give prompt written notice to the other party of any Force Majeure Event and shall work diligently to resolve such event. In the event a Force Majeure Event continues for more than sixty (60) days, either party shall have the right to terminate this Subscription Agreement for convenience.
12. Miscellaneous Provisions
12.1 General. This Subscription Agreement shall be construed in accordance with California law, without reference to its conflict of law principles. The parties 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 Subscription Agreement shall be construed as establishing a joint venture, partnership, employment or agency relationship between the parties. In the event that any provision of the Subscription Agreement shall be determined to be illegal or unenforceable, a modified provision or written agreement shall be substituted which carries out as nearly as possible the original intent of the parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby. With respect to its subject matter, this Subscription Agreement (together with its Exhibits and all Orders, all of which are incorporated into this Subscription Agreement by reference) represents the parties’ entire agreement and supersedes all prior agreements, understandings and representations, written or oral, between the parties. This Subscription 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 Subscription 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. Except as expressed herein, neither party may assign or transfer (whether by operation of law, merger, consolidation, change of control or otherwise) any rights or obligations under this Subscription Agreement without the prior written consent of the other party. This Subscription 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.
12.2 Notices. Any notice, request or communication required or permitted to be given under this Subscription Agreement shall be in writing and shall be deemed to be given when actually received if delivered personally or by facsimile or electronic mail, two (2) business days after the date deposited with the U.S. postal service if sent by certified or registered mail, or one (1) business day after the date delivered to a reputable next-day courier service.
12.3 Conflict. To the extent of any conflict or inconsistency between this Subscription Agreement and any Exhibit, Order, or any other document related to the parties’ obligations under this Subscription Agreement, the terms of this body of this Subscription Agreement shall govern unless otherwise expressly agreed by the parties in writing. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order) shall be incorporated into or form any part of this Subscription Agreement, and all such terms or conditions shall be null and void.\
12.4 Interpretation. 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 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 Subscription Agreement are for convenience and reference only and shall not affect this Subscription Agreement’s construction or interpretation.