Terms of Service
Pursuant to this License Agreement, Customer wishes to license from Blue Dog Data Services, LLC, a Florida limited liability company ("Blue Dog"), with its principal office located at 751 Park of Commerce Dr., Suite 128, Boca Raton, Florida 33487, the database management platform described in this Agreement (herein after referred to individually as the “Product” or collectively as the “Products”) and Blue Dog is willing to license the Products to Customer, all on the terms set forth in this Agreement.
Upon Customer’s acceptance of this Agreement, Blue Dog and Customer shall be bound to this Agreement.
1.1 “Authorized User(s)” means full or part-time employees of Customer using the Product for Customer’s internal business purposes only. Customer will be fully responsible and liable for the acts and omissions of all of its Authorized Users.
1.2 “Blue Dog Affiliate” means any entity that owns, is owned by or is under common ownership of either a holding company or any of the subsidiaries of Blue Dog. Blue Dog Affiliates are not deemed to be subcontractors for any term or condition hereunder or in any Schedule(s) that relates to the use of subcontractors.
1.3 “Documentation” means the user guides and manuals provided by Blue Dog to Customer for use with a Product, if any.
1.4 “Fees” means the money due and owing to Blue Dog for Products paid by Customer to Blue Dog each calendar month as agreed to by Customer when accepting this Agreement. For purposes of this definition, Fees shall include any and all expenses and taxes related to the licensing of any Product to Customer, all of which will be charged as separate line items.
1.5 “Product(s)” means Blue Dog’s database management platform, the Software and all information provided by Blue Dog to Customer related thereto, including, without limitation, any and all web tools, search engines or software that can be used by Customer when accessing such platform or information via the Internet.
2.1 Customer shall pay Blue Dog the Fees. Customer understands, acknowledges, and agrees that
Fees for Products are not refundable.
2.2 All Fees specified in this Agreement are exclusive of, and Customer is solely responsible for payment of, all value-added, sales, use, or other taxes applicable to the Products under this Agreement, except for any taxes assessed upon the income of Blue Dog.
3. Term & Renewal.
3.1 Unless sooner terminated in accordance with the provisions of this Agreement, the term of this Agreement commences on the date the Products are made available to Customer by Blue Dog and shall continue until the first anniversary of such date.
3.2 So long as Customer is not in breach of this Agreement as determined by Customer, at the end of any term (including any renewal term) of this Agreement, this Agreement shall automatically renew for successive one (1) year terms unless either party provides written notice of non-renewal of this Agreement to the other party at least sixty (60) days prior to the end of the then current term.
4. License/Authorized Use/Intellectual Property Rights.
4.1 Blue Dog grants to Customer a nonexclusive, nontransferable, revocable license allowing Customer to use the Products for Customer’s internal business use only. The licenses granted herein are personal to Customer and its Authorized Users only.
4.2 Customer may not copy, distribute, republish, transfer, sell, license, lease, give permanently, retain, decompile, reverse engineer, disseminate, publish, assign (whether directly or indirectly, by operation of law or otherwise), transmit, scan, publish on a network, or otherwise reproduce, disclose or make available to others or create derivative works from, the Product(s), the Documentation or any portion thereof, except as specifically authorized herein. Customer must not remove any proprietary legends or markings, including copyright notices, electronically encoded information, watermarks, or any Blue Dog-specific markings.
4.3 Customer must secure all forms of Product files and any Documentation to prevent access by unauthorized individuals or local area network users. Customer may make a reasonable number of copies of any Documentation, provided all such copies include all legends, copyright and other proprietary notices that appear on the original.
4.4 Customer acknowledges that the data, software, equipment and Documentation contained in Product(s) and all material, whether delivered on data tape, hard copy, electronically, or otherwise are developed entirely at private expense, comprise highly valued proprietary and commercial information of Blue Dog and are the sole and exclusive property of Blue Dog. Customer acknowledges that the license granted herein does not confer any ownership rights whatsoever in Products and/or the Documentation and that Blue Dog owns all rights in and to the Products and any Documentation, that the Products and any Documentation are valuable assets and trade secrets of Blue Dog, and that title to and all other rights in the Products and any Documentation will at all times remain in Blue Dog; Customer is acquiring only the non-exclusive right to use the Products as provided in this Agreement. Blue Dog may exploit any Product and any Documentation subject to this Agreement in such manner and on such terms as Blue Dog, in its sole and absolute discretion determines. Customer may use and disclose the Products only as expressly permitted by this Agreement; Customer will not permit any other use or disclosure. Customer may not sell, sublicense, transfer, assign, encumber or otherwise dispose of or exploit any of the Products or any Software Product. A violation by Customer of any of these provisions will cause irreparable harm to Blue Dog.
4.5 Customer will not remove any copyright, trademark or other proprietary notices of Blue Dog or any third party contained on or in Products or Documentation delivered to Customer, and Customer will reproduce all such notices on all copies permitted to be made by Customer under this Agreement. Customer will take any and all actions that may reasonably be required by Blue Dog to protect the propriety right as owned by Blue Dog or third party providers.
4.6 Blue Dog may use all suggestions, feedback, improvements, report formats or the like that Customer provides to Blue Dog or otherwise makes with respect to Products without obligation to Customer.
4.7 In the event the Products licensed hereunder are provided along with any web tool or search engine or software in order to access the Products (“Software”) Customer undertakes and agrees to use the Software only for purpose of accessing the Products and subject to the restrictions as set forth herein. Customer may not transfer, sublicense, relicense or commercially exploit the Software or use such Software for third party transactions, commercial time-sharing, rental or service bureau use or publicly perform or publicly display the Software. Customer must take all reasonable steps to ensure that no unauthorized persons shall have access to the Software. Customer must not reverse engineer, disassemble, decompile, create derivative works or otherwise alter or modify the Software. Unless otherwise agreed, Customer shall not be entitled to any technical support in relation to the software.
5.1 Where either party (“Discloser”) provides the other (“Recipient”) with Confidential Information (as defined below), it shall be held in strict confidence and shall not be disclosed or used for any purpose other them as specifically authorized by either party or as expressly provided in this agreement without the prior written consent of the other. The parties shall exercise the same degree of care they use to protect their own confidential or proprietary information but no less than a reasonable degree of care. In connection herewith, but not in any way in limitation hereof, each of the parties recognizes that information concerning each other’s business is proprietary. Accordingly, each of the parties agrees to hold in confidence all information learned by them concerning the other’s business, and such confidential and proprietary information shall not be disclosed to any third party.
5.2 For the purpose of this section, “Confidential information” means: (a) information related to Products, Documentation, Blue Dog methodologies and or intellectual property, including any of the foregoing related to a Blue Dog Affiliate; (b) any Discloser’s business or technical information, including, without limitation, any information relating to Discloser’s products, services, prices, marketing plans, business process management, analytics technologies, business opportunities, customers, or personnel; (c) any other information of Discloser that is specifically designated as confidential or proprietary; or (d) any information that by its nature, Recipient knows or should know is confidential or proprietary. Confidential information shall not include information: (i) which is or becomes public knowledge other than by a breach of this clause, (ii) that is required to be disclosure by any applicable law, (iii) obtained from a third party without breach of an obligation of confidentiality or (iv) information which can be shown to have been independently developed by the parties by means other than through its access to the confidential information or material.
6. Warranties and Disclaimers.
6.1 Each party represents and warrants that it is fully authorized to enter into this Agreement and perform all of its obligations hereunder.
6.2 CUSTOMER ACKNOWLEDGES THAT IT HAS EXAMINED AND IS SATISFIED WITH THE PRODUCTS AND THAT IT IS ACCEPTING THE PRODUCTS "AS IS".
6.3 BLUE DOG OR ANY BLUE DOG AFFILIATE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND OR DESCRIPTION, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS EXCEPT THAT BLUE DOG OWNS THE PRODUCTS AND MAY LICENSE IT TO CUSTOMER PURSUANT TO THIS AGREEMENT. ANY USE WHICH CUSTOMER MAKES OF THE PRODUCTS AND ANY ACTION WHICH CUSTOMER TAKES BASED ON THE PRODUCTS WILL BE AT CUSTOMER'S SOLE RISK, EXPENSE AND LIABILITY, AND CUSTOMER WILL NOT HAVE ANY CLAIM AGAINST BLUE DOG OR ANY BLUE DOG AFFILIATE BY REASON OF ANY SUCH USE OR ACTION. BLUE DOG AND ANY BLUE DOG AFFILIATE DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS, WHETHER STATUTORY, ARISING FROM COURSE OF DEALING, OR OTHERWISE, INCLUDING WITHOUT LIMITATION TERMS AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CUSTOMER ASSUMES ALL RISK IN USING THE RESULTS OF PRODUCT(S).
6.4 Blue Dog or any Blue Dog Affiliate does not have any and shall not incur any liability to Customer with respect to the Products other than as expressly set forth in this Agreement, and Customer will have no other remedies other than those expressly granted under this Agreement.
7.1 Blue Dog will indemnify, defend and hold harmless Customer from and against any third party claims alleging that Products furnished under and used in accordance with the terms and conditions of this Agreement infringe or misappropriate a US patent issued as of the Effective Date or US copyright, trademark or trade secret (“Infringement Claim”). Blue Dog will not so indemnify, defend and hold harmless Customer to the extent any Infringement Claim would not have arisen but for: (a) any modification of a Product not specifically authorized in writing by Blue Dog; (b) the incorporation of any data or information provided by or requested by Customer into a Product; (c) the combination of Product with any third party software, equipment or information not specified in the Documentation; (d) the use of a version of a Product other than the version provided to Customer by Blue Dog (as may be updated or replaced at Blue Dog’s sole discretion as set forth in this section below); or (e) Customer’s misuse of the Product or failure to protect Blue Dog Confidential Information as required herein. In the event Products are held or are believed by Blue Dog to infringe, Blue Dog may choose, at its sole option and expense, (i) to modify the Products so that they are non-infringing; (ii) to replace the Products with non-infringing Products that are functionally equivalent; (iii) to obtain a license for Customer to continue to use the Products as provided hereunder; or if none of (i), (ii), or (iii) is commercially reasonable, then (iv) to terminate this Agreement for the infringing Products and refund Fees paid, prorated from the date Customer could not use the Products due to the Infringement Claim. This Section 7.1 sets forth Blue Dog’s sole liability to Customer for any Infringement Claim and Customer’s sole and exclusive remedy for any Infringement Claim. Customer by executing that Agreement acknowledges and agrees to the limitations set forth in this Section 7.1.
7.2 Customer will indemnify and hold Blue Dog and Blue Dog Affiliates harmless from and against any loss or damage suffered by Blue Dog and Blue Dog Affiliates as a result of Customer’s breach of the licenses and rights granted herein, as well as an Infringement Claim caused as a result of subsections (a), (b), (c), (d) or (e) in Section 7.1 above.
7.3 Each party will indemnify and hold the other party harmless from any claim, demands, liabilities, suits or expenses of any kind for personal injury or damage to tangible property to the extent arising from its gross negligence or willful misconduct on the other party’s premises.
7.4 The indemnification obligations of each party under this Section 7, are contingent upon the indemnified party providing to the party who has the indemnification obligation: (a) prompt written notice of the alleged claim; (b) sole control of the defense or settlement of the alleged claim; and (c) reasonable cooperation and assistance, at the request and expense or party to indemnify, in the defense or settlement of the alleged claim. If the indemnified party chooses to be represented by counsel, it shall be at the indemnified party’s sole cost and expense.
8. LIMITATION OF LIABILITY.
8.1 IN NO EVENT WILL EITHER PARTY OR ANY BLUE DOG AFFILIATE BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, SUFFERED BY THE OTHER PARTY, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST DATA, LOSS OF REPUTATION, LOSS OF GOOD WILL, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF OR INABILITY TO USE PRODUCTS. BLUE DOG OR ANY BLUE DOG AFFILIATE IS NOT LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO: (i) USE OF PRODUCTS; OR (ii) MODIFICATIONS TO PRODUCTS’ WHETHER SUCH DAMAGES ARE SUFFERED BY CUSTOMER OR ANY THIRD PARTY. CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY BY BLUE DOG ARE SET FORTH IN THIS AGREEMENT. EACH PARTY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY AND AGREES THAT ANY DISPUTE ARISING OUT OF THIS AGREEMENT WILL BE DECIDED BY COURT TRIAL WITHOUT A JURY.
8.2 BLUE DOG’S, INCLUDING ANY BLUE DOG AFFILIATE’S, TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS WILL NOT EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE PRODUCTS FOR THE IMMEDIATELY PRECEDING SIX (6) MONTHS PRIOR TO THE EVENT RESULTING IN SUCH DAMAGES. Customer acknowledges that the Blue Dog pricing reflects the allocation of risk, and the limitation of liability specified in this section will apply regardless of whether any limited or exclusive remedy specified in this Agreement falls of its essential purpose.
8.3 The limitations set forth in this Section 8 shall not apply to (a) damages related to death or personal injury arising out of the gross negligence or willful act of the other party; and (b) any damages or liability incurred as a result of fraud or fraudulent misrepresentation of the other party.
9.1 Either party may terminate this Agreement if: (a) the other party commits a breach of any material term or conditions of this Agreement and does not cure such breach within fifteen (15) days of written notice thereof; or (b) the other party’s assets are transferred to an assignee for the benefit or creditors, to a receiver or to a trustee in bankruptcy, a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days, or the other party is adjudged bankrupt.
9.2 Blue Dog may terminate or suspend its performance under this Agreement with no less than five (5) days written notice if: (a) necessary, as expressed by an opinion of outside counsel to protect its legal liability to third parties; or (b) it has reasonable evidence of the other party’s fraudulent or illegal use of Products or any Documentation; or (c) required by legal or regulatory authority.
9.3 Upon the termination of this Agreement all Fees owed by Customer through the date of termination automatically and immediately become due and payable to the extent not already paid as of the date thereof.
9.4 Upon any expiration or other termination of this Agreement all licenses granted herein immediately and automatically terminate. Customer represents and warrants that upon expiration or other termination of this Agreement, Customer immediately will (a) discontinue all use of Product(s); (b) destroy any items related to Products (including but not limited to data, software, and Documentation) and purge any Product data from all electronic media; and (c) provide a notarized written certification to Blue Dog that Customer has complied with this Section 9.
10. Audit. Upon reasonable notice by Blue Dog to Customer, and not more than once annually (unless prior violations have been discovered), Blue Dog may audit relevant records at Customer’s location during normal business hours to enable Blue Dog to ensure Customer’s compliance with this Agreement.
11. Force Majeure. Either party may be excused from the performance of any obligation under this Agreement, except monetary payment for any Products, due to any act or condition whatsoever beyond the reasonable control of and not occasioned by the fault or negligence of such party, including without limitation, acts of God, acts of terrorism, acts of nature or of a public enemy, acts of a federal government or any state or political subdivision thereof, internet outages, fires, floods, explosions, wars, or other catastrophes; labor disturbances; freight embargos; delays of a supplier or subcontractor due to such causes.
12. Non-solicitation. Customer agrees that during the term of this Agreement and for a period of six (6) months following the termination or expiration of the term of this Agreement, Customer will not directly or indirectly in any way: (a) induce or attempt to induce any employee or other service provider of Blue Dog or any Blue Dog Affiliate to terminate employment or retainer with Blue Dog or any Blue Dog Affiliate; (b) otherwise interfere with or disrupt Blue Dog's or Blue Dog Affiliate’s relationship with its employees or other service providers; (c) discuss employment opportunities or provide information about competitive employment to any of Blue Dog's or Blue Dogs Affiliate’s employees or other service providers; or (d) solicit, entice, or hire away any employee or other service provider of Blue Dog or any Blue Dog Affiliate.
13.1 The parties are independent contractors and nothing in this Agreement will be constructed to create a partnership, joint venture or employment relationship between the parties.
13.2 This Agreement set forth the entire agreement between the parties and supersede any and all prior proposals, agreements or communications, written or oral, of the parties with respect to the subject matter hereof. Nothing contained in any Customer issued purchase order, purchase order acknowledgement, purchase order terms and conditions or invoice will in any way modify or add any additional terms or conditions to this Agreement. Such Customer issued purchase orders are for Customer’s internal purposes only and do not affect in any way Blue Dog’s obligations under this Agreement.
13.3 The Parties may not modify, alter or amend this Agreement except by written instrument duly executed by authorized representatives of both parties.
13.4 No failure or delay by either party to exercise any right hereunder at any time operates as a waiver of such right at any future time.
13.5 Customer may only assign this Agreement to any third party (whether directly or indirectly, by operation of law or otherwise) with the prior written consent of Blue Dog, which consent will not be unreasonably conditioned, withheld or delayed. Any requested assignment (a) to a direct competitor of Blue Dog; (b) that would interfere with performance of obligations under this Agreement: or (c) that changes the scope of the usage and the intent contemplated by the parties under this Agreement, is deemed unreasonable. Any assignment or transfer in violation of the above is void. Blue Dog may assign this Agreement without the consent of Customer.
13.6 This Agreement is binding on the parties, their successors and permitted assigns. Blue Dog at its sole discretion reserves the right to subcontract any or all of its obligations under this Agreement to subcontractors of its choosing.
13.7 THIS AGREEMENT WILL BE CONSTRUCTED UNDER THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES. ANY ACTION TO ENFORCE THE TERMS OF THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS SITUATED IN BROWARD COUNTY, FLORIDA AND EACH PARTY HERETO EXPRESSLY WAIVES ANY OBJECTION TO VENUE BASED ON FORUM NON-CONVENIENCE OR ANY OTHER REASON. IN THE EVENT ANY PARTY INSTITUTES LITIGATION TO ENFORCE OR INTERPRET THE TERMS OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO BE REIMBURSED FOR ATTORNEYS’ FEES AND COURT COSTS INCURRED.
13.8 If any term or provision of this Agreement should be held invalid or unenforceable, the parties to this Agreement shall endeavor to replace such invalid terms or provisions by valid terms and provisions that correspond to the best of their original economic and general intentions. The invalidity or unenforceability of any term or provision hereof shall not be deemed to render the other terms or provisions hereof invalid or unenforceable.
13.9 All notices required under this Agreement must be in writing and delivered by commercially established courier service, facsimile with written confirmation of success, personal courier or via certified mail, return receipt requested, to the addresses designated by the parties. Notices are deemed delivered when received by any of the above means.
13.10 Blue Dog and Customer agree that Blue Dog may publicize the fact that Customer is a user of the Products in a mutually agreed upon initial press release. Thereafter, Blue Dog will use Customer name only in a list of other Blue Dog Customers. Any additional publicity concerning Customer will require Customer’s prior written consent.
13.11 The terms and conditions of this Agreement will survive the expiration or other termination to the fullest extent necessary for their enforcement and for the realization of the benefit there of by party in whose favor they operate.
13.12 Each person executing this Agreement on behalf of any entity hereby represents and warrants that he/she is duty authorized and has full authority to execute and deliver this Agreement.
13.13 No delay or omission to exercise any right or power shall be construed to be a waiver of any default or acquiescence therein or a waiver of any right or power, and every such right and power may be exercised from time to time and as often as may be deemed expedient. Either party’s acceptance of any performance due hereunder that does not comply strictly with the terms hereof shall not be deemed to be waiver of any right of such party to strict performance by the other party. Acceptance of past due amounts or partial payments shall not constitute a waiver of full and timely payment of any sums due hereunder
13.14 This Agreement shall be deemed as accepted upon Blue Dog's receipt of a corresponding electronic acknowledgment or use of the Products by Customer, whichever occurs first. The parties will not contest the validity or enforceability of this Agreement or whether this Agreement be in writing and signed by the party to be bound thereby. Properly authenticated evidence of the acceptance of this Agreement by Customer shall be admissible in any judicial, arbitration, mediation, or administrative proceedings, to the same extent and under the same conditions as other business records originated and maintained in paper.