1.4. Important Responsibilities.
1.4.2. User Accounts. Customer may identify an individual as the administrator for the Service who will receive an administrative user name and password for Customer’s account. Customer will ensure that its Users are aware of and use the Service only in compliance with this Agreement. Customer is responsible for all activities of Users and Meeting attendees that occur under Customer’s accounts. Customer (a) is responsible for ensuring the security and confidentiality of all User and administrator IDs and passwords for the Service, (b) shall prevent unauthorized access to, or use of, the Service, and (c) shall notify BlueJeans promptly of any unauthorized use of the Service or any breach, or attempted breach, of security of the Service.
1.5. Equipment. Customer is responsible for obtaining and maintaining any equipment and ancillary services including video-enabled devices, video communication services, modems, hardware, servers, software, operating systems, networking, web servers, internet and telephone service (collectively, “Equipment”) needed to connect to, access or otherwise use the Service (and, to the extent applicable, the Software). Customer is responsible for the security of its Equipment.
1.6. Third Party Products. If third party services, applications, code, hardware or products (“Third Party Products”) are integrated or used in connection with the Services, Customer agrees that (a) BlueJeans makes no representations and disclaims all warranties, express or implied, regarding Third Party Products, (b) BlueJeans is not responsible and shall have no liability for Third Party Products or the unavailability of Third Party Products, (c) if Third Party Products are provided under a separate license or other agreement, such terms shall govern with respect to such Third Party Products, (d) Customer is solely responsible and liable for its use of Third Party Products, (e) Customer authorizes BlueJeans to share User Data (defined below) with providers of the Third Party Products as required for the operation of the Third Party Products, provided however, that BlueJeans is not responsible for any transmission, collection, disclosure, security, modification, use or deletion of User Data by or through Third Party Products or their providers, and (f) BlueJeans has no obligation to support any integration(s) of Third Party Products with the Services and may cease any integrations of Third Party Products at any time, in BlueJeans’ sole discretion.
2. PROPRIETARY RIGHTS AND FEEDBACK.
2.1 Ownership. Customer acknowledges and agrees that (a) the Service, the Software and the Documentation are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, (b) BlueJeans owns and retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to the Service, the Software, the Documentation, any other deliverables, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, (c) there are no implied licenses to Customer under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by BlueJeans, (d) the Software and access to the Service are licensed, not sold and Customer acquires no ownership or other interest (other than the license rights expressly stated herein) in or to the Service, the Software and the Documentation and (e) the Service is offered as an on-line, hosted solution, and Customer has no right to obtain a copy of the Service itself.
2.2 Feedback. From time to time, Customer may provide BlueJeans with suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Service or Software (“Feedback”). Feedback shall not be deemed to constitute Confidential Information or to impose any confidentiality obligations on BlueJeans. Customer agrees that BlueJeans is free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
3.1 Confidentiality and Non-Use. Each party (the “Recipient”) understands that, in connection with this Agreement, the other party (the “Discloser”) may disclose business, technical or financial information relating to the Discloser’s business. Such information shall be considered the “Confidential Information” of the Discloser provided that it is marked or otherwise designated at the time of disclosure as “confidential” or “proprietary” or the like. BlueJeans’ Confidential Information includes, without any marking or further designation, (a) the pricing and other terms reflected in all Order Forms hereunder, (b) any trade secrets, know-how, inventions (whether or not patentable), techniques, ideas, or processes related to the Services, (c) the Software, (d) the design and architecture of the Services, (e) the computer code, internal documentation, and design and functional specifications of the Services (f) any problem reports, analysis and performance information related to the Services and (g) reports, analyses and/or other information relating to BlueJeans’ security and security practices (“Security Information”). Customer’s Confidential Information includes, without marking or further designation, (i) the content, including Content (defined below), of videoconferences that Customer creates and stores via the Services and (ii) the usernames and passwords of Customer’s Users.
3.2 Obligations. Except in order to provide the Services or as otherwise permitted herein, during the Term and for a period of five (5) years after expiration or termination, the Recipient agrees (a) to use and disclose Confidential Information solely for the purpose of performing its obligations under this Agreement and (b) to protect the Confidential Information with at least the same degree of care it normally exercises to protect its own proprietary information of a similar nature, but in no event less than a reasonable standard of care.
3.3 Exceptions. The Discloser agrees that the foregoing obligations shall not apply with respect to any information that the Recipient can document (a) is or becomes generally available to the public through no fault of the Recipient, (b) was rightfully in its possession or known by it prior to receipt from the Discloser, (c) is rightfully disclosed to the Recipient without restriction by a third party that is not in violation of any obligation of confidentiality or (d) was independently developed without use of any Confidential Information of the Discloser (except for patentable subject matter, which shall not be subject to this exception). Notwithstanding the foregoing, subsections (b)-(d) will not apply with respect to Security Information.
3.4 The Recipient may disclose Confidential Information to the minimal extent required to be disclosed by law; provided that the Recipient will give the Discloser prompt notice to allow the Discloser a reasonable opportunity to obtain a protective order and such Confidential Information disclosed to the extent required by law shall otherwise remain confidential and subject to the protections and obligations of this Agreement.
3.5 Data. By the nature of providing the Service, BlueJeans collects certain data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (such as Meeting start/end times, number of Meetings conducted, meeting duration, underlying network quality in terms of latency, jitter, packet loss, etc. and breakdown of endpoints used (Polycom, Cisco, etc.)) (“Data”). BlueJeans shall have the right to collect and analyze such Data, and Customer grants BlueJeans the right to use and disclose such Data (during and after the Term) solely in an aggregate or other de-identified form to improve and enhance the Services, for other development, diagnostic and corrective purposes in connection with the Services and other offerings, or otherwise in connection with BlueJeans’ business.
4. USER DATA, CONTENT AND RECORDING
4.1 User Data. In order to set up accounts and use the Services, Customer may provide information, such as IP address, username, password, and personally identifiable information (e.g., name, phone number, email address, etc.) (“User Data”). Customer grants BlueJeans and its subcontractors the right to store, process and retrieve User Data in connection with providing and supporting the Services. Customer warrants that it has obtained required consent from Customer’s Users to transfer User Data to BlueJeans and to process the User Data as contemplated by the Services, and agrees that BlueJeans may transfer to, store and process User Data where BlueJeans uses facilities in connection with the Services in order to provide the Services and support the Services. To the extent that User Data provided or disclosed by Customer (as data controller or data exporter) is deemed “personal data” under applicable European Union law or regulation, (a) Customer agrees that BlueJeans may transfer to, store and process User Data in the United States and/or another country outside the European Economic Area where BlueJeans uses facilities in connection with the Services in order to provide the Services and support the Services and (b) BlueJeans shall (i) comply with Customer’s reasonable, lawful instructions relating to the security and confidentiality of the User Data, and will maintain administrative, physical, and technical safeguards intended to protect the security and integrity of the User Data and (ii) process the User Data only in accordance with Customer’s lawful instructions or the lawful instructions of the data subject. If BlueJeans cannot comply with Section 4.1(b), Customer’s sole and exclusive remedy shall be to terminate this Agreement and cease using the Services.
4.2 Content. Users may display, upload and store files, recordings, sound, music, graphics and images in connection with Customer’s use of the Service (“Content”). Customer represents and warrants that it owns, or has the necessary permissions to use and authorize the use of Customer’s Content. Customer grants BlueJeans and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to host, cache, copy, store and display Customer’s Content for the purpose of and in conjunction with providing and supporting the Service. Customer acknowledges and agrees that, except as expressly set forth herein, (a) BlueJeans is not responsible in any manner for Customer’s Content, (b) Customer assumes all risk associated with its Content and the transmission of its Content and (c) Customer has sole responsibility for the accuracy, quality, legality, and appropriateness of its Content.
4.3 Recording. The Service may provide a function that allows Users to record individual Meetings. Customer has the option to enable or disable the recording function. Customer is solely responsible for complying with all laws in any relevant jurisdiction when using this feature. BlueJeans has implemented technical and organizational measures designed to secure any Meetings that Customer records and stores from accidental loss and from unauthorized access, use, alteration or disclosure. However, BlueJeans cannot guarantee that unauthorized third parties will not be able to defeat those measures. Customer acknowledges that it stores such information at Customer’s own risk.
5. FEES, PAYMENT AND TAXES.
If Customer is ordering the Service directly from BlueJeans, the following applies:
5.1 Fees and Payment. Customer agrees to pay the applicable fees as stated on each Order Form (the “Fees”). All Fees are are non-cancelable and non-refundable except as expressly stated herein. BlueJeans reserves the right to change the Fees or applicable charges and/or to institute new charges and Fees at the end of the initial term or the then current renewal term upon thirty (30) days’ prior notice (which may be sent by email), each as stated on the Order Form. If Customer believes that BlueJeans has billed Customer incorrectly, Customer must contact BlueJeans no later than sixty (60) days after the date of the invoice on which the believed error or problem appeared.
5.2 Invoicing. BlueJeans will generally bill through an invoice. Full payment for invoices issued in any given month must be received by BlueJeans thirty (30) days after the date of the invoice.
5.3 Credit Card Payment. If payment is made via credit card, Customer authorizes BlueJeans to charge the Fees and any other charges Customer may incur in connection with the Service to Customer’s card in advance on a periodic basis in accordance with the terms on each Order Form. In addition, Customer authorizes BlueJeans to charge to Customer’s card any additional or overage or related fees as stated on an Order Form. Customer is responsible to keep its card and all associated information (such as the expiration date of a credit card) current at all times. If a payment is not successfully received, (a) BlueJeans reserves the right to suspend the Service until such time as payment is successfully received, including any past due payments and (b) Customer authorizes BlueJeans to continue charging its card, as it may be updated. BlueJeans is not responsible for any transaction or other fees Customer may incur by using a credit card.
5.4 Taxes. The Fees payable hereunder are exclusive of any sales, use, excise, value added, import, or other applicable deductions, withholdings, taxes, tariffs or duties (“Taxes”) unless otherwise set forth on an Order Form. Customer is solely responsible for payment of all Taxes except for any taxes based solely on BlueJeans’ net income. If Customer is required to pay any Taxes, Customer shall pay such Taxes with no reduction or offset in the Fees payable to BlueJeans. If BlueJeans has the legal obligation to pay or collect Taxes for which Customer is responsible, Customer agrees to pay such Taxes and BlueJeans will invoice the appropriate amount to be paid by Customer or charge Customer’s card.
5.5 Unpaid Fees. Fees and other amounts not paid by the due date 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 costs and expenses, including reasonable attorneys’ fees, that BlueJeans incurs in connection with the collection of any delinquent amounts.
6. TERM AND TERMINATION
6.1 Term and Renewal. Subject to earlier termination as provided below, this Agreement is for the initial term stated on the Order Form and shall be automatically renewed for additional periods equal to the renewal term set forth in the Order Form. Either party may prevent such automatic renewal by providing the other written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
6.2 Termination for Cause. In addition to any other remedies either party may have, each party may terminate this Agreement if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within thirty (30) days (10 days in the event of non-payment) after notice; provided, however, that BlueJeans may terminate this Agreement without notice and opportunity to cure if in BlueJeans’ opinion such termination is required to prevent any violation of law or is required to do so by any court, governmental, or regulatory authority.
6.3 Effect of Termination. Upon non-renewal or termination of this Agreement for any reason, Customer agrees to pay in full for the Service up to and including the last day on which the Service is provided. If termination is due to BlueJeans’ uncured breach, BlueJeans will refund any pre-paid Fees on a pro-rated basis. Upon expiration or termination of this Agreement for any reason, Customer agrees to cease all use of the Service, Software and Documentation, installed or otherwise, and destroy all copies of any Software, and Documentation that are in Customer’s possession or control. BlueJeans may, upon such expiration or termination, deactivate or delete Customer’s account and any related data, information, and files, and bar any further access to such data, information, and files.
6.4 Survival. Sections 2, 3, 5 (Section 5 only as to amounts due and owing), 6.3, 6.4, 7.2 and 8-13 will survive the non-renewal or termination of this Agreement.
7. LIMITED WARRANTY AND DISCLAIMER
7.1 Limited Warranty. BlueJeans warrants that the Service will be provided in material compliance with the Documentation and to maintain the Service in a manner that minimizes errors and interruptions in the Service. However, the Service may be temporarily unavailable for scheduled or emergency maintenance, either by BlueJeans or by third-party providers, or because of other causes beyond BlueJeans’ reasonable control. BlueJeans will use reasonable efforts to provide Customer with advance notice of any scheduled maintenance.
7.2 DISCLAIMER. THE ABOVE WARRANTY IS CUSTOMER’S EXCLUSIVE WARRANTY AND BLUEJEANS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS PROVIDED “AS IS” AND FURTHER ACKNOWLEDGES THAT BLUEJEANS DOES NOT WARRANT THAT (A) THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (B) THE SERVICE IS NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE OR (C) THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE. CUSTOMER IS RESPONSIBLE AND BLUEJEANS SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS.
7.3 IF THE SERVICE PROVIDED IS A NO-CHARGE EVALUATION OR BETA RELEASE, THE FOLLOWING APPLIES IN PLACE OF SECTION 7.1 AND SECTION 7.2: NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE SERVICE IS PROVIDED BY BLUEJEANS IN AN “AS IS” CONDITION AS TO PERFORMANCE, ACCURACY, AND/OR COMPLETENESS WITH NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED.
8. RESPONSIBILITY FOR THIRD PARTY CLAIMS. Customer agrees to defend any third party claim or action brought against BlueJeans to the extent based on Customer’s alleged breach of Section 1.3, Section 1.4 or Section 4 and Customer agrees to pay (a) any settlements that Customer agrees to in a writing signed by an authorized officer, (b) final judgments awarded to the third party claimant by a court of competent jurisdiction, and (c) fines, penalties, or other costs that are imposed by a governmental or regulatory agency. BlueJeans will provide prompt written notice of any claim, provided that failure to do so shall only relieve Customer to the extent that it is actually and materially prejudiced by any delay, and reasonable information and assistance to Customer in the defense or settlement of the claim at Customer’s expense.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL BLUEJEANS (OR ANY SUPPLIER, LICENSOR OR CHANNEL PARTNER OF BLUEJEANS) BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY OR (C) ANY DAMAGES THAT EXCEED THE TOTAL FEES PAID AND/OR OWED BY CUSTOMER FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT BLUEJEANS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. CHANGES. BlueJeans reserves the right to modify and/or update the Service and/or any components thereof, the Documentation, its support policies, its security and privacy policies and any other information and/or policies at BlueJeans’ sole discretion and without notice; provided that such changes shall not materially decrease the functionality of the Service that Customer has subscribed to during the then current Term.
11. GOVERNING LAW AND JURISDICTION. This Agreement, and any legal claim, suit, action or proceeding arising out of this Agreement, whether sounding in contract, tort or otherwise, shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provisions or rules in any jurisdiction. Each party irrevocably submits to the exclusive jurisdiction of the federal courts of the United States or the courts of the State of California, in each case located in Santa Clara County for the hearing of any such suit, action or proceeding to, and waives any objection based on improper venue or forum non conveniens.
12. MISCELLANEOUS. Notices to be given by either party to other pursuant to this Agreement shall be in writing and directed to the address provided in the applicable Order Form and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt) or (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid. Customer may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of Customer’s obligations or performance, under this Agreement, without BlueJeans’ prior written consent, which shall not be unreasonably withheld. Any purported assignment, delegation or transfer in violation of this provision is void. BlueJeans may assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. If any court of competent jurisdiction adjudges any provision of this Agreement to be to be illegal, unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable, but shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement, together with any Order Forms, constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and replaces and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Where there is a direct conflict between this Agreement and an Order Form, the terms contained in the Order Form will apply. Customer agrees that any purchase order, website, purchasing portal, or other instrument issued by Customer shall be for Customer’s administrative purposes only and any terms and conditions contained therein shall be of no force or effect even if signed or otherwise accepted or acknowledged by BlueJeans. Except as provided herein, no waiver of, addition to, or amendment to any provision of this Agreement by any party shall be effective unless explicitly set forth in a signed writing. Except as otherwise set forth in this Agreement, no failure or delay to exercise any right, remedy, or power arising from this Agreement, in whole or in part, shall operate or be construed as a waiver thereof or preclude any further exercise thereof or the exercise of any other right, remedy, or power. Except for Customer’s payment obligations, neither party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power or equipment, or any other circumstances or causes beyond a party’s reasonable control.