BlueConic U.S. Online Terms and Conditions

Latest update: April 15, 2024

These are the BlueConic Terms and Conditions (hereinafter, “Online Terms”) by which you or your organization (collectively, the “Customer”) use the SaaS Service (as defined below) to the extent made available to you by BlueConic, Inc. and/or its affiliates (collectively, “BlueConic”, “we”, “us” and words of similar meaning), as further specified in one or more Order Forms that are signed by Customer and BlueConic. Together BlueConic and Customer may be referred to individually as a “Party” and collectively as the “Parties” in these Online Terms. These Online Terms apply to your use of the SaaS Service and are subject to (i) the limits and specifications identified in the Parties’ Order Form(s); and/or (ii) any updates to the Online Terms as published on the BlueConic website (or any successor of the BlueConic website, and as amended or updated from time to time, the “BlueConic Website”). Collectively, these Online Terms, the applicable Order Form(s), and the BlueConic Website constitute and are referred to herein as the Parties’ “Agreement”. The Agreement represents the Parties’ entire understanding regarding the SaaS Service and matters related thereto. Any deviation from the Agreement is not valid without the Parties’ mutual agreement in writing.

By using the SaaS Service in any manner, including by embedding BlueConic code in any website, application or other product, service, or software, or using BlueConic’s software development kit (“SDK”) or API on, or in connection with one or more of your “Channels” (as defined below), you unconditionally agree to be bound by these Online Terms.

BlueConic may modify or update the SaaS Service, these Online Terms, and the BlueConic Website from time to time, in its sole discretion, without prior notice to you. Your continued use of the SaaS Service after any such changes are made constitutes your acceptance of any such changes. For this reason, we encourage you to review these Online Terms and the BlueConic Website regularly. If you do not agree to any such changes or any future terms and conditions applicable to the SaaS Service, do not use or access (or continue to use or access) the SaaS Service. This Agreement applies to all “Users” as defined in these Online Terms.

Definitions

  • “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

  • “Agreement” means these Online Terms together with any Order Form(s), attachment(s), exhibit(s), and/or documentation that the Parties’ authorized representatives may mutually agree to from time to time.

  • “BlueConic Content” means the software, images, text, graphics, illustrations, infrastructure, documentation, and materials, and any derivatives thereof, that are made available to Customer in the course of providing the Services.

  • “Channels” means a communication domain within the SaaS Service which Customer can use to communicate online with its audience, including but not limited to a website, a mobile application, a social media account, or a portion of any of the foregoing.

  • “Customer Data” means any and all data or information that is (i) loaded into the SaaS Service by or on behalf of Customer, its Affiliates and/or any Users; (ii) collected and embedded thereon or contained therein by the SaaS Service via Customer’s Channels, including any Personal Data as defined by applicable Data Protection Law.

  • “Online Service Documentation” means the user instructions, release notes, manuals, and online help files as updated by BlueConic from time to time, in the form made publicly available by BlueConic (via https://support.blueconic.com), regarding the use of the SaaS Service.

  • “Error” means a demonstrable and reproducible failure in the SaaS Service such that the SaaS Service does not meet the specifications set forth in the Online Service Documentation in a substantial way, that occurs during Customer’s usage of the SaaS Service, and that is made known by Customer to BlueConic.

  • “Intellectual Property Rights” means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress, and service mark rights, goodwill, trade secret rights and any other intellectual property rights as may now exist or hereafter come into existence, and all applications, registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.

  • “Order Form” means the document(s) executed by the Parties pursuant to the Agreement by which Customer orders services that may specify, among other things, the user specifications and the applicable fees and costs for use of the SaaS Service. All Order Forms shall be deemed incorporated herein by reference.

  • “Implementation Services” refers to the implementation, configuration, training, integration, and deployment of the SaaS Service and/or other professional services which if applicable, will be set forth in an exhibit to the Order Form.

  • “SaaS Service” means the software as a service provided by BlueConic subject to the terms of this Agreement and that is ordered by Customer via an Order Form.

  • “Service Level Agreement” or “SLA” refers to the standard levels of service and performance provided by BlueConic to Customer during the delivery of the SaaS Service which if applicable, will be set forth in an exhibit to the Order Form.

  • “Services” means, collectively, the SaaS Service and the Implementation Services (if applicable).

  • “Term” shall have the meaning ascribed to it in an applicable Order Form.

  • “Users” means individuals who are authorized by Customer to use the SaaS Service, for whom a Subscription to the SaaS Service has been purchased, and who have been supplied user identifications and passwords by Customer. Users may include but are not limited to employees, consultants, contractors, and agents of Customer.

License Grant

Subject to Customer’s compliance with the Agreement and timely payment of the applicable fees, BlueConic will provide the SaaS Service to Customer pursuant to these Online Terms and any Order Forms executed during the applicable Term. BlueConic hereby grants Customer and its Users a non-exclusive, limited, non-transferable, non-sublicensable, freely revocable, worldwide license to access, execute, and otherwise use the SaaS Service during the applicable Term solely for Customer’s internal business purpose(s), subject to these Online Terms and the Agreement.

Use of the SaaS Service

The SaaS Service gives Customer access to a tenant that enables Customer to collect and unify individual profiles (i.e., of customers, users, or visitors) to determine and activate optimal interactions across its Channels. Use of the SaaS Service is subject to the Subscription Specifications provided in the applicable Order Form executed by the Parties pursuant to these Online Terms.

Customer shall not permit any third party to access the SaaS Service except as expressly permitted herein or in the applicable Order Form. Customer agrees not to sell, license, rent, modify, distribute, copy, reproduce, decompile, reverse engineer, transmit, publicly display, publish, adapt, edit, or create derivative works from any of the foregoing, without BlueConic’s written consent expressly authorizing the specific action.

Customer may never use another third-party customer’s tenant or account, and the SaaS Service is designed to prevent Customer from having the ability to access or use the tenant or account of any other customer of BlueConic. When registering and administering the account and tenant, Customer must provide accurate and complete information with respect to all fields requested, which shall include Customer’s full legal name and address, business e-mail address, and the address of the principal place of business of the organization administrating the tenant and account. It is Customer’s responsibility to maintain and promptly update this account information to keep it true, accurate, current, and complete. By providing your and other Users’ business email address you consent to our use of the email address to send you or any Users within your organization service-related notices, including any notices required by law, in lieu of communication by postal mail. BlueConic may also use Customers’ email address(es) to send other important messages, such as notifications of changes to features of the SaaS Service.

Every Customer is restricted to a single tenant unless agreed otherwise in writing by BlueConic. Customer is solely responsible for all of the activity that occurs in Customer’s tenant. Every User must keep account passwords secure. BlueConic will not be liable for, as expressly disclaims any and all liability related directly or indirectly to, any losses caused by any unauthorized use of your account or tenant.

Eligibility

Each Party warrants that it is authorized to enter into the Parties’ Agreement and that it (and its Users) will act in compliance with the Agreement and all applicable local, state, national, and international laws, rules, and regulations. Any use of or access to the SaaS Service by anyone under age 13 is strictly prohibited and in violation of the Agreement. Users previously removed from the SaaS Service by BlueConic cannot use the SaaS Service.

Notwithstanding the foregoing, BlueConic reserves the right, in its sole discretion, to refuse to permit any individual or entity to register as a Customer or as a User.

Access and Accounts

The SaaS Service will be hosted via Amazon Web Services (“AWS”) in the region(s) specified in the applicable Order Form. Customer is solely responsible for obtaining and maintaining, at its own expense, all equipment needed to access the SaaS Service, including but not limited to internet access, adequate bandwidth, and encryption technology.

Access is limited to the version of the SaaS Service in BlueConic’s production environment. BlueConic regularly updates the SaaS Service and reserves the right to discontinue, add and/or substitute functionality equivalent features in the event of product unavailability, end-of-life, or changes to secure Customer Data against accidental or unlawful loss, access, or disclosure. BlueConic will use commercially reasonable efforts to make the SaaS Service generally available for Customer’s use.

During the applicable Term of the Agreement, BlueConic will provide Customer with certain support and maintenance for the optimal use of the SaaS Service. These technical support services will include: (i) responding to and remedying problems with the SaaS Service (i.e., failures of the SaaS Service to operate in accordance with the Subscription specifications and/or Online Documentation); (ii) access to technical support in accordance with these Online Terms; and (iii) meeting or exceeding the service and performance levels set forth in the SLA. If the Parties do execute an SLA in accordance with these Online Terms, the SLA, along with the Order Form and any other applicable attachments, shall be incorporated into the Parties’ Agreement.

SaaS Service Rules

Customer shall: (1) be responsible for its Users’ compliance with this Agreement; (2) be solely responsible for the accuracy, quality, integrity, and legality of the Customer Data; (3) use commercially reasonable efforts to prevent unauthorized access to or use of the SaaS Service and notify BlueConic immediately of any such unauthorized access or use; and (4) use the SaaS Service only in accordance with the Online Service Documentation, BlueConic’s instructions, and with all applicable laws and regulations.

Customer shall not: (1) make the SaaS Service available to any third party other than the Users; (2) sell, resell, rent, lease, license, sublicense, assign, transfer, distribute, or otherwise exploit the SaaS Service; (3) use the SaaS Service to store or transmit malicious code or other harmful software agents; (4) interfere with or disrupt the integrity or performance of the SaaS Service; (5) attempt to gain unauthorized access to the SaaS Service or its related systems and/or networks; (6) load into the SaaS Service any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains viruses or other contaminating or destructive features; (c) violates the rights of others; or (d) otherwise violates any applicable law or regulation.

Customer acknowledges and agrees that BlueConic does not monitor or police the content of communications or data of Customer or its Users uploaded in or transmitted through the SaaS Service, and that BlueConic shall not be responsible for the content of any such communications or transmissions.

BlueConic may, without further liability to Customer, permanently or temporarily suspend, restrict, or terminate Customer’s access to the SaaS Service (i) if Customer fails to pay any fees due to BlueConic; or (ii) if, in BlueConic’s sole determination, Customer violates any provision of the Agreement.

Proprietary Rights of the Parties

BlueConic’s Proprietary Rights

Subject to the limited rights expressly granted hereunder, BlueConic and its licensors reserve all rights, title, and interest in and to the SaaS Service, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein and agreed by the Parties.

The SaaS Service, including without limitation all BlueConic Content and any Intellectual Property Rights related thereto or derivative of the foregoing, provided by BlueConic in the performance of the SaaS Service, shall remain the exclusive, sole, and absolute property of BlueConic and its licensors. For the avoidance of doubt, by executing an Order Form pursuant to these Online Terms, Customer does not acquire any right, title, or interest in or to the SaaS Service, BlueConic Content, or any of BlueConic’s Intellectual Property Rights.

Customer’s Proprietary Rights

As between BlueConic and Customer, Customer exclusively owns all right, title, and interest in and to all Customer Data. For the avoidance of doubt, Customer Data shall include all data generated or supplied by Customer’s subscribers or customers. BlueConic and its subcontractors are provided a royalty-free, fully paid, perpetual, sub-licensable, non-exclusive, worldwide license to the Customer Data for the sole and exclusive purpose of (i) providing the Services to Customer in accordance with these Online Terms; and (ii) developing, benchmarking, maintaining, supporting, and improving the SaaS Service, and preparing aggregate reporting about the SaaS Service (so long as any Customer Data is not reasonably identifiable with an individual).

Customer Feedback

BlueConic and its licensors shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the SaaS Service any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including its Users, relating to the operation and performance of the SaaS Service. Customer further acknowledges that BlueConic does not waive any rights to use similar or related ideas previously known to BlueConic, or developed by its officers, employees, contractors, agents, or other representatives, or otherwise obtained from sources other than Customer.

Free Access Subscriptions

If Customer receives access to a tenant providing the SaaS Service for free (a “Free Access Subscription”), or access to a tenant solely designated for development purposes (a “Sandbox”), then Customer may use the Free Access Subscription and/or Sandbox in accordance with these Online Terms, including, without limitation, the usage restrictions as set forth on the BlueConic Website, the policies set forth in the “Fair Use” Section below, or any other restrictions that are conveyed to Customer from time to time by BlueConic. All Free Access Subscriptions and access to Sandboxes are subject to change from time to time by BlueConic in its sole discretion without prior notice. Changes may include (i) the termination of the provision of certain features of the SaaS Service, either to Customer or to other BlueConic customers; or (ii) changes to or the creation of usage limits, policies, or other restrictions on the use of the SaaS Service. BlueConic may immediately suspend, revoke, or terminate a Free Access Subscription or right to access a Sandbox at any time, for any reason, without liability to either Party. BlueConic does not guarantee that Sandboxes or Free Access Subscriptions will be made available in the future under the same commercial terms that currently are available (or that are made available in the future). BlueConic may use all Customer Data collected via the Free Access Subscription for testing purposes and to provide recommendations for optimal use of the tool. Customer acknowledges that the Free Access Subscription or Sandbox may not be complete or fully functional and may contain bugs, errors, omissions, and other problems.

NOTWITHSTANDING ANYTHING IN THESE ONLINE TERMS TO THE CONTRARY, ALL FREE ACCESS SUBSCRIPTION SERVICES AND SANDBOXES OF THE SAAS SERVICE ARE PROVIDED “AS IS”, AND BLUECONIC WILL HAVE NO LIABILITY, WARRANTY, INDEMNITY, OR SUPPORT OBLIGATIONS OF ANY KIND OR NATURE WITH RESPECT TO FREE ACCESS SUBSCRIPTIONS, SANDBOXES, OR BETA RELEASES.

Fair Use Policy for Free Access Subscription

You are welcome to register for a Free Access Subscription to use the SaaS Service. BlueConic enforces certain limits on the number of profiles and other volume and usage metrics you are allowed to store and/or generate when granted access to a tenant based on a Free Access Subscription. By using a Free Access Subscription to the SaaS Service, you will create a stream of data, storage, and traffic on the network and infrastructure of BlueConic and its third-party suppliers. To prevent excessive use of this capacity by Users, certain fair use policies (which are subject to change by BlueConic from time to time), are applicable to any party with a Free Access Subscription.

The fair use policies specified in these Online Terms, are subject to change from time to time by BlueConic in its sole discretion.

Applicable Terms for Paid Subscriptions

Fees and Payment Terms

The Parties will be deemed to have agreed upon a “Paid Subscription” to the SaaS Service upon the execution of an Order Form incorporating these Online Terms.

Unless otherwise specified in the applicable Order Form, payment of invoiced fees is due thirty (30) days after the invoice date. The payment obligations for the SaaS Service shall start as of the Implementation Date stated in the applicable Order Form. Further, Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written comments made by BlueConic regarding future functionality or features. At the end of each 12-month period during an applicable Term, BlueConic may modify the SaaS Service fees agreed upon in the Order Form; provided, however, that BlueConic will not increase the fees by more than the cumulative annual changes to the Consumer Price Index for All Urban Consumers (“CPI-U”) (all Items U.S. City Average, special aggregate indexes), issued from time to time by the Bureau of Labor Statistics of the United States Department of Labor or any successor agency that shall issue such CPI-U, during the preceding twelve (12) month period plus seven and a half (7.5%) percent. The foregoing price adjustment assumes that upon the start of any renewal Term, Customer’s Subscription limits and volumes will remain at the same levels agreed upon for the Term immediately preceding such renewal Term. Should Customer’s usage of the Subscription have materially increased beyond the then agreed upon limits, sixty (60) days prior to the expiration of the then current Term, the Parties agree to engage in good faith negotiations to revise the Subscription fees for the renewal Term.

The payment obligations for the SaaS Service shall start as of the Implementation Date stated in the applicable Order Form. Amounts paid or payable for the SaaS Service are not contingent upon the performance of any Implementation Services. Further, Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written comments made by BlueConic regarding future functionality or features. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less.

Unless otherwise specified in an Order Form, BlueConic’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for the payment of all Taxes (excluding those on BlueConic’s net income) relating to the provision of the Services. In the event that Customer is tax exempt, such evidence shall be provided to BlueConic at the time of execution of any Order Form.

No Refunds

Customer shall receive no refund or exchange for any unused Services or unused fees of the Subscription. All fees are based on the Services purchased hereunder and not actual usage.

Subscription Terms

Customer acknowledges and agrees that it shall be responsible for paying all fees due for the full Term of its Paid Subscription as agreed in each applicable Order Form, whether or not Customer cancels such Paid Subscription prior to the end of such Term. Customer further acknowledges and agrees that the Term of its Paid Subscription shall automatically renew for additional successive terms equal to the period of the initial Term unless Customer provides BlueConic with notice of its intent not to renew the Paid Subscription at least sixty (60) days prior to the end of the then-current Subscription Term.

Collection, Use, and Security of Customer Data

Customer understands that the technical processing and transmission of the Customer Data is fundamentally necessary in order to perform the Services. Customer expressly consents to BlueConic’s interception and storage of Customer’s electronic communications and/or Customer Data, and Customer acknowledges and understands that this will involve transmission over the internet, and over various networks, the security of which cannot be guaranteed by BlueConic.

If BlueConic processes any personal data on Customer’s behalf when performing BlueConic’s obligations under this Agreement, the Parties hereby agree that Customer shall be the data controller and BlueConic shall be a data processor. BlueConic shall process Customer Data in accordance with applicable law and, if applicable, the terms of a Data Processing Agreement (“DPA”) executed by the Parties. If the Parties do execute a DPA in accordance with these Online Terms, the DPA, along with the Order Form and any other applicable attachments, shall be incorporated into the Parties’ Agreement.

Additionally, Customer shall ensure that Customer is entitled to transfer the relevant personal data to BlueConic so that BlueConic may lawfully use, process, and transfer the personal data in accordance with this Agreement on Customer’s behalf. Further, Customer shall ensure that the relevant third parties (such as members of Customer’s audience) have given their consent to such use, processing, and transfer of all personal data supplied by Customer as required by all applicable data protection laws, rules, and regulations. BlueConic takes no responsibility and assumes no liability for any Customer Data (including personal data or content) that Customer or any other User or third party provides, posts, publishes, or transmits over the SaaS Service.

Customer consents to the appointment of Amazon Web Services (“AWS”) and Pendo.io, Inc. (“Pendo”) as sub-processors to the Parties’ Agreement. BlueConic enlists AWS to host the BlueConic SaaS Service. BlueConic enlists Pendo to collect data on User behavior and interactions within Customer’s instance of the BlueConic SaaS Service. For clarity, Pendo does not process Customer Data that is loaded into the SaaS Service, nor does Pendo track or monitor your customers’ interactions with your brand outside of the BlueConic interface. Pendo is solely a product improvement tool to enhance your BlueConic experience. BlueConic remains fully liable to Customer for all the acts and/or omissions of sub-processors that result in a breach of this Agreement by BlueConic and/or a BlueConic Affiliate. Sub-processors operate on behalf of BlueConic in accordance with the Online Service Documentation. BlueConic takes steps to ensure the reliability of personnel, suppliers, and sub-processors who may process Customer Data and ensure that all such personnel are bound by a duly enforceable contractual or statutory duty of confidence to maintain the confidentiality of the Customer Data and process Customer Data in accordance with BlueConic’s security policies.

Customer will not engage in any of the following prohibited intentional activities: (i) copying, distributing, or disclosing any part of the SaaS Service in any medium (except as expressly permitted herein), including without limitation by any automated or non-automated “scraping”; (ii) transmitting spam or other unsolicited email using the SaaS Service, or using the SaaS Service to communicate any unlawful, harmful, offensive, threatening, abusive, libelous, harassing, defamatory, vulgar, obscene, profane, hateful, sexually explicit, racially, ethnically, or otherwise objectionable material of any sort, including, without limitation, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law, rule or regulation; (iii) interfere with or compromise the system integrity or security of the SaaS Service (including, without limitation, attempting to access the tenant or account of any other customer of BlueConic) or to decipher any transmissions to or from the servers running the SaaS Service; (iv) intentionally uploading viruses, worms, malicious code or other harmful software agents through the SaaS Service; (v) use the SaaS Service to impersonate another person or otherwise misrepresent the affiliation with a person or entity, conducting fraud, hiding or attempting to hide the identity; (vi) accessing any content on the SaaS Service through any technology or means other than those provided or authorized by the SaaS Service; or (vii) bypassing the measures BlueConic may use to prevent or restrict access to the SaaS Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the SaaS Service or the content therein. Customer is solely responsible for the legality, reliability, integrity, accuracy, and quality of the Customer Data.

Customer represents and warrants that it will: (i) comply with all applicable laws and regulations with respect to its activities under these Online Terms; (ii) obtain and maintain all necessary licenses, consents, permits and permissions necessary for BlueConic, its subsidiaries, contractors, affiliates, suppliers, and agents, to use the Customer Data in the performance of the SaaS Service; (iii) ensure that Customer’s Users use the SaaS Service, Online Service Documentation on the BlueConic Website, and all data obtained from the use of the SaaS Service in accordance with the terms and conditions of these Online Terms and shall be responsible for any Users’ violation of the Online Terms (as if such violation had been committed by Customer itself); and (iv) assume sole responsibility for its and its Users’ use of any data obtained from the use of the SaaS Service, and for conclusions drawn from such use.

BlueConic may suspend Customer’s access and use of the SaaS Service immediately, with prompt notice provided to Customer, if, and so long as, in BlueConic’s sole judgment, there is a security or legal risk created by Customer that may interfere with the continued lawful provision of the SaaS Service or the operation of BlueConic’s network or systems.

During the Term of the Agreement, BlueConic will: (i) store the Customer Data in the format(s) specified in the Online Service Documentation; (ii) enable Customer to access the Customer Data electronically; and (iii) enable Customer to export and/or download the Customer Data from the SaaS Service at any time.

Upon termination or expiration of this Agreement, and for a reasonable time thereafter, Customer may request BlueConic’s assistance to transfer the Customer Data from the SaaS Service to a third-party application. If Customer requests transition assistance, and BlueConic is willing to perform such work, the transition services will be subject to an agreement of the fees to be paid in advance to BlueConic.

Privacy Policy

To learn more about how BlueConic protects your privacy, please visit the Privacy Policy on the BlueConic Website.

Confidentiality

“Confidential Information” of either Party will mean information disclosed to or learned by the receiving Party concerning the disclosing Party’s business, customers, products, proposed products, plans, inventions, processes, and techniques, which information is designated as “Confidential”, “Proprietary” or some similar designation, or should reasonably be considered to be confidential or proprietary due to its nature or the context of its disclosure. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach on the part of the receiving Party; (ii) the receiving Party obtains from a third party rightfully, without breach of nondisclosure obligations and without restriction on disclosure; (iii) the disclosing Party regularly provides to others without restriction on disclosure; or (iv) is independently developed by the receiving Party without use of or reference to the Confidential Information.

Except as explicitly authorized in writing by these Online Terms or otherwise agreed by the Parties in writing, each Party will: (a) not use, for its own benefit or the benefit of any third party, the other Party’s Confidential Information; (b) only disclose Confidential Information to its employees and agents (who are bound by obligations of confidentiality consistent with those set forth in this Section) having a need to know such information in connection with fulfilling its obligations pursuant to the Agreement; and (c) use reasonable care, but in no event less than a commercially reasonable standard of care, to protect the other Party’s Confidential Information from unauthorized use, disclosure, and publication. Both Parties acknowledge and agree that the breach of this Section could cause great or irreparable injury to the disclosing Party and that pecuniary compensation would not afford adequate relief, and therefore, that upon any such unauthorized disclosure by the receiving Party, the disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. Within fourteen (14) days after termination of this Agreement, each receiving Party shall destroy or deliver to the disclosing Party, at the disclosing Party’s option, all materials in the receiving Party’s possession or control that contain or disclose any Confidential Information of the disclosing Party.

Additionally, the receiving Party may disclose Confidential Information if compelled to do so by law; provided, however, that the receiving Party notifies the disclosing Party in writing without undue delay in advance of such disclosure (to the extent legally permitted) and provides the disclosing Party with reasonable assistance, at the disclosing Party’s sole cost and expense, if the disclosing Party wishes to contest the disclosure. If the receiving Party still must disclose the Confidential Information, the receiving Party will share only that specific portion of Confidential Information as legally required (on advisement of its legal counsel) and will take commercially reasonable measures to afford such disclosure confidential treatment.

Non-Conformance and Errors

Only with regard to a Paid Subscription of the SaaS Service (and not with regard to any Free Subscription Access or Sandbox), BlueConic warrants that the SaaS Service will perform substantially in accordance with this Agreement, the Online Service Documentation, and any applicable Order Form(s) and/or Statement(s) of Work. BlueConic shall not be responsible to correct a non-conformance, if such non-conformance is solely caused by use of the SaaS Service contrary to these Online Terms, the Online Service Documentation, any applicable Order Form(s) and/or Statement(s) of Work, or BlueConic’s instructions, or is otherwise due to the modification or alteration of the SaaS Service by Customer, not approved by BlueConic. In case of an Error that occurs during Customer’s paid usage of the SaaS Service, which is made known by Customer to BlueConic, BlueConic will at its sole discretion, use reasonable commercial efforts to correct any such non-conformance, or will provide Customer with an alternative means of meeting such specifications, at no additional charge to Customer.

Additional Services (other than the SaaS Service)

BlueConic or other third parties may, from time to time, make available to Customer products and/or services, including but not limited to non-standard and/or non-BlueConic applications, plug-ins, customizations and implementation, or other consulting services (collectively “Other Services”). Any installation or enablement by Customer (or on behalf of Customer) of Other Services, and any exchange of data between Customer and any of such Other Service, is solely between Customer and the applicable provider. If BlueConic is the provider of Other Services to Customer, the provision of Other Services shall be pursuant to a separate agreement.

If non-standard applications, plug-ins, or customizations are installed or enabled by Customer (or on behalf of Customer for use with the SaaS Service), Customer acknowledges that BlueConic may allow providers of those non-standard applications, plug-ins, or customizations to access the Customer Data as required for the interoperation of such non-standard applications, plug-ins, or customizations with the SaaS Service. BlueConic shall not be responsible for any disclosure, modification, or deletion of Customer Data resulting from any such access by the providers of non-standard applications, plug-ins, or customizations. The SaaS Service shall allow Customer to restrict such access by restricting Users from installing or enabling such non-standard applications, plug-ins, or customizations for use with the SaaS Service.

The SaaS Service may contain features designed to interoperate with non-BlueConic applications (for example Google, Facebook, or Twitter). To use such features, Customer may be required to obtain access to such non-BlueConic applications from their providers. If the provider of any such non-BlueConic application ceases to make the non-BlueConic application available for interoperation with the corresponding service features on reasonable terms, BlueConic may cease providing such service features without entitling Customer to any refund, credit, or other compensation.

The SaaS Service may contain links to other websites (“Linked Websites”). Those links are provided for your convenience and reference only and may not remain current or be maintained. BlueConic does not control Linked Websites and is not responsible for the content or privacy practices associated with any of the Linked Websites. BlueConic reserves the right to terminate the links at any time. Linked Websites should not be construed as an endorsement, approval, or recommendation by BlueConic of the owners or operators of the Linked Websites, or of any information, graphics, materials, products, or services referred to or contained on those Linked Websites. BlueConic is not liable or responsible for the accuracy, copyright compliance, legality, or decency of any material contained in any third-party websites, and Customer hereby irrevocably waives any claims that it may have against BlueConic with respect to such websites.

Representations, Warranties, and Disclaimers

Each Party represents and warrants that such Party has full right, power, and authority to enter into and perform their obligations under the Agreement without the consent of any third party. Each Party further represents and warrants that it will use industry standard methods to prevent the transmission to the other party of any viruses, trojan horses, worms, time bombs, cancel bots or other computer programming routines that damage (or are intended to damage), detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.

BlueConic represents and warrants that it will perform the Services in a professional and workmanlike manner in accordance with the applicable specifications and requirements set forth in this Agreement and any applicable Online Service Documentation. BlueConic further represents, warrants, and covenants that it is the sole owner of the SaaS Service and that it has obtained and will maintain adequate rights, licenses, and authorizations thereto as required to fulfill its performance obligations herein and that the SaaS Service does not infringe, contributorily infringe, or misappropriate any intellectual property or proprietary right of any third party. For any breach of any warranty contained in this section, Customer’s sole and exclusive remedy shall be as provided in the section below on “Termination for Cause”.

BLUECONIC, ITS LICENSORS, AUTHORIZED REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED. BLUECONIC MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE SERVICES AND ANY RELATED INSTALLATION, CONFIGURATION, MAINTENANCE, OR OTHER SUPPORT SERVICES, EXPRESS OR IMPLIED, AT LAW OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ALL OF WHICH ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BLUECONIC SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BLUECONIC.

Indemnification

Indemnification by Customer

Customer agrees to indemnify and defend BlueConic, its licensors, and its and their respective parents, subsidiaries, affiliates, officers, directors, employees, and agents from and against any and all losses, including, but not limited to any damages, attorneys’ fees and costs awarded against Customer, or as a result of a court approved settlement arising out of or in connection with a third party claim (“Claim”) arising out of: (1) the Customer Data or the combination of the Customer Data with other applications, systems, content, or processes, including any claim involving alleged infringement or misappropriation of third-party rights by the Customer Data, or by the use, development, design, production, advertising or marketing of the Customer Data; (2) any and all losses, including without limitation, data loss or damage to hardware, software, and other property arising from Customer’s or its Users’ acts and omissions in using the Services; (3) Customer’s or its Users’ use of the SaaS Service in violation of these Online Terms or applicable law; or (4) a dispute between Customer and any of its Users.

Indemnification by BlueConic

BlueConic will indemnify and defend Customer and its successors, subsidiaries, affiliates, officers, directors, and employees from and against all Claims brought against Customer by a third party alleging that the Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party; provided, however, that the foregoing shall not apply with respect to infringements or violations caused or allegedly caused by Customer or its Affiliates, sublicensees, subcontractors, agents, or distributors. If the SaaS Service is held or believed to infringe on the Intellectual Property Rights of a third party, BlueConic may, in its sole discretion (1) replace or modify the SaaS Service to be non-infringing; (2) obtain a license for Customer to continue using the affected portion of the SaaS Service; or (3) if neither (1) nor (2) are practical in BlueConic’s sole judgment, terminate the Services and return to Customer the pro-rated portion of unused fees for the fees actually paid by Customer for the affected portion of the SaaS Service.

Notwithstanding the foregoing, BlueConic will have no obligation of defense, indemnification, or otherwise with respect to any Claim or demand based upon (1) any use of the SaaS Service not in accordance with this Agreement and the Online Service Documentation; (2) a third party application; (3) any modification of the SaaS Service made by or content provided by any person other than BlueConic; (4) where Customer continues the allegedly infringing activity after being notified thereof and is provided modifications, replacements, or other remedies that would have avoided the alleged infringement. The indemnity and other remedies set forth in this section shall be the exclusive remedies of Customer with respect to any Claim and actions for which BlueConic has an obligation of indemnity pursuant to this section.

Procedure

The indemnified party shall: (i) give the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity (provided however, the failure to give timely notice shall not relieve the indemnifying party of its obligations under this section except to the extent that such untimely notice materially impairs the ability of the indemnifying party to defend); (ii) grant complete control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense); and (iii) reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, in defense and settlement of such Claim. The indemnifying party shall not, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect to which indemnified party is or could be indemnified hereunder unless such settlement either: (1) includes an unconditional release of the indemnified party from all liability on all Claims that are the subject matter of such proceeding; or (2) is consented to in writing by the indemnified party (which consent shall not be unreasonably withheld.

Limitation of Liability

Except for the Parties’ indemnification obligations as set forth above, in no event shall either Party’s liability arising out of or related to the Parties’ Agreement, whether in contract, tort, or under any other theory of liability, exceed in the aggregate the total amount paid by Customer hereunder during the then current Term, or during the most recent twelve (12) months, whichever is less.

IN NO EVENT SHALL EITHER PARTY NOR THEIR LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUES, DATA, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES OR FOR ANY CONTENT OR ANY INTERRUPTION OF THE SERVICES, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Termination

Termination for Cause

Either Party may terminate the Agreement, and any Order Forms subject to the Agreement, immediately upon written notice at any time if: (i) the other Party commits a material breach of the Agreement and the breaching Party fails to cure the material breach or provide a written plan of cure acceptable to the non-breaching Party within forty-five (45) days of being notified in writing of such breach; (ii) the other Party ceases business operations; or (iii) the other Party becomes insolvent, generally stops paying its debts as they become due, or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within ninety (90) days after commencement of one of the foregoing events). Where a Party has rights to terminate, that Party may, at its sole discretion, either terminate the entire Agreement or the applicable Order Form. In such case, Order Forms that are not terminated will continue in full force and effect pursuant to these Online Terms.

Post Termination

BlueConic has no obligation to retain Customer Data thirty (30) days after the expiration or termination of the SaaS Service unless otherwise agreed by the Parties in writing.

Digital Millennium Copyright Act

Customer shall be responsible for handling and processing notices of alleged infringement by Customer in accordance with the Digital Millennium Copyright Act (or any successors thereto or similar laws in foreign jurisdictions) (“DMCA”) and shall promptly notify BlueConic if Customer becomes aware of any such notices or takedown requests. Notwithstanding the foregoing, without limiting BlueConic’s other rights and remedies hereunder, BlueConic reserves the right to respond to any DMCA notices it receives in accordance with its DMCA policies and to suspend or terminate access to the SaaS Service for repeat infringers.

General Provisions

Relationship of the Parties

The Parties expressly understand and agree that each Party is an independent contractor in the performance of each and every part of the Agreement and is solely responsible for all of its employees and agents, and its labor costs and expenses arising in connection therewith.

Governing Law

This Agreement, and any disputes arising out of or related thereto, is governed by the laws of the Commonwealth of Massachusetts without giving effect to its conflict of law provisions. The state and federal courts located in Suffolk County, Massachusetts shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts.

Export Compliance

Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each of BlueConic and Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use the Services in violation of any U.S. export embargo, prohibition, or restriction.

Assignment

BlueConic may assign the Agreement to an affiliate, a successor in connection with a merger, acquisition, or consolidation, or to the purchaser in connection with the sale of all or substantially all of its assets. Customer may not assign the Agreement or any of the rights or obligations under this Agreement without the prior written consent of BlueConic.

No Third-Party Beneficiaries

The Agreement is for the benefit of the Parties and their successors and permitted assigns and does not confer any rights or benefits on any third party, including any employee of a Party, any customer of a Party, or any employee of a customer of the Party.

Force Majeure

Neither Party shall incur any liability to the other Party on account of any loss, claim, damage, or liability to the extent resulting from any delay or failure to perform all or part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this section. Such events, occurrences, or causes shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, or explosions.

No Waiver

The failure of either Party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other Party will not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other Party.

Severability

If any provisions of these Online Terms are determined to be invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement will be construed as if not containing the invalid or unenforceable provision(s), and the rights and obligations of Customer and BlueConic will be construed and enforced accordingly.

Headings

The headings used in these Online Terms are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.

Notification Procedures

Any notice or other communication required or permitted under the Agreement shall be in writing and shall be deemed to have been given (i) upon receipt by personal delivery, delivery by overnight courier (with signature acknowledgment of receipt), or delivery by certified mail; (ii) the second business day after mailing via first class mail (other than pursuant to (i)); or (iii) immediately if sent by email. All notices to BlueConic shall be directed to: BlueConic, Inc., 225 Franklin Street, 26th Floor, Boston, MA 02110, USA, ATTN: Legal Department with an electronic copy to legal@blueconic.com.