BY SUBMITTING AN ONLINE OR PAPER ORDER FORM THAT IS REQUESTED AND ACCEPTED BY bluecap™ IN WRITING (“ORDER FORM”), YOU OR THE ENTITY THAT YOU REPRESENT IDENTIFIED ON THE ORDER FORM (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND A PARTY TO THIS MASTER SERVICE AGREEMENT AND SUCH ORDER FORM (COLLECTIVELY, THE “AGREEMENT”). PROVISION OF THE SERVICE IDENTIFIED IN THE ORDER FORM (“SERVICE”) IS CONDITIONED ON, AND CUSTOMER’S USE OF ANY SERVICE SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SUBMIT AN ORDER FORM, AND CUSTOMER WILL HAVE NO RIGHT TO USE THE SERVICE.
1.1 bluecap™ will provide Customers with access to the Service, subject to Customer’s compliance with the terms and conditions of this Agreement.
1.2 During the Term, bluecap™ will use reasonable and appropriate measures designed to protect the Service against virus attacks, hacking, and denial of service interruptions. bluecap™ shall not be liable for any interruption in service or downtime that is the result of matters beyond its reasonable control.
1.3 bluecap™ will provide support to Customer via e-mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of U.S. Federal Holidays (“Support Hours”), as set forth below. Customer may initiate a helpdesk ticket during Support Hours by emailing email@example.com.
2.1 Customer will not, and will not authorize any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service or any software, documentation or data related to the Service (except to the extent applicable law prohibits such a restriction); modify, translate, or create derivative works based on the Service; rent, lease, sublicense, resell, or otherwise use the Service for timesharing or service bureau purposes or for any purpose other than its own internal business purposes authorized hereunder; attempt to probe, scan, or test the vulnerability of the Service, such as load tests or penetration testing; or access or use the Service in connection with building or having built a competitive product or service.
2.2 Customer represents and warrants that it, and its users, will: (i) not use the Service or any product thereof in any manner that violates any applicable law or governmental regulation; (ii) use the Service only in compliance with this Agreement and the documentation provided in connection with the Service; and (iii) prevent any unauthorized use of or access to the Service by its users, personnel, representatives or otherwise within its control, and promptly notify bluecap™ of any such unauthorized use or access.
2.3 Customer’s use of the Service may be limited to a certain number of users, as described in the Order Form. Customer shall remain responsible for any breach of this Agreement by its users for the avoidance of doubt.
2.4 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to bluecap™ .
2.5 Customer is solely responsible for all data, information, text, voice content and other content and materials that are collected, uploaded, posted, delivered, provided, or otherwise transmitted or stored by Customer in connection with the Service, and Customer represents and warrants that it has all rights necessary to grant the licenses herein without violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. To the extent that Customer elects to provide bluecap™ with personally identifiable information regarding its personnel, users, or others, Customer shall be responsible for making any required notices and for obtaining any required consents sufficient to authorize bluecap™ ’s performance of its obligations and exercise of its rights as set forth in this Agreement.
2.6 Customer shall be solely responsible for managing the information-sharing settings with its customer relations platform and other third-party platform providers, consistent with the Service documentation, to accurately reflect information it desires bluecap™ to receive and share back to such providers in the performance of the Service for Customer.
bluecap™ may obtain access through the Service to a set of data, graphics, images, files, recordings, and other information provided by Customer in the course of the Customer’s use of the Service (“Customer Data”). During the Term and for a reasonable wind-down period thereafter, Customer hereby grants bluecap™ a limited, non-exclusive, non-transferable (except as set forth in Section 14) worldwide, royalty-free, license to access, read, store, use, reproduce, display, modify, and disclose Customer Data, solely for the purposes of (i) providing the Service, (ii) performing and enforcing this Agreement, detecting, preventing or addressing any technical or security issues or fraud, and responding to Customer’ support requests.
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology, finances, customers, operations, or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party) that was identified as confidential at the time of disclosure or where the nature and circumstances surrounding disclosure would cause a reasonable person to believe that such information was confidential.
4.2 Except as otherwise specifically provided in this Agreement, the Receiving Party agrees: (i) to use all reasonable precautions (and at least the precautions Receiving Party takes to protect its own Proprietary Information of a like nature) to prevent the disclosure of Disclosing Party’s Proprietary Information to any third persons except to its employees and contractors with a need to have access thereto for purposes of this Agreement, and who are subject to confidentiality obligations no less stringent than the terms of this Agreement, or as otherwise directed by Customer; (ii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information; and (iii) not to use such Proprietary Information except to exercise its rights and fulfill its obligations under this Agreement. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any fault of, action by, or involvement of, the Receiving Party; or (b) was in its possession or known by it without any obligation of confidentiality prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party and not subject to any obligation of confidentiality or restriction on use; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to allow the Disclosing Party to contest such order, unless prohibited from doing so by law. This Agreement is the Proprietary Information of both parties, however, either party may disclose this Agreement on a need to know basis pursuant to its due diligence obligations in a financing or a change of control event, provided that the parties receiving the foregoing are subject to confidentiality obligations at least as strict as this Agreement.
4.3 Customer Data is deemed Customer’s Proprietary Information for the avoidance of doubt. For clarity, the Service’s features, functionality, performance, metrics, compilations, and roadmap plans relating to the Service, and all Feedback (defined below) are deemed bluecap™ ’s Proprietary Information (and not Customers), and shall not be disclosed or used outside of normal use of the Service notwithstanding Sections 4.2(b) and (d).
4.4 Both parties warrant that they will comply with their respective obligations under applicable privacy regulations (e.g., General Data Protection Regulations (“GDPR”), California Consumer Privacy Act (“CCPA”), etc.) as well as the terms of this Agreement. As such, in the context of the GDPR, the parties hereby agree and acknowledge that bluecap™ is a Processor of any Personal Data transmitted to it by Customer (as those terms are defined in the GDPR). In the context of the CCPA, bluecap™ is a Service Provider, and this Agreement constitutes the contractual relationship with a Business to process the Personal Information of Customer’s users (as those terms are defined in the CCPA). In addition to the foregoing bluecap™ will undertake all reasonable security measures required in accordance with applicable privacy regulations, and at Customer’s written request will provide a written description of, and rationale for, bluecap™ ’s technical and organizational measures implemented, or to be implemented, to protect the Personal Data/ Personal Information supplied to it by Customer that bluecap™ will process in connection with the Service provided pursuant to this Agreement. In addition to the foregoing to the extent applicable, bluecap™ and Customer will comply with the terms of any data processing agreement mutually executed between them concurrently herewith.
5.1 Customer shall retain ownership of its Customer Data, for the avoidance of doubt.
5.2 Except as otherwise expressly set forth herein, bluecap™ alone (and its licensors, where applicable) will retain all right, title and interest, in and to the Service, all improvements, enhancements or modifications thereto, and to any suggestions, enhancement requests, or feedback, provided by or on behalf of Customer directly relating to the Service (“Feedback”), and all intellectual property rights related to any of the foregoing; and Customer hereby does and shall make all assignments necessary to accomplish the foregoing.
5.3 Subject to compliance with the terms and conditions of this Agreement, Customer is hereby granted a limited, non-exclusive, non-transferable (except in accordance with Section 14), right to use the Service during the Term for its internal purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or any intellectual property rights related thereto. All rights relating to the Service not expressly granted herein are reserved by bluecap™ .
5.4 Certain reports generated by the Service and made available to Customer in connection with this Agreement contain, in part, proprietary information of bluecap™ relating to its Service and the metrics or components used to operate and provide the Service (“Service Information”). Customer shall not disclose Service information, even when included in such reports, to any third party either during or after the Term without bluecap™ ’s prior written consent, which shall not be unreasonably withheld.
5.5 Each party owns and shall own all goodwill generated from or associated with its trademarks, including any use thereof. Neither party shall make any reference (for promotional purposes or otherwise) to this Agreement or any relationship between the parties without the other party’s prior written consent, except as otherwise expressly provided in this Agreement.
6.1 The Service is provided on a subscription basis, and unless otherwise set forth in the Order Form, Customer shall pay all applicable fees for the Service in advance.
6.2 If Customer elects to add additional recorder seats following the initial date of a subscription license term, then Customer shall pay bluecap™ , in advance of such users having access to the Service, in an amount equal to the applicable recorder seat fees for such user for the remainder of the then-current term (calculated on a pro-rata basis based on the number of months and partial months remaining in such term).
6.3 Except as otherwise expressly set forth in Section 7, all payment obligations are non-cancellable and non-refundable during a subscription license term, even if Customer reduces the number of recorder seats during such term.
6.4 Unpaid amounts that are not promptly disputed in good faith, and that are more than thirty (30) days past due are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection, and may result in immediate termination of Service in accordance with Section 7.1 below.
6.5 bluecap™ ’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If bluecap™ has an obligation to pay or collect Taxes for which Customer is responsible under this Section, bluecap™ will invoice Customer and Customer shall pay that amount unless Customer provides bluecap™ with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, bluecap™ is responsible for taxes assessable against it based on its income, real and tangible property, and employees.
7.1 The initial term and any renewal term(s) of the Agreement (collectively, the “Term”) shall be as set forth in the Order Forms. Either party may terminate this Agreement (i) for a party’s material breach of this Agreement, upon thirty (30) days prior written notice to the non-breaching party (provided such breach remains uncured at the end of such thirty (30) day period); (ii) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings that are not dismissed within sixty (60) days thereafter; (iii) upon the other party making a general assignment for the benefit of creditors; or (iv) upon the other party’s dissolution or ceasing to do business. bluecap™ may disable and suspend Customer’s access to the Service at any time in the event that it reasonably suspects Customer is in violation of Sections 2.1, 2.2, 2.5, or 4, if Customer fails to make undisputed payments within ten (10) days after receipt of notice of such payments being past due, or if the use of Service by Customer results in material harm to bluecap™ or its business; provided that bluecap™ will give Customer advance notice of the same when practical. Upon expiration or termination of this Agreement, Customer’s right to use the Service will immediately cease. In the event of termination of this Agreement for bluecap™ ’s material breach of this Agreement, effected in accordance with the foregoing terms, bluecap™ shall refund to Customer a pro-rata portion of the fees pre-paid for the Service attributable to the unused terminated balance of the term. All accrued payment obligations and the following Sections shall survive any expiration or termination of this Agreement: 2, 3 (as limited by its terms), 4.2, 4.3, 5 (as limited by its terms), and 7 through 14.
7.2 Except as otherwise provided in this Agreement, all marketing materials and other materials provided hereunder, including but not limited to the Proprietary Information and Customer Data will remain the property of the Disclosing Party, and upon termination or expiration of this Agreement, such materials will be returned to the Disclosing Party within thirty (30) days or destroyed at the discretion of the Receiving Party. Upon reasonable written request of the Disclosing Party, the Receiving Party will certify compliance with the foregoing.
Each party represents and warrants to the other that this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. bluecap™ HEREBY DISCLAIMS (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.
9.1 bluecap™ will defend, hold harmless and indemnify Customer from and against any damages, liabilities, losses, claims, and expenses, including, without limitation, reasonable attorneys’ fees, payable to a third party in connection with any claim or action by a third party that is not an entity legally related to Customer alleging that the Service infringes or misappropriate the intellectual property rights of such third party; provided that bluecap™ is notified promptly in writing of the action, and bluecap™ is given the option, at its expense, to have sole control of the action and all requested reasonable assistance to defend the same. However, bluecap™ shall have no obligation for any claim of infringement to the extent the claim arises from (i) modifications to the Service created by Customer or its users or representatives (if the claim would not have arisen but for such modification); (ii) combination or use of the Service with other materials not provided, directed or created by bluecap™ (if the claim would not have arisen but for such combination or use); (iii) bluecap™ ’s compliance with a Customer requirement, specification or design if the implementations of that requirement, specification or design are the basis of the claim; (iv) Customer’s use of the Service that is not in accordance with this Agreement and/or the documentation for the Service; or (v) Customer’s negligence or willful misconduct. Notwithstanding anything to the contrary, the above indemnification obligation represents bluecap™ ’s entire liability and Customer’s sole remedy with respect to violation of third-party intellectual property rights relating to the Service.
9.2 Customer shall defend, hold harmless and indemnify bluecap™ from and against any damages, liabilities, losses, claims, and expenses, including, without limitation, reasonable attorneys’ fees, payable to a third party in connection with any claim or action by a third party that is not an entity legally related to bluecap™ arising from an alleged violation of the restrictions set forth in Sections 2.2 and 2.5; provided that Customer is notified promptly in writing of the action, and Customer is given the option, at its expense, to have sole control of the action and all requested reasonable assistance to defend the same.
NOTWITHSTANDING ANYTHING ELSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND EXCEPT FOR OBLIGATIONS ARISING UNDER SECTION 9, IN NO EVENT SHALL EITHER PARTY OR ITS PARTNERS, SUPPLIERS, LICENSORS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE PROVISION OF THE SERVICE OR OTHER PERFORMANCE OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, REVENUE, INCOME OR BUSINESS, DATA LOSS OR CORRUPTION, INTERRUPTION OF BUSINESS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS OR SERVICES (HOWEVER, ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); AND/OR (II) ANY LIABILITY IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (PLUS IN THE CASE OF CUSTOMER, PAYABLE) FOR THE APPLICABLE SERVICE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
11.1 Neither party may knowingly export or re-export the Service, any data or information, or any software (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority, including, without limitation, to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”), at any time. Customer further represents and warrants that it will not use the Service for the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.
11.2 As defined in FAR section 2.101, any software and documentation provided by bluecap™ are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Any dispute between the parties regarding the construction, application or performance of any Service under this Agreement, and any claim arising out of or relating to this Agreement or its breach, shall be submitted to binding arbitration upon the written request of a party. The arbitration provider shall be J.A.M.S., whose rules shall govern the arbitration. The venue for the arbitration and any post-award proceeding to confirm, correct or vacate the award shall be San Francisco County, California. Neither party will participate in a class action or class-wide arbitration, or bring claims underclass, representative, private attorney general or similar theories of liability or prayers for relief for any claims covered by this agreement to arbitrate. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Notwithstanding the foregoing, either party shall be entitled to seek equitable relief in any court of competent jurisdiction at any time to enforce its intellectual property rights.
13.1 The Service is subject to modification (for example, to provide improvements and new features or comply with regulatory requirements) from time to time at bluecap™ ’s discretion provided that bluecap™ will provide Customer thirty (30) days’ prior notice of (i) any material adverse changes, and/or (ii) any planned discontinuation of the Service; and upon receipt of such notice, Customer has the right to terminate this Agreement with written notice to bluecap™ and receive a prorated refund of any pre-paid fees attributable to the terminated and unused portion of the Term. bluecap™ may analyze and use aggregate uses of its Service (such as statistical information relating to speech recognition; aggregated data inputs that feed into its machine learning algorithms; generic website usage data; and word use frequency, combinations, and probabilities), in order to improve, test, and operate the Service both during and after the Term; but, for the avoidance of doubt, shall not use any data that (i) is not aggregated with such data from its other customers, and/or (ii) is considered personally identifiable information under applicable law or otherwise identifies or could be used to identify Customer or any individual associated with Customer hereunder.
13.2 bluecap™ may make changes to this Master Services Agreement from time to time (e.g., to address changes in applicable laws, regulations, carrier and other partner standards and requirements). If Customer does not agree to any such changes that materially detrimentally affect its rights hereunder, it shall notify bluecap™ in writing, and in such case either party may terminate this Agreement by written notice.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect enforceable. This Agreement is not assignable, transferable or sublicensable by either party except (i) with the other party’s prior written consent; or (ii) an assignment or transfer made by a party of its rights and obligations under this Agreement to any of its majority-owned affiliates or subsidiaries, or to a successor to all or substantially all of a party’s business or assets to which this Agreement relates. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, proposals, communications, and other understandings relating to the subject matter hereof. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof unless such terms specifically amend identified sections of this Agreement and references this Agreement and the parties hereto by name. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. Except as otherwise provided in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws’ provisions, the United Nations Convention on Contracts for the International Sale of Goods, or other international laws. Except as otherwise set forth in Section 12, the federal and state courts sitting in San Francisco, California will have sole and exclusive jurisdiction and venue with respect to any disputes arising from or related to this Agreement. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to seek recovery of costs and attorneys’ fees. No delay, failure or default, other than failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by matters beyond the applicable party’s reasonable control, including, without limitation, acts of war, terrorism, fire, floods, hurricanes, earthquakes, pandemics, epidemics, riots or other acts of civil disorder or political unrest, embargoes, outages of third party connections, utilities, or telecommunications networks, internet access issues, and other third party mechanical, electronic or communications failures or degradation (each and collectively, “Force Majeure Events”). The Order Form referencing this Agreement may be executed in counterparts (which together will constitute one and the same agreement), and delivered by PDF or similar electronic signature technology, and such execution and delivery will have the same force and effect of an original document with original signature.