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.
Indemnification
To the fullest extent permitted by applicable law, you will indemnify, hold harmless and, at Bluumly's option, defend Bluumly and its officers, directors, agents and employees (individually and collectively, the "Bluumly Parties") from and against any fees, losses, liabilities, claims, actions, demands, damages, expenses, awards, or costs ("Claims") arising out of or related to (a) Your Data, (b) your breach or alleged breach of this Agreement, or (c) your actual or alleged infringement, misappropriation, or violation of the rights of another (including, without limitation, intellectual property rights, rights of publicity, or privacy rights). We may retain sole control of the defense and settlement, at our option, of any third-party Claims, in which case you will cooperate with us in defending such third-party Claim. If we permit you to defend a third-party Claim, we have the right to approve the counsel you select to defend such third-party Claim. Regardless of whether we permit you to defend such third-party Claim, you will pay all fees, losses, liabilities, damages, expenses, awards and costs associated with defending such third-party Claim (including attorneys' fees).
Term, termination and effect of Termination
9.1 Term This Agreement commences on the Effective Date and, unless earlier terminated as set forth in Section 9.2, continues through the initial monthly or annual subscription period you selected (the "Initial Subscription Period"). Thereafter, unless terminated as set forth in Section 9.2, this Agreement will automatically renew for successive subscription periods equal in length to the Initial Subscription Period (each, a "Renewal Subscription Period" and, individually and collectively with the Initial Subscription Period, the "Subscription Period").9.2 Termination Either party may terminate this Agreement at any time for convenience by closing your Account or by notifying the other party in writing. Additionally, (a) either party may terminate this Agreement for cause if the other party materially breaches this Agreement and does not remedy the breach within 30 days after its receipt of written notice of the breach and (b) notwithstanding the foregoing, Bluumly may immediately terminate this Agreement on written notice to you if you are, or Bluumly reasonably believes you are, in breach of Section 2.9.3 Effect of termination Upon any termination of this Agreement, (a) all rights granted to you under this Agreement and all obligations imposed on Bluumly under this Agreement will immediately cease and (b) the Receiving Party will use commercially reasonable efforts to promptly destroy all copies of Confidential Information of the Disclosing Party in the Receiving Party's possession, provided, that the Receiving Party may retain electronically-archived copies of Confidential Information subject to the terms of this Agreement while retained. Upon your termination of this Agreement or Bluumly's termination of this Agreement due to your breach, (i) you will not receive any refunds of any pre-paid fees covering the remainder of the then-current Subscription Period, regardless of when during such Subscription Period this Agreement terminates and (ii) if you owe Bluumly any fees as of the date of such termination, you will immediately pay those fees to Bluumly. Upon Bluumly's termination of this Agreement for convenience, (A) Bluumly will refund any pre-paid fees for the remainder of the then-current Subscription Period, which may be offset and reduced by any amounts you owe to Bluumly as of the date of termination and (B) if you owe Bluumly any fees as of the date of such termination after such offset, you will immediately pay those fees to Bluumly.9.4 Survival All defined terms and Sections 1.3, 2, 4, 5, 7, 8, 9.3, 9.4 and 10 will survive any termination or expiration of this Agreement.
General provisions
10.1 Entire agreement This Agreement sets forth the entire agreement, and supersedes any and all prior agreements, between the parties relating to the subject matter hereof.10.2 Governing law and venue This Agreement will be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions. You irrevocably submit to the exclusive jurisdiction of the state and federal courts in Orange County, California for any claims, actions, litigation, or other disputes you raise or file with respect to this Agreement.10.3 publicity Notwithstanding any terms to the contrary in this Agreement, you consent to Bluumly's use of your name and logo on the Bluumly website and on Bluumly's promotional and marketing related materials, identifying you as a customer of Bluumly and describing your use of the Services.10.4 Third-party services You acknowledge and agree that Bluumly may use software, hosting infrastructures, or other services provided by third parties in connection with the Services ("Third-Party Services") and, notwithstanding any terms to the contrary in this Agreement, Bluumly disclaims any liability with respect to the Third-Party Services. You agree to abide by the terms and conditions provided by Bluumly with respect to the Third-Party Services.10.5 Maintenance and ModificationsYou acknowledge and agree that (a) Bluumly may conduct maintenance on the Services from time to time without prior notice to you and (b) Bluumly may modify features of the Services from time to time at Bluumly's sole discretion, provided that those modifications will not materially degrade the Services.10.6 AssignmentYou may not assign, transfer, or delegate this Agreement, nor any right or duty under this Agreement, by merger, acquisition, operation of law or otherwise, without Bluumly's prior written consent, and any attempted transfer, assignment or delegation without that consent will be void and without effect.10.7 WaiversNo failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.10.8 Electronic Communications Bluumly may choose to electronically deliver all communications with you, which may include email to the email address on or linked to your Account. Bluumly's electronic communications to you may transmit or convey information about action taken on your request, portions of your request that may be incomplete or require additional explanation, any notices required under applicable law, and any other notices under this Agreement. You agree to do business electronically with Bluumly and to electronically receive all current and future notices, disclosures, communications, and information, and that such electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.10.9 SeverabilityIf any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, (a) that invalidity, illegality, or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable that provision in any other jurisdiction, and (b) that provision, in that jurisdiction, will be replaced by a valid, legal and enforceable provision that best reflects the parties' intent for that first provision.10.10 Audit Bluumly may, by itself or through an independent third party, audit your use of the Services to verify your compliance with the terms and conditions of this Agreement. You agree to provide reasonable access to your systems and records for purposes of conducting these audits.10.11 Force MajeureExcept for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any Third-Party Services providers, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.