For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties further agree as follows:
1. In General. These Terms and Conditions govern any and all SOW’s entered into between BlueHornet and Client in connection with the BH-Provided Service(s) to be provided by BlueHornet to Client and the fees associated with such service(s). These Terms and Conditions will automatically be incorporated by reference into such SOW, and all references herein to the “SOW” shall be construed as references to the Agreement. These Terms and Conditions, by themselves, do not give the Client any right to use any BH-Provided Services.
2. Definitions. The following definitions shall apply to the Agreement:
2.1. Acceptable Use Policy or AUP: The Acceptable Use Policy for the BH-Provided Services, which is incorporated by reference into and is made a part of the Agreement. BlueHornet may amend the AUP at any time as stated in the AUP.
2.2. Affiliate: Any entity which directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Party in question, as the case may be.
2.4. BH-Provided Services: The Web Services and any other services provided by, or on behalf of, BlueHornet as specified in these Terms and Conditions and the SOW, in any combination.
2.5. BlueHornet Materials: Any materials (including without limitation documentation) provided by BlueHornet for use by Client in connection with the BH-Provided Services, all of which materials, including all Rights therein, shall be exclusively owned by BlueHornet.
2.6 Client’s Monthly Service Fee. Are those fees which Client is obligated to pay to BlueHornet and as described with more particularity in the SOW.
2.7 Commitment Levels: Are those level of services committed for purchase by Client and as described with more particularity in the SOW.
2.8. Confidential Information: The inventions, trade secrets, computer software in both object and source code, algorithms, documentation, know how, technology, ideas, and all other business, customer, technical, and financial information owned by BlueHornet or Client, which are designated as confidential, or communicated in such a manner or under such circumstances as would reasonably enable a person or organization to ascertain its confidential nature.
2.9. Content: Any data, images, programming, computer code, photographs, illustrations, graphics, audio clips, video clips, or text used on the Site(s) and/or provided to BlueHornet by Client for incorporation into and/or transmission or posting using the BH-Provided Services (or as otherwise provided in the Agreement), including, but not limited to, any and all marketing, advertising, and promotional materials, technical information, and product descriptions.
2.10 List. The database that is comprised of Client’s list of Recipients.
2.11. Monthly Service Fees: Those certain recurring monthly fees payable to BlueHornet for the use of and access to the BH- Provided Services, as set forth in the Agreement.
2.13. Recipient: Any person to whom Client or Client’s Authorized Users send communications using the Web Services.
2.14. Rights: Any and all rights of copyright, patent rights, trademark and service mark rights, trade secret rights, trade dress rights, character rights, artistic and moral rights, and any and all other proprietary rights of any kind whatsoever, together with associated registration rights and rights to sue for and collect damages for any infringement or violation of any of the foregoing.
2.15. Site(s): The websites for which BH-Provided Services may be used by Client, as identified in the SOW. For the avoidance of doubt, each top-level domain (e.g., a.com, b.com, etc.) or subdomain (e.g., a.bluehornet.com, b.bluehornet.com, etc.) shall be considered a separate Site, and must be specifically stated in the Agreement. Client may add additional Sites by providing notice to BlueHornet, provided that BlueHornet reserves the right to reject additional Sites if BlueHornet determines, in its sole and reasonable discretion, that the addition of such Site(s) could subject BlueHornet to legal or business risk.
2.16. Trademarks: The trademarks, service marks, trade dress, trade names, and logos used by BlueHornet and/or Client, as applicable, in connection with BlueHornet’s provision of the BH-Provided Services under the Agreement.
2.17. Web Services: The Internet-based data storage and communication services to be provided by BlueHornet to Client hereunder, as more particularly described in the SOW. Web Services include a core set of functionality that (a) facilitates campaign creation and deployment; (b) provides access to list management tools for building recipient lists; (c) provides access to content tools for the development of message design and personalization; (d) enables access to reporting tools; and (e) enables Client and its Authorized Users to send emails in connection with email marketing campaigns. Web Services exclude customized applications. BlueHornet may, in its sole discretion, modify, replace, or add to the Web Services described herein (including without limitation improving or adding new or changed features or functionality (or both) to the Web Services) from time to time without notice, but shall not materially reduce the features and functionality available through the Web Services during the term of this Agreement. BlueHornet will use commercially reasonable efforts to provide prior notice to Client in writing or by email of any material changes to the core Web Services.
3. Grant of Rights by BlueHornet; BlueHornet Obligations. Subject to the terms and conditions of the Agreement, for the Term of the Agreement BlueHornet grants to Client a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, limited right to access and use the BH-Provided Services selected in the Agreement for the Client’s internal business purposes. Client agrees and acknowledges that the grant of rights is a right of use of the BH-Provided Services only, and that right, title, and interest in and to the BH-Provided Services (including without limitation any enhancements, developments, and improvements or changes thereto whether suggested or requested by Client or otherwise, and any BlueHornet Materials provided to Client by BlueHornet) and any rights not granted herein shall remain with, and are expressly reserved to, BlueHornet or its licensors or subcontractors. No improvements, enhancements or developments to the BH-Provided Services shall be considered “works made for hire,” even if paid for by Client. The BH-Provided Services and the intellectual property operating it are protected by international copyright treaties. The BH-Provided Services are provided as an online service only, and Client shall have no right whatsoever to receive, review, or otherwise use or have access to the source or object code for the BH-Provided Services. This grant of rights by BlueHornet is made solely to Client for specific use with the Sites and Monitored Site(s) specified in the Agreement, and not, by implication or otherwise, to any parent, subsidiary or affiliate of Client.
3.1. Ownership of Lists. Client shall retain ownership of the List (including any derivatives thereof), and Client grants BlueHornet the right to use the List solely to perform its services under the Agreement, and only for the benefit of Client. Client will have access to a control panel that provides List management services for uploads and downloads of new names and End Users who have unsubscribed from the List.
3.2. Recipients. BlueHornet will not provide any information collected from Recipients to any person, or use such Recipient information for any purpose other than for: (1) BlueHornet’s legitimate internal business purposes; or (2) fraud control; or (3) the use of Recipient data by BlueHornet in anonymous or aggregate form to determine “Industry Averages”; or (4) other analyses in connection with opens, clicks, bounces, opt-outs in order to provide benchmarks or for other purposes of analytic importance.
4. Client’s Rights and Obligations.
4.2. Username and Password. Client agrees and acknowledges that it is solely responsible for all activities that occur under its BH-Provided Services password(s) or account(s) provided to Client. Without limiting the foregoing, it is Client’s sole responsibility to keep its password(s) and/or account information strictly confidential except as necessary for use by Authorized Users. Client agrees that each Authorized User shall have a distinct username and password in order to track each Authorized User’s use of the Web Services and avoid unauthorized use of the Web Services. Client shall be solely responsible for any authorized or unauthorized access to its account by any person. If any unauthorized use of Client’s account(s) or password(s) occurs, Client must immediately notify BlueHornet of such unauthorized use via phone and/or email.
4.3. Trademarks. Client grants to BlueHornet the right to use those of its Trademarks supplied by Client to BlueHornet for the purpose of BlueHornet’s performance of its obligations under the Agreement. In the event that Client supplies BlueHornet with Trademarks owned by third parties other than Client or BlueHornet, Client represents that it has secured the right to use such Trademarks in connection with the Web Services from such third party owner(s). BlueHornet agrees to use such materials only in the form and with appropriate legends as reasonably prescribed by Client.
4.4. Content. Client will provide BlueHornet with any Content that Client desires to use in conjunction with the BH-Provided Services, in print-ready and/or electronic file formats (e.g., .txt, .gif, .jpg), as reasonably specified and accessible by BlueHornet. Client hereby grants to BlueHornet and its subcontractors a non-exclusive, non-transferable, royalty-free license to use Client’s Content solely for the purpose of, and to the extent necessary for BlueHornet’s provision of the BH- Provided Services and as is otherwise allowed under this Agreement.
4.5. Publicity. Neither Party may issue any press release regarding the subject matter of the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld (except consent shall not be required for disclosures to comply with any state or federal reporting requirement, e.g., those of the Securities and Exchange Commission, or any Board of Exchange on which a Party’s stock is traded, which shall not be considered a breach of Section 7). Client gives its approval and consent for BlueHornet (and it subcontractors who provide BH-Provided Services to Client) to include Client’s name and/or logo in their client lists and refer to Client in marketing materials and business conversations as a client.
4.6. Restricted Users. Client further represents and warrants to BlueHornet that it is not a Restricted User. For purposes of the Agreement, a “Restricted User” is any person, organization or entity, or any officer, director, or controlling shareholder of an organization or entity, who or which (1) is a national of or an entity existing under the laws of an embargoed country as proscribed by, or is designated as a Specially Designated National or institution of primary money laundering concern by, the U.S. Treasury Department; (2) is listed on the Denied Persons List or Entity List maintained by the U.S. Commerce Department; (3) is engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (4) is owned, controlled, or acting on behalf of a Restricted User. If Client is or becomes a Restricted User during the term of the Agreement, Client shall immediately notify BlueHornet, and BlueHornet shall have an immediate right to terminate this Agreement upon notice to Client.
4.7. Government Rights. If the BH-Provided Services are used by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 and/or 48 C.F.R. 2.101 and 12.212, the U.S. Government’s rights in the BH-Provided Services, including its rights to use, modify, reproduce, release, perform, display or disclose the same, is subject in all respects to the commercial license rights and restrictions provided in the Agreement.
4.8 Annual Email Commitment: (1) Included Emails per Annual Period described above at “Annual Email Commitment” –The “Monthly Service Fee” set forth above includes the sending of the number of emails set forth above (the “Included Emails”) during each consecutive twelve (12) month period commencing with the Effective Date (each, an “Annual Period”). Any emails sent by Client through the BH-Provided Services (including core Web Services or optional features, services or programs) or automatically by the Web Services (e.g., transaction confirmations) during each Annual Period (for each Annual Period, the “Aggregate Period Email Volume”) will count towards the determination of the total number of emails sent via the Web Services for the purposes of calculating any applicable Email Overage Fees as defined below. Allowed but unused email volume during a given Annual Period may not be carried forward into subsequent Annual Periods.
If in any given calendar month Client’s Aggregate Period Email Volume exceeds the Included Emails for that Annual Period set forth above, then
(a) the unpaid Monthly Service Fee installments for that Annual Period shall accelerate and become immediately due and payable to BlueHornet upon Client’s receipt of invoice; and
(b) at the end of that calendar month and each subsequent calendar month for the remainder of such Annual Period BlueHornet shall invoice Client for, and Client shall pay, an additional fee equal to the number of excess emails sent by or on behalf of Client through the Web Services during that calendar month, multiplied by an email overage fee listed above (the “Email Overage Fee”).
4.9 Account Management Support. The Pre-defined number of hours per calendar month listed above of assigned, non-dedicated Account Development Coordinator or Account Development Manager resources (as determined by BlueHornet based on Client’s needs) for the general support of Client’s use of the Web Services provided by BlueHornet. Accrued but unused support services hours during a given month may not be carried forward into subsequent months.
5. Fees and Payments. Except to the extent access to certain BH-Provided Services is granted pursuant to a free trial as may be specified in the SOW (a) Client agrees to pay BlueHornet those one-time fees, Monthly Service Fees, and other fees and amounts specified in the SOW, and (b) BlueHornet shall promptly enable Client’s access to the BH-Provided Services upon Client’s payment of any applicable one-time fees and/or account activation fees (as applicable).
Unless otherwise specified, all invoiced amounts shall be due and payable no later than thirty (30) days from the date of the subject invoice. Each payment of any and all fees and charges due hereunder shall be made in the manner specified in the Agreement, or by such other means as may be approved by BlueHornet in writing or by email. If Client does not object in writing to an invoiced amount within thirty (30) calendar days of a given invoice or statement, Client shall be deemed to have acknowledged the correctness of that invoice or amount and to have waived its right to dispute that invoice or amount. Late payments will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum amount permitted by law, whichever is less. Client shall be liable for all collection expenses incurred by BlueHornet, including reasonable attorneys’ fees. Client’s dispute as to a portion of any invoice or amount owed shall not give Client the right to withhold or delay payment of the whole invoice or amount owed. BlueHornet will have no obligation to perform any of its obligations under the Agreement if Client fails to make any timely payment, following its receipt of notice of the nonpayment and a five (5) business day opportunity to cure, and BlueHornet will have the right in its sole discretion, without liability to Client, to either (a) suspend performance of any of its obligations under the Agreement for so long as the payment remains outstanding, or (b) terminate the Agreement.
All travel and out-of-pocket expenses pre-approved by Client and incurred by BlueHornet personnel in connection with the performance of the Agreement shall be reimbursed by Client; all expenses not billed directly to Client shall be submitted for reimbursement together with original vendor receipts.
In the event any state or governmental entity imposes sales, use, or other transaction-based taxes upon users of the BH-Provided Services, Client acknowledges that the fees set forth herein do not include such taxes, and Client shall be responsible for payment of any such taxes required to be collected by BlueHornet in addition to the fees set forth herein, specifically excluding any taxes based on, measured by or with respect to the net or gross income of BlueHornet.
BlueHornet and Client may mutually agree in writing or by email on any change to Client’s Commitment Level or additional services to be provided by BlueHornet. BlueHornet may only adjust the Monthly Service Fee payable by Client under the Agreement effective as of the commencement of a renewal term, and in each event upon advance notice of not less than thirty (30) calendar days prior to the commencement of such renewal term. Client may terminate the Agreement upon written notice to BlueHornet within thirty (30) calendar days of its receipt of such notice from BlueHornet to adjust the Monthly Service Fees; provided, however, that if Client fails to object to such adjustment in writing within the foregoing thirty (30) calendar days, then Client will be deemed to have agreed to the adjustment.
5.1. Cancellation Fee. The Parties agree that in the event that (a) Client breaches the terms of the Agreement, is given written notice of said breach, and fails to cure said breach within thirty (30) days of the date of the notice, or (b) following the end of any applicable Trial Period Client purports to terminate this Agreement without cause (despite Client having no right of termination without cause hereunder) prior to the end of the Initial Term or a Renewal Term, BlueHornet will be entitled to recover as liquidated damages (and not a penalty) an amount calculated based on the average Monthly Service Fees due from Client to BlueHornet over the last twelve (12) consecutive months prior to the date of the written notice of breach or date of termination (as applicable), times the number of months left from such date until the last day of the then current Initial Term or Renewal Term of this Agreement (the “Expiration Date”). For purposes of this calculation, the number of months remaining before the next Expiration Date will include the month in which the effective date of termination or breach occurs. If there are less than twelve (12) consecutive months in which Monthly Service Fees were due from Client to BlueHornet from which to arrive at the average Monthly Service Fees, the average Monthly Service Fees will be determined by using as many whole months available in which Monthly Service Fees were due from Client to BlueHornet.
For purposes of illustration only, if the aggregate Monthly Service Fees in months 1 through 7 of the Agreement were $14,000, and Client purported to terminate the Agreement without cause part of way through month 8 (or BlueHornet gave notice of breach by Client, and Client failed to timely cure said breach), damages would be calculated as follows: 14,000 ÷ 7 = $2,000 average Monthly Service Fees; $2,000 x 5 months to Expiration Date = $ 10,000 damages.
The availability of damages under this provision will be a cumulative remedy, and not the exclusive remedy, available to BlueHornet for breach of this Agreement. Notwithstanding the availability of damages under this provision, BlueHornet will be entitled any other such remedies as may be available to it in law or equity.
Further and notwithstanding any of the foregoing, the total cancellation fee assessed on Client shall not exceed 15% of the annual contract value during the Initial Term or any Renewal Term thereof.
6. Term & Termination.
6.1. Term. The Agreement will have an initial term (the “Initial Term”), and shall automatically renew for successive renewal terms (each, a “Renewal Term”), of the length set forth on the first page of the SOW. If there is no term specified in the SOW, then the length of each such term shall be one (1) year each. The Initial Term and all Renewal Terms are referred to herein collectively as the “Term”.
6.2. Nonrenewal. Either Party may elect not to renew the Agreement at the end of the Initial Term or any Renewal Term by providing written notice of nonrenewal to the other Party in writing (i) if you are on month-to-month terms, at least fourteen (14) calendar days before the start of the next Renewal Term; or (ii) if you are on a fixed period term, at least thirty (30) calendar days prior to the start of the next Renewal Term. In the event notice of nonrenewal is received by the other Party within the timeframes set forth above, the Agreement will expire effective as of the end of the day on the last day of the Initial Term or Renewal Term in which such notice was provided. Any notice of nonrenewal received following the expiration of the timeframes set forth above will become effective at the end of the last day of the following Renewal Term.
6.3. Rights of Termination. Either Party may terminate the Agreement upon written notice to the other Party in the event of the other Party’s breach of a representation or warranty made hereunder or failure to substantially perform its obligations under the Agreement, provided that written notice of such breach or failure is provided by the non-breaching Party, and such breach or failure to perform is not cured to the non-breaching Party’s reasonable satisfaction within thirty (30) calendar days of the breaching Party’s receipt of that notice. Further, a Party may immediately terminate the Agreement, without opportunity to cure, upon written notice to the other Party in the event: (a) the non-terminating Party substantially ceases to do business in the manner in which it was conducted as of the Effective Date of the Agreement (for the avoidance of doubt, a sale of a Party’s business, transfer of stock or assets, or other like transaction between that Party and a third party shall not trigger the other Party’s right to terminate under this clause (a)); or (b) either Party initiates or has initiated against it, voluntarily or involuntarily, any act, process or proceeding under the provisions of any bankruptcy statute or law, or under any other insolvency law or other statute or law providing for the modification or adjustment of the rights of creditors, which is not dismissed within thirty (30) calendar days from the date of filing.
6.4. Events upon Termination. Upon termination of the Agreement, each Party shall cease performance of its obligations under the Agreement, and each Party shall immediately cease the use of, irretrievably delete and remove from all computer hardware and storage media, and promptly return or destroy any of the other Party’s Confidential Information or other materials in its possession or control (including all copies), and shall provide written certification of destruction executed by an officer upon request. Termination shall not affect each Party’s payment obligations to the other Party in connection with activities prior to termination of the Agreement. In addition, in the event BlueHornet terminates the Agreement for cause, as set forth above, all unpaid fees payable by Client through the effective date of termination shall accelerate and become immediately due and payable.
6.5. Survival. Sections 6, 7, 8, 9, and 10 of the Agreement, and any other provisions of the Agreement which, by their terms, require performance after the termination of the Agreement, or have application to events that may occur after such termination, shall survive the termination of the Agreement.
7.1. In General. All Confidential Information provided by a Party shall be maintained in confidence by the other Party, and neither Party shall, directly or indirectly, either (a) divulge to any person or organization (other than its employees, contractors, agents, and professional advisers who have a need to know such information and who are bound by a written nondisclosure agreement containing confidentiality obligations no less restrictive than those set forth herein), or (b) use in any manner whatsoever other than as necessary for the performance of its obligations under the Agreement, any of the Confidential Information of the other Party without the other Party’s express prior written consent to do so. The terms of the Agreement (including pricing), and any information concerning the services provided by BlueHornet’s Affiliate companies, shall be considered BlueHornet Confidential Information. The obligations of confidentiality set forth in this Section 7 shall survive for a period of three (3) years following the termination or expiration of the Agreement. Each receiving Party shall be liable for any misuse, misappropriation or improper disclosure of Confidential Information by any of its employees, contractors, agents, and professional advisers to whom Confidential Information is disclosed or made available by that receiving Party. Further, Client shall be liable for any misuse, misappropriation or improper disclose of BlueHornet’s Confidential Information by any of its employees, contractors, agents, or professional advisers.
7.2. Exclusions. The provisions of this Section shall not have application to any information disclosed by a Party to the extent the receiving Party can reasonably demonstrate such information (i) is or becomes lawfully available to the public through no act or omission of the receiving Party or its agents, employees, contractors or representatives; (ii) is received without restriction from another person or organization lawfully in possession of such information and entitled to provide such information to the receiving Party; (iii) was rightfully in the possession of the receiving Party on a non-confidential basis prior to its disclosure by the disclosing Party; (iv) is approved for release by the disclosing Party in writing; or (v) is independently developed by the receiving Party or its employees without access to or use of the disclosing Party’s Confidential Information, as evidenced by written records demonstrating such independent development.
8. Warranties/Disclaimer of Warranties
Warranties. Client represents and warrants to BlueHornet that: (i) it has full right, power and authority to enter into and fully perform its obligations under the Agreement, including without limitation the right to bind any party it purports to bind to the Agreement; (ii) its execution, delivery and performance of the Agreement does not conflict with any other agreement to which it is a Party or by which it is bound; and (iii) it and its Authorized Users shall comply with all laws, rules and regulations applicable to its activities in connection with the Agreement and its business (including, without limitation, CAN-SPAM).
THE BH-PROVIDED SERVICES ARE PROVIDED TO CLIENT “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, AND BLUEHORNET AND ITS SUBCONTRACTORS DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARDS TO THE BH-PROVIDED SERVICES, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. WITHOUT LIMITING THE FOREGOING, BLUEHORNET DOES NOT WARRANT THAT THE BH-PROVIDED SERVICES WILL MEET CLIENT’S NEEDS REQUIREMENTS OR THOSE OF ITS AUTHORIZED USERS, THAT THE OPERATION OF THE BH-PROVIDED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS IN THE BH-PROVIDED SERVICES WILL BE CORRECTED. BLUEHORNET DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE BH-PROVIDED SERVICES OR DOCUMENTATION (INCLUDING WITHOUT LIMITATION INFORMATION OBTAINED THROUGH THE BH-PROVIDED SERVICES) IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, OR OTHERWISE. CLIENT WARRANTS THAT IT HAS NOT RELIED ON ANY INFORMATION OR REPRESENTATION PROVIDED BY OR ON BEHALF OF BLUEHORNET WHICH IS NOT EXPRESSLY INCLUDED IN THIS AGREEMENT. USE OF ANY INFORMATION OBTAINED VIA THE BH-PROVIDED SERVICES IS ENTIRELY AT CLIENT’S OWN RISK.
9.Indemnification/Limitations of Liability
9.1. Indemnification by Client. Client and its successors and assigns shall indemnify, defend, and hold harmless BlueHornet, BlueHornet Affiliate companies, and their successors and assigns from and against and in respect of any and all demands, judgments, losses, costs, expenses, obligations, liabilities, damages, fines, recoveries and deficiencies, including without limitation interest, penalties, reasonable attorneys’ fees and costs (collectively, “Losses”) in connection with a third party claim, action, suit or proceeding (each, a “Claim”) that any such indemnified party may incur or suffer, which arise, result from, or relate to (a) Client’s breach of any term or condition of the Agreement; or (b) the use of the BH-Provided Services, (c) or the violation of BlueHornet’s Acceptable Use Policy or any applicable laws, by Client or a Client Authorized User; or (d) any Content or other materials provided by Client through or in connection with the BH-Provided Services; or (e) Client’s advertising practices. Client shall be responsible for any breach of any term of this Agreement applicable to Authorized Users.
9.2. Indemnification by BlueHornet. BlueHornet and its successors and assigns shall indemnify, defend, and hold harmless Client and its successors and assigns from and against and in respect of any Claim alleging that the BH-Provided Services infringes the United States patent, trademark, or copyright of that third party, by paying all amounts that a court finally awards or that BlueHornet agrees to pay in settlement of any such Claim. In the event of any adjudication that the BH- Provided Services does infringe or if the licensing or use of the same or any part thereof is enjoined, BlueHornet shall, at its expense and option, do one of the following: (a) procure for Client the necessary right to continue using the affected functionality; (b) replace or modify the affected functionality with a functionally equivalent non-infringing item or portion thereof; (c) modify the affected functionality so that it is non-infringing; or (d) if none of the foregoing are commercially reasonable, terminate this Agreement upon written notice to Client. BlueHornet shall not be liable to, and shall have no obligation hereunder to, defend, indemnify or hold harmless Client from or against any Claim based on or resulting from (1) the use of the BH-Provided Services by Client other than as authorized in this Agreement; (2) the combination of the BH- Provided Services or any portion thereof with any product, software, business method, machine, or device which is not provided by BlueHornet; (3) any modification of the BH-Provided Services or any portion thereof by any party other than BlueHornet or its subcontractors; (4) use of an allegedly infringing version of the BH-Provided Services or any portion thereof, if the alleged infringement could be avoided by the use of a different version made available to Client by BlueHornet: or (5) the use of the BH-Provided Services after notice from BlueHornet that Client should stop such use due to a potential infringement claim. This paragraph states the entire liability of BlueHornet and its subcontractors, and Client’s sole and exclusive remedy, with respect to infringement of intellectual property rights.
9.3. Indemnification Procedure. A party seeking indemnification (the “Protected Party”) shall promptly notify the indemnifying Party in writing of any Claim and give the indemnifying Party all information, cooperation, assistance, and authority reasonably necessary for the indemnifying Party to evaluate and defend such Claim if the tender of defense and indemnity is accepted without a reservation of rights. In the event the indemnifying Party accepts the tender of defense with a reservation of rights, rejects the tender of defense or fails to respond to a tender of defense, the Protected Party shall thereafter have the right to control of the defense of such Claim, including the right to select which firm defends the Claim, until such time as the indemnifying Party accepts its obligation to defend without a reservation of rights. An indemnifying Party shall obtain each Protected Party’s express prior written approval (such approval not to be unreasonably withheld or delayed) to settle any Claim if such settlement (i) arises from or is part of any criminal action, suit or proceeding, or (ii) contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on the part of the Protected Party, or (iii) requires any specific performance or other equitable remedy by the Protected Party, or (iv) requires the payments of any amounts by the Protected Party.
9.5. No Consequential Damages. NEITHER BLUEHORNET NOR CLIENT WILL HAVE ANY LIABILITY TO EACH OTHER OR TO ANY OTHER PERSON OR ORGANIZATION FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOST REVENUE, LOST DATA, OR LOSS OR INTERRUPTION OF BUSINESS), WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.
9.6. THE TERMS WITHIN THIS SECTION 9 REFLECT AN AGREED-UPON ALLOCATION OF RISK BETWEEN THE PARTIES SUPPORTED BY (AMONG OTHER THINGS) THE PRICING AGREED TO BETWEEN THE PARTIES, AND THIS ALLOCATION IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM. THE LIMITATIONS UPON DAMAGES AND CLAIMS SET FORTH IN THIS SECTION 9 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
10.1. Governing Law. Each Agreement shall be governed by the laws of the State of California in the United States without reference to or use of any conflicts of laws provisions therein. For the purpose of resolving conflicts related to or arising out of the Agreement, the Parties expressly agree that venue shall be in state or federal courts located in San Diego County, California. The Parties specifically disclaim application of the United Nations Convention on the International Sale of Goods, 1980.
10.2. Notices. If Client is obligated under the Agreement to tell BlueHornet something or Client desires to give BlueHornet legal notice of any kind, Client must do so in writing and deliver it by certified mail, postage pre-paid and return receipt requested, or by nationally recognized express courier which provides a written proof of delivery, to the address set forth on the first page of the Agreement. All notices to BlueHornet with regard to the Agreement and this Agreement shall be sent to the following email address: Administration@bluehornet.com and also by recognized overnight delivery carrier to: Blue Hornet Networks, Inc., 2355 Northside Drive, Suite B250; San Diego, CA 92108, Attention: CFO.BlueHornet Networks, Inc., If BlueHornet is obligated under the Agreement to tell Client something or BlueHornet desires to give Client legal notice of any kind, BlueHornet may do so by use of the address specified in the Agreement or otherwise provided to BlueHornet through the BH-Provided Services, which may include electronic mail, postal mail or express courier. If any such notice fails to reach Client because it its address information is inaccurate, BlueHornet’s notice shall nonetheless be deemed to have been delivered.
10.3. Irreparable Harm. Each Party acknowledges that its breach of the Agreement would cause irreparable injury to the other for which monetary damages are not an adequate remedy. Accordingly, a Party shall be entitled to injunctive relief and other equitable remedies in the event of a breach of the terms of the Agreement, without the necessity of posting a bond in connection therewith. The availability of injunctive relief shall be a cumulative, and not an exclusive, remedy available to the Parties.
10.4. Inurement; Assignment. Each Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns. Neither Party may assign an Agreement, or assign its rights or delegate its duties thereunder (whether directly or indirectly, in whole or in part, by operation of law or otherwise) without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, in the event of a merger, acquisition, joint venture, change of control, or sale of substantially all of its assets or business of a Party (or any substantially similar transaction), and so long as the entity to which the contract is assigned is not a direct competitor of the other Party, that Party shall be entitled (upon written notice to, but without the prior written consent of, the other Party) to assign an Agreement to the surviving entity in connection with such transaction. At the option of the other Party, the assigning Party shall guarantee in writing the performance of the assignee.
10.5. Non-solicitation. Each Party understands and agrees that the other Party has invested substantial time, money and effort in locating, recruiting, hiring, training and determining how to best compensate and retain its employees and other contractors (collectively, “Personnel Information”). Each Party further understands and agrees that Personnel Information of the other is valuable to the disclosing Party and is maintained in confidence. In light of the foregoing, and because the receiving Party will necessarily have access to Personnel Information in connection with this Agreement, to the extent permitted by applicable law, during the term of each Agreement and for a period of one (1) year after the termination such Agreement, each Party agrees that it shall not knowingly solicit or attempt to solicit any of the other Party’s executive employees or employees who are key to such Party’s performance of its obligations under the Agreement (“Covered Employees”). Notwithstanding the foregoing, nothing herein shall prevent either Party from hiring any person who responds to an advertisement for employment placed in the ordinary course of business by that Party and/or who initiates contact with that party without any direct solicitation of that person by that Party or any agent of that Party. Both Parties acknowledge that a breach of this Section 10.5 is a material breach not subject to cure, therefore giving the Party alleging such breach the immediate right to terminate this Agreement.
10.6. No Third Party Beneficiaries. This Agreement is made solely for the benefit of the Parties to the Agreement and their respective permitted successors and assigns. The terms, representations, warranties, and covenants of the Parties set forth in the Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any other person or entity, including without limitation Authorized Users.
10.7. Entire Agreement; Modifications. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof, and supersedes any prior or contemporaneous agreement, discussion or undertaking, whether written or oral, related hereto. The terms of this Agreement may be modified by BlueHornet from time to time, in its sole discretion, in the event of (a) a change required by addition or modification to applicable law, rule or regulation, or (b) adherence to changes in industry standards or to corporate best practices. Any such changes will be emailed to Client and/or posted on the BlueHornet website by BlueHornet no less than fourteen (14) calendar days prior to implementation of changes to this Agreement. Any use of the BH-Provided Services after receipt of such notice and the effective date of such changes to this Agreement shall be deemed to be continued acceptance of the revised terms of this Agreement including without limitation such amendments and modifications. Except for BlueHornet’s right to adjust Client’s Monthly Service Fees payable to BlueHornet upon commencement of a Renewal Term subject to the limitations described in Section 6 and as otherwise set forth above, no amendments, additions or modifications to this Agreement shall be valid or binding unless expressly agreed to in writing and physically signed by the Parties to the Agreement.
10.8. Export Compliance. Client agrees and acknowledges BlueHornet is not reselling or exporting software or products in connection with the services provided by BlueHornet pursuant to this Agreement. BlueHornet is not a seller of any products to end users pursuant to this Agreement. Client represents and covenants that it shall comply with all relevant export control laws and regulations of all countries in which BlueHornet and Client conduct business, including, without limitation, the Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”), Foreign Assets Control Regulations, Foreign Trade Regulations and U.S. Customs Regulations, as applicable (collectively, “Export Control Laws”), that may apply to Client’s business, products or services. BlueHornet’s policy is to not provide information, documentation or to participate in any way with a foreign boycott-related request that would violate US anti-boycott laws, rules and/or regulations. Client agrees and acknowledges that BlueHornet shall have the right to immediately terminate this Agreement without penalty if it determines that BlueHornet is unable to engage in business with Client under applicable Export Control Laws or BlueHornet’s territorial restrictions for permitted commerce, including without limitation restricted parties lists (“Restricted Parties Lists”) such as but not limited to the Denied Persons Lists, and Specially Designated Nationals Lists, Unverified Lists, Entity Lists, Debarred Parties Lists, and Nonproliferation Sanctions Lists. Client further represents and covenants that it shall not utilize the services provided by BlueHornet or any BlueHornet software or systems, directly or indirectly, either (a) for the sale, resale or distribution of products or materials which are intended for a prohibited end-use, (b) to engage in any transaction with an individual or entity located in an embargoed or sanctioned country in violation of applicable Export Control Laws, (c) to engage in any transaction with an individual or entity who has been designated on one or more Restricted Parties Lists, or (d) in any other manner which would constitute a violation of applicable Export Control Laws. Client’s obligations under this paragraph shall be considered material obligations.
10.9. Other. No waiver of any provision of this Agreement, or any breach of this Agreement (a) shall be effective unless made in writing, or (b) shall operate as or be construed to be a continuing waiver of such provision or breach. In the event any portion of the Agreement is held to be invalid or unenforceable, such portion shall be construed as nearly as possible to reflect the original intent of the Parties, or if such construction cannot be made such provision or portion thereof shall be severable from the Agreement (provided that the same shall not affect in any respect whatsoever the remainder of the Agreement). Except for payment obligations hereunder, neither Party shall be in breach of the Agreement in the event it is unable to perform its obligations as a result of natural disaster, war, emergency conditions, labor strike, acts of terrorism, the substantial inoperability of the Internet, the inability to obtain supplies, or any other reason or condition beyond its reasonable control. Each Party is an independent contractor of, and is not an employee, agent or authorized representative of, the other Party. This Agreement shall not in any respect whatsoever be deemed to create a partnership, joint venture, or other business combination between BlueHornet and Client. Except as may be expressly provided in the Agreement, neither Party shall have the right, power or authority to act or create any obligation, express or implied, on behalf of each other. Notwithstanding any applicable statute of limitations, the Parties agree that any claims for breach of the Agreement shall be brought by a Party within two (2) years of the date that Party first has notice of the existence of such breach. No provisions in either Party’s purchase orders or other business forms shall modify, supersede or otherwise alter the terms of the Agreement. The Parties acknowledge and agree that the Agreement has been negotiated by the Parties and their respective counsel, and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party based on draftsmanship of the Agreement or otherwise. Headings are for reference purposes only and shall not affect the meaning or interpretation of the Agreement. BlueHornet may, at its discretion, engage the services of subcontractors or agents to assist BlueHornet in the performance of its obligations, and will be responsible for the acts and omissions of such subcontractors and agents. Any reference to a section shall refer to all subsections of that section unless otherwise stated. This Agreement, and any portions thereof (by way of example only, an Amendment, Addendum, and/or services agreement) may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall be one and the same document. A copy (including PDF) or facsimile of a signature shall be binding upon the signatory as if it were an original signature.
CLIENT HEREBY AGREES (A) TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND (B) TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICES PROVIDED BY BLUEHORNET. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.