PLEASE CAREFULLY READ ALL OF THE FOLLOWING CUSTOMER TERMS OF SERVICE (THE “TERMS” OR “AGREEMENT”) BEFORE USING BLUE GREEN BRANDS, LLC’S (“BLUE GREEN,” “WE,” “US,” “OUR”) BLUE GREEN MARKETING TECHNOLOGY SOFTWARE (“MARKETING TECHNOLOGY”). These Terms are entered into by Blue Green and the entity executing this Agreement (the “Customer” or “You”) and govern your use of the Marketing Technology and its related internet-based services, features, content, and functionality (together with Marketing Technology, the “Software”). By clicking the “I accept” button, completing the registration process, or using the Software, you acknowledge that you have reviewed and accept this Agreement and are authorized to act on behalf of, and bind to this Agreement, the owner of this account. In consideration of the foregoing, the parties agree as follows:
2.1 Subscription Plan. To access and use the Software, you must choose an appropriate Subscription Plan and set up an Account or allow Blue Green to set up an account on your behalf. Blue Green may change its fees and payment policies for the Software from time to time.
You will use the Software solely for your own internal use and will not use the Software outside of the scope of the license granted hereunder.
Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
You must not circumvent any privacy features that that are part of the Software.
To the extent permitted by applicable law, you will indemnify, hold harmless, and defend Blue Green and its subsidiaries, at your expense, from any and all third-party claims, actions, proceedings, and suits brought against Blue Green or any of its officers, directors, employees, agents, or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by Blue Green or any of its officers, directors, employees, agents, or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement; (ii) your use of the Software; (iii) your violations of applicable laws, rules, or regulations in connection with the Software; (iv) any representations and warranties made by you concerning any aspect of the Software, the Script, or Reports to any Third Party; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Software, the Script, or Reports; (vi) violations of your obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Software, the Script, or Reports. Blue Green will provide you with written notice of any claim, suit, or action from which you must indemnify Blue Green. You will cooperate as fully as reasonable required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
If you use the Software on behalf of the Third Party or a Third Party otherwise uses the Software through your Account, whether or not you are authorized by Blue Green to do so, then you represent and warrant that (i) you are authorized to act on behalf of, and bind to this Agreement, the Third Party and all obligations that you have under this Agreement, (ii) we may share with the Third Party any Customer Data that is specific to the Third Party’s webpages, and (iii) you will not disclose the Third Party’s Customer Data to any other party without the Third Party’s Consent.
DISCLAIMER OF WARRANTIES
WE PROVIDE THE SOFTWARE “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, SECURITY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. WE DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, AND IMPLIED, INCLUDING WITHOUT LIMITATION (i) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WORKMANLIKE EFFORT, ACCURACY, TITLE, AND NON-INFRINGEMENT; (ii) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE; AND (iii) WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
PROPRIETARY RIGHTS NOTICE
This Agreement shall be in effect until your Subscription expires or is terminated pursuant to the terms herein, however either party may terminate this Agreement at any time with notice. Upon any termination or expiration of this Agreement, Blue Green will stop providing the Software to you, and you will delete all copies of the Software and Script from all web pages under your control and certify thereto in writing to Blue Green within ten (10) business days of such termination.
In the event of any termination: (i) you will not be entitled to any refunds of any usage fees or any other fees (except as explicitly otherwise provided in writing), (ii) any outstanding balance for the Software rendered through the day of termination will be immediately due and payable in full, and (c) all of your historical Report data will no longer be available to you.
If you have any questions concerning these Terms, please contact us at firstname.lastname@example.org.
SOFTWARE SUBSCRIPTION AND ACCOUNT MANAGEMENT
2.2 Keep Your Password Secure. You are responsible for safeguarding your password and any other credentials used to access your account within the Software. You, and not Blue Green, are responsible for any activity occurring with your user credentials whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify us immediately. Accounts may not be shared.
2.3 Keep Your Details Accurate. You must keep your user information associated with your account current and accurate. You represent and warrant that all information you provide in accessing or using the Software is true, accurate, current, and complete and you undertake to update all such information if at any subsequent time it becomes untrue or inaccurate. You agree that organizations are liable for all use of the Software by their authorized users (e.g., employees, agents, directors, or officers) and are responsible for immediately notifying us of any changes in the authorization of a user (e.g., discontinuance or termination of employment). Our use of any personal information that you provide to us during the account creation process is governed by our Privacy Notice. You must be at least eighteen (18) years of age to obtain an Account.
Subject to your compliance with these Terms, Blue Green grants you a limited, revocable, non-exclusive, non-sublicensable license to install, copy, and use the Software and Script solely as necessary for you to use the Software on one or more web pages or domains that you own and/or control (collectively the “Websites”) pursuant to your Subscription Plan. You agree that you will not, nor will you allow any third party to: (i) copy, modify, adapt, translate, or otherwise create derivative works of the Software; (ii) reverse engineer, de-compile, disassemble, or otherwise attempt to discover the source code of the Software; (iii) rent, lease, assign, sublicense, or otherwise transfer rights in the Software; (iv) remove any proprietary notices or labels on the Software; (v) use, post, transmit or introduce any device, software, or routine which interferes or attempts to interfere with the operation of the Software; or (iv) use data labeled as belonging to a third party in the Software for purposes other than generating, viewing, and downloading Reports. You will comply with all applicable laws and regulations in your use of and access to the Documentation, Software, and Reports.
LIMITATION OF LIABILITY
9.1 Exclusion of Certain liability. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE YOU ACCESS TO THE SOFTWARE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BLUE GREEN, OUR AFFILIATES AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (i) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (ii) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUR OF OR IN CONNECTION WITH THE SOFTWARE AND THESE TERMS, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.2 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF BLUE GREEN, OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE and THESE TERMS WILL NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SOFTWARE, EVEN IF YOUR REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
The Software and all intellectual property rights in the Software are, and shall remain, the property of Blue Green. All rights in and to the Software not expressly granted to you in this Agreement are hereby expressly reserved and retained by Blue Green and its licensors without restriction, including without limitation, Blue Green’s right to sole ownership of its logos, trademarks, trade secrets, databases, reports, and website.
Without limiting the generality of the foregoing, you agree not to (and not to allow any Third Party to (i) use the trademarks, trade names, service marks, logos, domain names, and other distinctive brand features or any copyright or other proprietary rights associated with the Software for any purpose without the express written consent of Blue Green; (ii) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names, and other distinctive brand features, copyright or other proprietary rights associated with Blue Green or the Marketing Technology other than in the name of Blue Green; (iii) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Software; or (iv) seek, in a proceeding filed during the term of this Agreement or for one year after such term, an injunction of any portion of the Software based on patent infringement.
TERM AND TERMINATION
MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
We reserve the right, in our sole discretion, to modify these terms or any additional terms that apply to the Software from time to time. You are responsible for reviewing these Terms regularly and your continued use of the Software after the changes have been made will constitute your acceptance of the changes. If, at any time, you do not agree to these Terms you should immediately discontinue any use of the Software. Any terms and conditions proposed by you in addition to or in conflict with these Terms are expressly rejected by us and shall be of no force or effect.
We may, in our sole discretion, change and improve the Software. We may add, alter, or remove functionality from the Software at any time without prior notice.
Our goal is to provide a product with outstanding uptime and reliability. Blue Green will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
We have used commercially reasonable efforts to implement a variety of administrative, managerial, and technical security measures designed to protect your personal information from unauthorized use and disclosure. We cannot, however, guarantee security of the information contained in your Account or otherwise collected by us and we cannot promise that such measures will prevent third-party “hackers” from illegally accessing the Software or its contents. We are not responsible or liable for any third-party access to or use of the information contained in your account or otherwise collected by us.
15.1 Assignment You may not assign or otherwise transfer any rights, or delegate or otherwise transfer any of your obligations or performance, under these Terms, in each case whether voluntary, involuntary, by operation of law, or otherwise, without our prior written consent. Any purported assignment, delegation, or transfer in violation of this section is void. Blue Green may freely 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 your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15.2 Entire Agreement. These Terms constitute the complete and entire agreement between you and Blue Green concerning its subject matter, and supersedes all prior agreements and representations between the parties.
15.3 Interpretation The use of the terms “includes,” “including,” “such as,” and similar terms, will be deemed not to limit what else may be included. The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
15.4 No Waiver. A party’s failure to delay or enforce a provision under these Terms is not a waiver of its right to do so later.
15.5 Severability. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
15.6 U.S. Government Rights. If the use of the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), you receive only those rights with respect to the Software as are granted to all other users under license, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. § 12.212, with respect to all other US government licensees and their contractors.
15.7 Governing Law and Jurisdiction. This Agreement is governed by and construed under the laws of the Commonwealth of Massachusetts without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Massachusetts law, rules, and regulations; Massachusetts law, rules, and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Massachusetts.