Terms of Service
Last Updated: 15 February, 2024
Acceptance of Terms
This Services Agreement ("Agreement") is entered into as of the Effective Date (as defined below) by and between Bluumly, Inc. ("Bluumly," "we," or "us") and you or the entity you represent ("you") and governs your access and use of the Bluumly web application and related services (collectively, the "Services"). This Agreement is effective as of the date you indicate acceptance (e.g., via click-through or other electronic means) or otherwise access or use the Services (the "Effective Date").
PLEASE READ THIS AGREEMENT CAREFULLY. BY INDICATING ACCEPTANCE OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED IN THIS AGREEMENT AND ALL TERMS INCORPORATED INTO THIS AGREEMENT BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED IN THIS AGREEMENT, DO NOT USE THE SERVICES.
We may make changes to this Agreement from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email or providing a notice through our website. Unless we say otherwise in our notice, the amended Agreement will be effective immediately, and your continued use of the Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Agreement, you will stop using the Services. Notwithstanding the foregoing, any changes to this Agreement will not apply to any dispute between you and us arising prior to the date on which we posted the updated Agreement incorporating such changes or otherwise notified you of such changes.
Services
1.1 Access
Subject to the terms and conditions of this Agreement, Bluumly will provide you with access to the Services solely for your internal personal or business purposes.
1.2 Provision of data
Provision of Data. You hereby instruct and authorize Bluumly to, and grant Bluumly a non-exclusive, royalty-free right and license to, (a) use any data or information of or about you or your Users (as defined below) that is provided by you or such Users to Bluumly or collected through the Services ("Your Data") to provide the Services to, and communicate with, you and Users and (b) copy, modify, and create derivative works of Your Data in connection with (i) creating, testing, training and improving (A) algorithms and machine learning models within or in connection with the Services and (B) Usage Data (as defined below) and (ii) monitoring performance of the Services, improving the Services and/or developing new product or service offerings. Subject to the rights granted under this Agreement, you own and will continue to own all rights (including intellectual property rights), title and interest in and to Your Data.
1.3 Ownership.
Bluumly owns and will own all right, title and interest in and to (a) the Services, together with all components thereof and improvements thereto or derivative works thereof, (b) aggregations, modifications, analyses, enhancements and derivative works of or regarding Your Data made by or on behalf of Bluumly ("Usage Data") and (c) all intellectual property rights related to or embodied in the foregoing. No license or other right will be created under this Agreement by implication, estoppel or otherwise, except as specifically provided in this Agreement. You acknowledge that the Services include Bluumly's valuable trade secrets and improper use or disclosure may cause Bluumly irreparable harm. Accordingly, you agree to use the Services solely as authorized in this Agreement. You further acknowledge that the rights granted pursuant to this Agreement do not constitute a sale and do not transfer to you title or ownership of the Services, but only a right of limited use. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO Bluumly.
Restrictions
Except as expressly authorized by this Agreement, you may not, in whole or in part, (a) copy, modify, or create derivative works of the Services, (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services, (c) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate, create, or attempt to create the source code of the Services or its structural frameworks, or perform any process intended to determine the source code for the Services, (d) use the Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions, (e) copy, frame or mirror any part or content of the Services, (f) build a competitive product or service, or copy any features or functions of the Services, (g) interfere with or disrupt the integrity or performance of the Services, (h) attempt to gain unauthorized access to the Services or its related systems or networks, (i) disclose to any third party any performance information or analysis relating to the Services, (j) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Services or the functionality of the Services, (k) take any action that imposes an unreasonable or disproportionately large load on the Services, (l) use the Services for any purpose that is illegal in any way or that advocates illegal activity, or (m) cause or permit any User or any other individual or entity to do any of the foregoing.
Accounts and Eligibility
3.1 Accounts
To access and use the Services, you will (a) register for an electronic account with us (an "Account"), which you may do on our website or via authorized third-party methods, e.g., linking your third-party account credentials and (b) accept this Agreement. You may, on behalf of the entity you represent, create Accounts for each user that you authorize to access and use the Services (each, a "User"). The terms and conditions of this Agreement will apply to each such User. You will ensure that no User or other person accesses the Services on behalf of another person or entity and that no User shares or transfers access rights to the Services. You will, and will ensure that all Users, (i) provide accurate Account information and promptly update that information if it changes, (ii) maintain the security of each such Account and (iii) notify us in promptly in writing upon discovery or suspicion that someone has accessed such Account without permission. You are responsible for all acts and omissions of Users and any act or omission of any User will, for purposes of this Agreement, be deemed your act or omission.
3.2 Eligibility
You represent and warrant that you and all Users (a) are at least 18 years of age, (b) are not a resident of, or located in, any country subject to a United States embargo or other similar United States export restrictions, including Iran, Cuba, North Korea, the Region of Crimea, Sudan or Syria and (c) are not on the United States Treasury Department’s list of Specifically Designated Nationals, the United States Department of Commerce’s Denied Persons List or Entity List, or any other United States export control list.
Fees and payment terms
4.1 Fees
We charge a monthly or annual subscription fee for use of the Services, which we will disclose to you on our website. On a monthly or annual subscription basis during the Subscription Period (as defined below), we will either invoice you or we (or our authorized payment processor) will charge the credit/debit card you provided to us. If we invoice you, all amounts are due on the date set forth on the invoice. Unless we state otherwise, all payments (a) will be made in U.S. dollars, (b) by check or by bank wire transfer in immediately available funds to an account designated by us or by credit/debit card via Bluumly or our authorized payment processor, and (c) are non-refundable. Bluumly, at its sole discretion, may modify its fees during any applicable Subscription Period, provided that modifications will only be effective as of the directly subsequent Subscription Period.
4.2 Taxes
You will be responsible for and will pay all sales and similar taxes and fees levied upon the provision of the Services, excluding only taxes based solely on Bluumly's net income. You will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, whichever is lower.
4.3 Suspension
If any fees or other charges under this Agreement are 30 days or more overdue, Bluumly may, without limiting its other rights or remedies and notwithstanding any terms to the contrary in this Agreement, (a) suspend all Services until those fees are paid in full or (b) immediately terminate this Agreement without any further cure period and accelerate your unpaid fee obligations such that all those obligations become immediately due and payable upon termination.
Confidentiality
5.1 Definition
"Confidential Information" means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the "Disclosing Party") to the other party (the "Receiving Party") concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party.
5.2 Obligations
The Receiving Party will maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party's obligations or exercising the Receiving Party's rights under this Agreement. Neither party will disclose the terms or conditions of this Agreement to any third party, subject to Section 5.3 below.
5.3 Exceptions
The obligations of confidentiality and non-use in Section 5.2 will not apply to information that: (a) is or becomes publicly available without breach of this Agreement by the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession without obligation of confidentiality prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Additionally, notwithstanding Section 5.2, each party may disclose the terms and conditions of this Agreement: (i) to that party's equity holders, affiliates, consultants, legal counsel and financing sources; (ii) in connection with the enforcement of this Agreement or rights under this Agreement; or (iii) in connection with an actual or proposed equity investment, financing, change of control, merger, acquisition of all or a portion of the business or assets of that party, or any similar transaction. The foregoing confidentiality obligations will not apply to the extent that a party is required, in the reasonable opinion of that party's legal counsel, to disclose information by applicable law, regulation, rule (including rule of a stock exchange, listing agency or automated quotation system), order of a governmental agency or a court of competent jurisdiction or legal process, including tax authorities.
Representations and warranties
Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person entering into this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms. Further, you represent and warrant that (i) you possess all necessary rights and consents to grant Bluumly the rights set forth in this Agreement with respect to Your Data, (ii) you have collected Your Data in accordance with all applicable laws, rules, and regulations, (iii) neither Your Data, nor Bluumly's use of Your Data in accordance with this Agreement, will (x) infringe, misappropriate, or otherwise violate any rights of any third party or (y) violate applicable laws, rules, or regulations, and (iv) you will use the Services in accordance with all applicable laws, rules, and regulations.
Confidentiality
7.1 Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, THE SERVICES ARE PROVIDED OR OTHERWISE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE WARRANTIES EXPRESSLY INCLUDED IN SECTION 6 ARE IN LIEU OF, AND Bluumly EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR COURSE OF PERFORMANCE OR COURSE OF DEALING.
7.2 Limitation of liability
Limitation of Liability. Bluumly'S SOLE AND AGGREGATE LIABILITY TO YOU ON ANY AND ALL CLAIMS, LOSSES, OR LIABILITIES ARISING OUT OF THE RELATIONSHIP BETWEEN YOU AND Bluumly (INCLUDING THIS AGREEMENT), WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO DIRECT DAMAGES AND WILL IN NO EVENT EXCEED THE FEES ACTUALLY PAID TO Bluumly IN THE PRECEDING SIX MONTH PERIOD ASSOCIATED WITH SERVICES PROVIDED. IN NO EVENT WILL Bluumly BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS, BUSINESS, DATA, OR REPUTATIONAL DAMAGE.
Confidentiality
7.1 Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, THE SERVICES ARE PROVIDED OR OTHERWISE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE WARRANTIES EXPRESSLY INCLUDED IN SECTION 6 ARE IN LIEU OF, AND Bluumly EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR COURSE OF PERFORMANCE OR COURSE OF DEALING.
7.2 Limitation of liability
Limitation of Liability. Bluumly'S SOLE AND AGGREGATE LIABILITY TO YOU ON ANY AND ALL CLAIMS, LOSSES, OR LIABILITIES ARISING OUT OF THE RELATIONSHIP BETWEEN YOU AND Bluumly (INCLUDING THIS AGREEMENT), WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO DIRECT DAMAGES AND WILL IN NO EVENT EXCEED THE FEES ACTUALLY PAID TO Bluumly IN THE PRECEDING SIX MONTH PERIOD ASSOCIATED WITH SERVICES PROVIDED. IN NO EVENT WILL Bluumly BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS, BUSINESS, DATA, OR REPUTATIONAL DAMAGE.
Confidentiality
7.1 Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, THE SERVICES ARE PROVIDED OR OTHERWISE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE WARRANTIES EXPRESSLY INCLUDED IN SECTION 6 ARE IN LIEU OF, AND Bluumly EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR COURSE OF PERFORMANCE OR COURSE OF DEALING.
7.2 Limitation of liability
Limitation of Liability. Bluumly'S SOLE AND AGGREGATE LIABILITY TO YOU ON ANY AND ALL CLAIMS, LOSSES, OR LIABILITIES ARISING OUT OF THE RELATIONSHIP BETWEEN YOU AND Bluumly (INCLUDING THIS AGREEMENT), WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO DIRECT DAMAGES AND WILL IN NO EVENT EXCEED THE FEES ACTUALLY PAID TO Bluumly IN THE PRECEDING SIX MONTH PERIOD ASSOCIATED WITH SERVICES PROVIDED. IN NO EVENT WILL Bluumly BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS, BUSINESS, DATA, OR REPUTATIONAL DAMAGE.
6. Indemnification
You agree to indemnify and hold Cloze, its affiliates, directors, officers, employees, and agents