These BlueLine Grid Enterprise License Terms (these “Terms”) govern Customer’s use of the BlueLIne Grid Software pursuant to a BlueLine Grid Order Form executed by each of Customer and BlueLine (the “Order Form”). Capitalized terms not defined in these Terms have the meaning given in the Order Form.
1. DEFINITIONS. “Software” means (a) BlueLine Grid’s “GridTeam” mobile application and any updates to such application as made available by BlueLine through the Apple App Store, Google Play, or other mobile application stores (the “App”); (b) BlueLine Grid’s “GridCommand “ platform and/or any other enterprise software made available by BlueLine to Customer (“Customer Platform”); and (c) any related user manuals and documentation provided or made available to Customer (“Documentation”). “Authorized User” means an individual user of the App who has been authorized or approved by Customer to communicate with Customer and other Authorized Users via the App and participate in Customer-designated teams.
2. LICENSE FOR LIMITED USE. Subject to these Terms and Customer’s payment of all applicable fees, BlueLine hereby grants Customer a limited, nonexclusive, nontransferable, non-assignable, non-sublicensable right and license during the Term to (a) authorize and maintain up to the number of Authorized Users indicated in the Order Form; and (b) access and use the Customer Platform and related Documentation. The foregoing right includes the right to make a reasonable number of copies of the Documentation for Customer’s own internal use. In addition to these Terms, Customer’s and each Authorized User’s use of the App is subject to the BlueLine Grid Terms and Conditions located at www.bluelinegrid.com/terms.html as such may be updated from time-to- time by BlueLine. The rights and obligations of the United States Government (“Government”) and BlueLine are as set forth herein except as specific terms are inconsistent with Federal Law. The rights of the Government to use, modify, reproduce, release, perform, display, or disclose Blueline technical data and software by or on behalf of the Government include only those rights customarily provided to the public by Blueline as defined in these Terms. Unless otherwise expressly agreed in writing by BlueLine, this customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
3. RESTRICTIONS. The Software may only be used by Customer for its own purposes. Customer may not assign, sell, rent, lease, sublicense, lend, transfer, resell or distribute the Software to any third party or use the Software on behalf of any third-party. For clarity, the foregoing is not intended to prohibit the authorization of Authorized Users who are not employees or agents of Customer and Customer may authorize such individuals (e.g., employees or agents of other governmental agencies or companies) as Authorized Users in order to enable such individuals to participate in Customer-created teams or otherwise receive communications from Customer or Customer’s other Authorized Users. Customer agrees not to modify, obscure, or delete any proprietary rights notices included in or on the Software and Customer agrees to include all such notices on all copies. Customer may not modify the Software, make derivative works or merge the Software into any other computer programs. Customer may not reverse engineer, disassemble or decompile the Software, in whole or in part or otherwise attempt to derive its source code.
4. TITLE. Customer acknowledges that, as between Customer and BlueLine, title and full ownership in and to the Software and all trade secret, copyright and patent rights and all other intellectual property and proprietary rights in and to the Software remain with BlueLine, whether or not any portion thereof is or may be validly copyrighted or patented. Customer is granted the limited license rights to access and use the Software as described in these Terms. Customer will take all reasonable steps to protect the Software from unauthorized access or use by any unauthorized third party.
5. PAYMENT. Customer agrees to pay to BlueLine the fees set forth in all applicable Order Forms. Unless otherwise provided in the Order Form, Customer shall make all payments due to BlueLine in full within 30 days from the date of each invoice. Any undisputed amounts remaining unpaid following the payment due date and all disputed payments that are paid following the resolution of such dispute shall bear interest accruing from the original payment due date through the date that such amounts are paid at the lower interest rate of (a) 1.0% per month and (b) the highest interest rate allowed by law. Customer is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on BlueLine’s net income) that are imposed or become due in connection with the subject matter of the Agreement.
6. TERM AND TERMINATION.
7. SUPPORT AND UPDATES. During the Term, BlueLine will provide such maintenance services, if any, as may be specified in an Order Form or that are made generally available to BlueLine’s other customers receiving such Software.
9. LIMITATION OF LIABILITY.
B. Right to Ameliorate Damages. In the event that a court of competent jurisdiction determines or in the event that BlueLine, in its sole discretion, reasonably determines, that the Software, or any portion thereof, infringes or misappropriates, or may infringe or misappropriate, any third-party intellectual property right, BlueLine shall, as Its sole and exclusive remedy (but without limitation of BlueLine’s obligations under Section 10(A)), and at BlueLine’s sole discretion, either: (i) obtain a license, at reasonable cost, for Customer to continue using the Software, or portion thereof; (ii) modify the Software while retaining substantively equivalent functionality; (iii) replace the affected Software with functionally equivalent software or services; or (iv) terminate this license in whole or in part (in which event, Customer shall immediately terminate use of such Software and the provisions of Section 6 will apply).
11. CONFIDENTIALITY. In connection with the Agreement or Customer’s use of the Software, BlueLine may disclose to Customer information of a confidential nature including, without limitation, the Software, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials, that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which BlueLine reasonably communicated, or Customer should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The Agreement and these Terms also constitute Confidential Information. Customer agree, for Yourself and Its agents and employees, that Customer will not publish, disclose or otherwise divulge or use for Its own purposes (other than as expressly permitted under these Terms) any Confidential Information of BlueLine furnished to Customer without the prior written approval of BlueLine in each instance. Customer will use at least the same level of care to maintain the Confidential Information as Customer use to maintain the confidentiality of Its own non-public information, and in no event less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that Customer can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of Yours, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in Its possession at the time it was received by Customer free from any obligation of confidentiality, (iii) was lawfully received by Customer from a third party who was under no obligation of confidentiality to BlueLine with respect thereto, or (iv) was independently developed by Customer or Its independent contractors who did not have access to any Confidential Information. In the event that Customer are required to disclose Confidential Information in accordance with judicial or governmental order or requirement, Customer shall promptly notify BlueLine to allow it to contest the order or requirement or seek confidential treatment for such information.
12. PROMOTION. During the Term, BlueLine may use Customer’s name in BlueLine’s promotional collateral and as a reference account.
13. GOVERNING LAW; VENUE AND JURISDICTION. The Agreement and these Terms are to be governed by and interpreted in accordance with the laws of the State of New York, U.S.A., without giving effect to its principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Transactions Act shall not apply to these Terms. Any action or proceeding arising out of or relating to the Agreement or these Terms shall be resolved by arbitration in New York City, NY in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator experienced in the software industry. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies. Notwithstanding the foregoing, Customer acknowledges and agrees that in the event that Customer breaches Sections 2, 3, or 11 of these Terms, BlueLine, without limitation of its other rights and remedies, shall be entitled to seek immediate injunctive relief in any court of competent jurisdiction.
14. ASSIGNMENT. The Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning party; provided that BlueLine may assign the Agreement without consent in connection with the sale of all or substantially all its assets.
15. SEVERABILITY. Each provision of these Terms shall be viewed as separate and distinct, and in the event that any provision is deemed to be illegal, invalid or unenforceable, such provision shall be modified to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed shall be deleted and the remaining provisions of these Terms shall continue in full force and effect.
16. NOTICES. All notices provided hereunder shall be in writing, delivered personally or sent by overnight courier, registered or certified mail to the addresses set forth in the Order Form or such other address as may be specified in writing by notice given in accordance with this Section. All such notices shall be deemed to have been given: (i)upon receipt when delivered personally or (ii)upon verification of receipt via overnight courier, registered or certified mail.
17. WAIVER. Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18. INDEPENDENT CONTRACTORS. It is the intention of BlueLine and Customer that BlueLine and Customer are, and will be deemed to be, independent contractors with respect to the subject matter of the Agreement, and nothing contained in these Terms will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between BlueLine and Customer.
19. ENTIRE AGREEMENT. The Agreement, including these Terms and the Order Form, is intended by the parties as the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. These Terms may only be modified or amended pursuant to a written agreement or instrument signed by each party.
20. HEADINGS. Headings are for convenience only and are not deemed to be part of these Terms.