Standard Terms and Conditions
Last amended on June 2, 2020
THESE STANDARD TERMS AND CONDITIONS (TOGETHER WITH THE BLUEBIRD (AS DEFINED BELOW) DOCUMENTS REFERENCED HEREIN, THESE “STANDARD TERMS”) ARE FOR BLUEBIRD CX, INC. (“BLUEBIRD”) AND APPLY TO THE PROVISION OF ACCESS TO THE BLUEBIRD TECHNOLOGY (AS DEFINED BELOW) AND RELATED SERVICES PURSUANT TO THE QUOTATION OR OTHER DOCUMENTATION INTO WHICH THESE STANDARD TERMS ARE INCORPORATED BY REFERENCE (THE “QUOTATION”) SIGNED OR OTHERWISE AGREED TO BY CUSTOMER (AS DEFINED IN THE QUOTATION). CAPITALIZED TERMS USED, BUT NOT DEFINED, HEREIN WILL HAVE THE MEANINGS SET FORTH IN THE QUOTATION. ACCEPTANCE OF THESE STANDARD TERMS IS REQUIRED AS A CONDITION TO ACCESSING AND USING THE BLUEBIRD TECHNOLOGY.
Subject to the terms and conditions of this Agreement, Bluebird will make available to Customer (including its Bluebird Platform Users (as defined below)) Bluebird’s software-as-a-service platform, whereby Bluebird (a) allows Customer to send Customer-branded and/or personalized goods, gift cards, handwritten notecards, and promotional materials (“Products”) to Customer’s end customers, employees, or prospective customers and (b) analyzes certain data provided by Customer and Bluebird Platform Users and provides Customer with reports and notifications based on Bluebird’s analysis of such data (the “Platform”). The Platform enables Customer to build relationships and drive engagement with its end customers by placing orders for Products (“Orders”). Subject to the terms and conditions of this Agreement and solely to facilitate Customer’s access and use of the Platform, Bluebird will make available to Customer Bluebird’s browser extension, application programming interface(s), and related software applications, each in object code format only (the “Software” and together with the Platform, the “Bluebird Technology”). The Bluebird Technology will include any updates that are made generally available by Bluebird to its customers at no additional charge, but excludes any separate features or additional functionality or services that are made available by Bluebird for an additional charge.
- GRANT OF RIGHTS; RESTRICTIONS
- Bluebird Platform. Subject to the terms and conditions of this Agreement:
- Access Grant. Bluebird will make available to Customer and Bluebird Platform Users (as defined below) via the Internet the Platform. Bluebird hereby grants Customer a non-exclusive, non-transferable (except as set forth in Section 10.4), non-sublicensable right to access and use the Platform through any web-based application or interface made available to Customer by Bluebird solely for Customer’s internal business purposes.
- Bluebird Platform Users. The Platform will be accessed or used only by the employees or contractors of Customer who are authorized to access the Platform using a user identifier and password provided to Customer by Bluebird (“Bluebird Platform Users”). Customer will not make available the Platform to any person or entity other than Bluebird Platform Users. Customer will be responsible for the Bluebird Platform Users’ compliance with this Agreement and for maintaining the confidentiality of all secure login information, passwords and other information related to its and its Bluebird Platform Users’ respective accounts at all times.
- Monitored Users Limits. Customer’s access and use of the Platform is subject to the monitored user limits set forth on the Quotation. Bluebird reserves the right to prevent or limit usage of the Platform in excess of such limits.
- Bluebird Software.
- License Grant. Subject to the terms and conditions of this Agreement, Bluebird hereby grants Customer a non-exclusive, non-transferable (except as set forth in Section 10.4), non-sublicensable right and license solely to (i) download and install the Software on Customer’s (including its employees’ and contractors’) systems and (ii) to use the Software to access and use the Platform as permitted by this Agreement.
- Open Source Software. The Software may contain or be provided together with open source software (“Open Source Software”). If required by any license for particular Open Source Software, Bluebird makes such Open Source Software, and Bluebird’s modifications to that Open Source Software (if any), available at bluebird.cx/legal/open-source. For a current list of Open Source Software utilized in the Software and additional information related thereto, please see bluebird.cx/legal/open-source. Copyrights to the Open Source Software are held by the respective copyright holders indicated therein.
- Restrictions. Customer will not, and will not, directly or indirectly, permit any third party (including Bluebird Platform Users and Customer’s employees and contractors) to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Bluebird Technology available to any third party; (b) copy, modify, duplicate, reproduce, translate, or otherwise create derivative works based on the Bluebird Technology; (c) interfere with or disrupt the integrity or performance of the Bluebird Technology; (d) reverse engineer, decompile, disassemble, re-program, or analyze the Bluebird Technology (in whole or in part) or otherwise attempt to reconstruct, identify or discover the source code, object code or underlying structure, ideas or algorithms of the Bluebird Technology (except to the extent such restriction is prohibited by law); (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Bluebird Technology or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (f) remove or obscure any proprietary notices or labels of Bluebird on the Bluebird Technology or Bluebird Content (as defined below); (g) use the Bluebird Technology or any information contained therein or otherwise provided by Bluebird or its licensors for the purposes of developing, or having developed, any products or services competitive with the Bluebird Technology; or (h) otherwise access or use the Bluebird Technology in a manner inconsistent with this Agreement or applicable law.
- OWNERSHIP; RESERVATION OF RIGHTS; CUSTOMER DATA
- Reservation of Rights. Subject only to the rights expressly granted to Customer under this Agreement, as between Bluebird and Customer all rights, title and interest in and to the Bluebird Technology and all reports, information, content and materials shared with Customer in connection therewith (“Bluebird Content”) will remain with and belong exclusively to Bluebird. Customer is permitted to make a reasonable number of copies of the Bluebird Content in the form provided by Bluebird, and Customer will use the Bluebird Content (including any such copies) solely for Customer’s internal business purposes.
- Feedback. Customer may elect from time to time to provide suggestions or comments regarding enhancements or functionality or other feedback to Bluebird with respect to the Bluebird Technology or other Bluebird products and services (“Feedback”). Bluebird will have full discretion to determine whether to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Bluebird a royalty-free, fully paid up, worldwide, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, irrevocable license to (a) copy, distribute, transmit, display, perform, and modify and create derivative works of the Feedback, in whole or in part; and (b) use the Feedback and/or any subject matter thereof, in whole or in part, including the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which incorporate, practice or embody, or are configured for use in practicing, the Feedback, in whole or in part.
- Customer Data.
- Customer will be solely responsible for the data collected from Customer and/or otherwise provided by Customer to Bluebird, including through the Platform, to enable the provision of the Platform to, and operation of the Bluebird Technology by, Customer or otherwise to perform its obligations hereunder (collectively, “Customer Data”). As between the Parties, Customer will retain all right, title and interest in and to the Customer Data.
- Customer hereby grants to Bluebird a non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable right and license to copy, distribute, display, modify, create derivative works of and otherwise use the Customer Data to perform Bluebird’s obligations under this Agreement.
- Customer also hereby grants to Bluebird a non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable and irrevocable license to copy, modify, process and create derivative works of Customer Data, in whole or in part, for the purpose of deriving anonymous statistical and usage data, and data related to the functionality of Bluebird’s products and services, provided such data cannot be used to identify Customer, its Bluebird Platform Users, or its end customers (“Anonymous Data”). Anonymous Data does not constitute Customer Data. Bluebird may use Anonymous Data for any purpose, including combining or incorporating such Anonymous Data with or into other data and information available, derived or obtained from other customers, licensees, users, or other sources and for improving Bluebird’s existing products and services, developing new Bluebird products and services and for marketing purposes (e.g., indicating the number of customers using Bluebird products and services and statistical information regarding Orders, pricing and conversion rates).
- Data Processing Addenda. To the extent Bluebird processes Customer Personal Data (as defined in the DPA) that is subject to the GDPR (as defined in the DPA), the GDPR Data Processing Addendum available at bluebird.cx/legal/DPA will apply (“DPA”). To the extent Bluebird processes Customer Personal Information (as defined in the CCPA Addendum) that is subject to the CCPA (as defined in the CCPA Addendum), the CCPA Addendum available at bluebird.cx/legal/CCPA will apply.
- Customer Brands. Subject to the terms and conditions of this Agreement, Customer hereby grants Bluebird a worldwide, non-exclusive, royalty-free, non-transferrable (except as set forth in Section 10.4), fully paid-up, royalty-free, sublicensable right and license to copy, use, display, distribute, modify, and create derivative works of Customer’s trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or other identification and content of Customer that Customer makes available to Bluebird (“Customer Content”) to brand and customize the Products in accordance with the applicable Order and perform Bluebird’s other obligations pursuant to this Agreement. Any other proposed use of the Customer Content will be subject to Customer’s prior written approval in each instance, except that Bluebird may display Customer’s name and logo on Bluebird’s website and in other marketing materials solely to identify Customer as a customer.
- Customer Responsibilities.
- Bluebird Technology. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Bluebird Technology and notify Bluebird promptly of any such unauthorized access or use, and (i) use the Bluebird Technology only in accordance with the documentation, applicable laws and regulations and the terms of this Agreement.
- Products and Orders. When placing an Order, Customer may elect for Bluebird to personalize and brand for Customer a number of goods or promotional materials preconfigured within the Platform, or, subject to the below requirements, Customer may ship or have shipped to Bluebird other goods or promotional materials that it wishes Bluebird to make available for Customer’s Orders through the Platform (“Customer-Sourced Products”). If Customer elects to ship or have shipped to Bluebird any Customer-Sourced Products, Customer will inform Bluebird in advance in writing and may not arrange such shipment unless and until the parties mutually agree on delivery dates, shipping locations, and related terms. Once received and logged by Bluebird, Customer-Sourced Products will be available for Orders through Customer’s account and, for clarity, constitute “Products” hereunder. All costs of Products (including the personalization thereof and branding with the Customer Brands) and related shipping costs will be borne by Customer. Customer will provide to Bluebird all information necessary for Bluebird to perform its obligations under this Agreement. As between the parties, Customer will be solely responsible and liable for any Orders (including the accuracy and completeness of the Customer Data submitted in connection therewith) and all Products (including any costs related thereto).
- Bluebird Responsibilities.
- Platform. Bluebird will use commercially reasonable efforts to provide the Platform in a manner that minimizes errors and interruptions in accessing the Platform. Bluebird will provide second tier technical support to Bluebird Platform Users for issues and questions arising from the operation of the Bluebird Technology. Bluebird will implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Customer Data that this Agreement does not expressly authorize.
- Orders. Bluebird may subcontract or otherwise delegate responsibilities for Orders (including deliveries) through its third-party contractors. Bluebird (including its subcontractors) is a bailee with respect to Products and is forwarding Products to the applicable end customer on Customer’s behalf, and Bluebird (including its subcontractors) is neither a seller nor a distributor of any Products. Title to all Products will at all times remain with Customer until delivered to the applicable end customer(s), at which time title to such Products will pass directly from Customer to such end customer(s). Customer understands that Bluebird does not keep inventory of any stock goods, notecards or promotional materials on-hand and that at the time of an Order Bluebird will arrange with its third-party suppliers and vendors on Customer’s behalf the personalization, branding, and/or shipment of the applicable Products. If after the shipment of the Products in connection with the applicable Order there is remaining Product inventory from such Order, Bluebird will store such Product inventory at Customer’s expense and the same will be available for future Orders.
- Services. From time to time, Bluebird may agree to provide implementation, integration, consulting and other services (the “Services”) described in a statement of work that is executed by both Parties and expressly references this Agreement (each, a “Statement of Work”). Such Services will be provided in accordance with the provisions of this Agreement and the applicable Statement of Work. Each Statement of Work will contain a description of the tasks to be performed, a schedule of payments and payment terms (if applicable) and any additional terms and conditions as the Parties may wish to include. Bluebird’s performance of the Services is dependent in part on Customer’s actions. Accordingly, Customer will use reasonable efforts to provide Bluebird with the items and assistance necessary for Bluebird to complete the Services. Any dates or times relevant to performance by Bluebird hereunder will be appropriately and equitably extended to account for any delays or change in assumptions due to Customer. In the event of a conflict between any term or condition of this Agreement and any Statement of Work, the applicable term or condition of this Agreement will govern unless and solely to the extent that the Parties expressly state in such Statement of Work that they intend to override the terms and conditions of this Agreement. Upon execution of any Statement of Work, the terms and conditions of such Statement of Work are hereby incorporated into and become part of this Agreement.
- PAYMENT TERMS
- Fees; Payment Terms. Customer will pay to Bluebird the total fees as set forth on the Quotation or Statement of Work, as applicable, in accordance with the payment schedule set forth on such Quotation or Statement of Work, as applicable. All fees paid are non-refundable. If payment of any fees (including any reimbursement of expenses) is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Bluebird within thirty (30) days from the time such payment is due, Bluebird may suspend access to the Bluebird Technology until such payment is made. At its discretion, Bluebird may increase the pricing stated on the Quotation for any Renewal Term (as defined below) upon giving Customer at least seventy-five (75) days’ notice (which may be sent by email) prior to the end of the then-current term.
- Orders. If Customer (including its Bluebird Platform Users) places an Order for Products through the Platform, Customer understands that the pricing for Orders (including shipping and handling fees and Taxes (as defined below)) will be determined solely by Bluebird. Shipping and handling fees for a given Order will be calculated once Bluebird receives from Customer all relevant recipient shipping information. Shipping and handling fees may be debited against a deposit previously made by Customer or Bluebird may coordinate with Customer’s existing shipping carrier which would then bill Customer directly for such fees through Customer’s freight account, as the parties mutually agree. Bluebird will not begin processing an Order until Customer makes payment in full for such Order. As between the parties, Customer will be responsible for all payment processing fees, Taxes, shipping and handling fees, storage fees, and any other fees and expenses in connection with any Order.
- Net of Taxes. All amounts payable by Customer to Bluebird hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Bluebird. Customer will not withhold any Taxes from any amounts due to Bluebird.
- TERM, TERMINATION
- Term. Unless otherwise specified on the Quotation, this Agreement will commence on the Start Date and will continue for one (1) year from the Start Date, unless earlier terminated as set forth herein. Thereafter, this Agreement will automatically renew for additional one (1) year periods (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the end of the then current term. Bluebird may, from time to time, amend these Standard Terms, and will post such amended Standard Terms on Bluebird’s website at bluebird.cx/legal/terms, noting the date of the last such amendment. Upon the commencement of any Renewal Term, this Agreement will renew on the then-current version of these Standard Terms.
- Termination. Either party may terminate this Agreement (a) in the event of a breach of this Agreement by the other party that is not cured within thirty (30) days (or ten (10) days in the event of non-payment) after the breaching party receives notice of such breach or (b) upon the commencement of any bankruptcy proceeding (or other insolvency proceeding) of the other party or the dissolution of the other party. In addition, Bluebird may terminate this Agreement immediately in the case of a breach by Customer of Section 1.3. Neither party will incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination by such party (or expiration) that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses.
- Effect of Expiration or Termination. Except as expressly stated herein, upon expiration or termination of the Agreement, (a) all rights granted hereunder and all obligations of Bluebird to provide the Bluebird Technology or the Services will immediately terminate; (b) Customer will immediately cease use of the Bluebird Technology and uninstall all copies of the Software from its (including its Bluebird Platform Users’, employees’ and contractors’) systems; and (c) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information, subject to Bluebird’s rights in Section 2.3(c). Upon Customer’s written request within thirty (30) days after such expiration or termination, Bluebird will make available to Customer an export of Customer Data in Bluebird’s systems in a format reasonably requested by Customer, subject to Bluebird’s rights in Section 2.3(c). After the expiration of such thirty (30) day period, Bluebird may at its discretion purge Customer Data from its systems. To the extent Bluebird has in its possession at the time of the expiration or termination of this Agreement any remaining Product inventory, Customer will provide Bluebird with written notice within thirty (30) days after such expiration or termination providing Bluebird with instructions as to the return or destruction of such Product inventory. If Customer wants such Products returned to it, Customer will pay to Bluebird in advance all related shipping costs and provide Bluebird with all reasonably requested shipping information. If Customer does not provide Bluebird with written instructions regarding such Product inventory within such 30-day period, or does not pay the return shipping costs and provide the requested shipping information to Bluebird within thirty (30) days of receipt of Bluebird’s request for the same (by invoice or otherwise), Bluebird may at its sole discretion offload or destroy such Product inventory without further responsibility or liability to Customer.
- Survival. Sections 1.3 (Restrictions), 2.1 (Reservation of Rights), 2.2 (Feedback), 2.3(c), 4 (Payment Terms), 5.3 (Effect of Expiration or Termination), 6 (Confidential Information), 7.4 (Exclusions), 8 (Indemnification), 9 (Limitation of Liability), and 10 (General) will survive the termination or expiration of this Agreement.
- CONFIDENTIAL INFORMATION
- Definition. The Parties anticipate that they will exchange confidential information during the Term. “Confidential Information” means any and all tangible and intangible information or data, either written, oral, or in any other medium, disclosed or made available by a party (“Disclosing Party”) to the other party (the “Receiving Party”), including research and development, patents or trade secrets, financial information, know-how, designs, samples, processes, methodologies, manuals, vendor names, supplier lists, customer lists and other information related to clients, employee lists, databases, sales and marketing information, and computer programs, or any other confidential information or proprietary aspects of the business of the Disclosing Party. The Bluebird Technology and all information related thereto (including Bluebird Content). The Customer Data is Customer’s Confidential Information (subject to the rights expressly granted to Bluebird herein). Information will not be considered to be Confidential Information to the extent that the Receiving Party can prove by reliable written record that such information: (a) is already known to the Receiving Party free of any restriction at the time it is obtained by the Receiving Party; (b) is subsequently learned from an independent third party lawfully in possession of the same and free of any restriction or obligation of confidentiality in favor of the Disclosing Party and without breach of this Agreement; (c) becomes publicly available through no wrongful act of the Receiving Party; or (d) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the other Party.
- Obligations. Each party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a party, and each Receiving Party agrees that it will use the Confidential Information of the Disclosing Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the Disclosing Party’s prior written consent, except as otherwise permitted hereunder. The Receiving Party will use reasonable measures to protect the confidentiality and value of the Disclosing Party’s Confidential Information. Notwithstanding any provision of this Agreement, the Receiving Party may disclose the Disclosing Party’s Confidential Information, in whole or in part (a) to its employees, officers, directors, consultants, contractors and/or professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound by written agreements (or, in the case of professional advisors, are bound by ethical duties) imposing confidentiality and nonuse obligations with respect to such Confidential Information no less restrictive than those set forth in this Section 6; and (b) as reasonably deemed by the Receiving Party to be required by law (in which case the Receiving Party will provide the Disclosing Party with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Receiving Party agrees to exercise due care in protecting the Disclosing Party’s Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
- WARRANTIES AND EXCLUSIONS
- Mutual. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
- By Bluebird. Bluebird represents and warrants to Customer that (a) the Bluebird Technology will substantially conform with the specifications for the Bluebird Technology provided by Bluebird to Customer, and (b) Bluebird will not knowingly include in any Software provided to Customer any computer code designed to intentionally disrupt, disable or damage the operation of a network or computer system or any component thereof. In the event of a breach of the foregoing representations and warranties, Bluebird’s sole obligation, and Customer’s sole remedy, will be for Bluebird to use commercially reasonable efforts to correct the Bluebird Technology.
- By Customer. Customer represents, warrants, and covenants that (a) Customer has and will have the legal authority and all rights necessary (i) to provide the Customer Data to Bluebird and (ii) for Bluebird to fulfill its obligations and exercise its rights with respect to the Customer Data as set forth this Agreement; (b) it owns the Customer Content, or otherwise has the right to use the Customer Content as contemplated herein, and Bluebird’s (including its subcontractors’) performance of their obligations with respect to any of the Customer Content hereunder will not violate any rights of any person; (c) it has the right to deliver any Customer-Sourced Products to Bluebird and for Bluebird to forward the same to the applicable end customer; and (d) Customer will comply with applicable law.
- Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE BLUEBIRD TECHNOLOGY AND BLUEBIRD CONTENT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND THE PARTIES DISCLAIM ANY AND ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT BLUEBIRD DOES NOT WARRANT THAT THE BLUEBIRD TECHNOLOGY WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE FASHION AT ALL TIMES OR THAT THE BLUEBIRD TECHNOLOGY OR BLUEBIRD CONTENT WILL MEET CUSTOMER’S REQUIREMENTS. BLUEBIRD DOES NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BLUEBIRD TECHNOLOGY OR BLUEBIRD CONTENT. BLUEBIRD EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS. CUSTOMER ACKNOWLEDGES THAT THE BLUEBIRD CONTENT REFLECTS BLUEBIRD’S SUBJECTIVE ANALYSIS, CONCLUSIONS AND ASSESSMENTS, AND CUSTOMER AGREES THAT BLUEBIRD WILL HAVE NO LIABILITY TO CUSTOMER WITH RESPECT TO THE BLUEBIRD CONTENT, INCLUDING ANY STATEMENTS, INFORMATION OR OTHER CONTENT CONTAINED THEREIN. FURTHER, CUSTOMER AGREES THAT BLUEBIRD WILL HAVE NO LIABILITY FOR (A) ANY ACTIONS OR INACTIONS OF CUSTOMER IN RESPONSE TO OR AS A CONSEQUENCE OF ANY BLUEBIRD CONTENT OR ABSENCE OF BLUEBIRD CONTENT, OR (B) ANY DAMAGES SUFFERED BY CUSTOMER ARISING FROM OR IN CONNECTION WITH ANY ORDER. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
- By Bluebird. Bluebird will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Parties”) from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Customer Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of any copyright infringement claim or trade secret misappropriation claim that involves, relates to or concerns the Bluebird Technology (except for claims for which Bluebird is entitled to defense under Section 8.2, in which case Bluebird will have no obligations with respect to such claim). Bluebird will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by (a) modification of the Bluebird Technology in accordance with Customer’s specifications or instructions or by any party other than Bluebird without Bluebird’s express consent; (b) the combination, operation, or use of the Bluebird Technology with other product(s), data or services where the Bluebird Technology would not by itself be infringing; (c) unauthorized or improper use of the Bluebird Technology; or (d) use of the Bluebird Technology after Customer has been notified of the potential infringement. If the use of the Bluebird Technology by Customer has become, or in Bluebird’s opinion is likely to become, the subject of any claim of infringement, Bluebird may at its option and expense (i) procure for Customer the right to continue using the Bluebird Technology as set forth hereunder; (ii) replace or modify the Bluebird Technology to make it non-infringing so long as the Bluebird Technology has at least equivalent functionality; (c) substitute an equivalent for the Bluebird Technology; or (d) if options (i)–(iii) are not reasonably practicable, terminate this Agreement. This Section 8.1 states Bluebird’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
- By Customer. Customer will defend Bluebird and the officers, directors, agents, and employees of Bluebird (“Bluebird Parties”) from Liabilities that are payable to any third party or incurred by the Bluebird Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party arising from or related to (a) any use or disclosure by Customer of the Bluebird Technology in violation of this Agreement; (b) the exercise of any rights granted to Bluebird by Customer in or to the Customer Data or Customer Content; or (c) the Products (including any Orders, shipping loss or delay, damage, return, product liability claim, recall or investigation or any alleged or actual Product defect).
- Procedure. If a Customer Party or a Bluebird Party becomes aware of any matter for which it believes it should be defended under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against such party by any third party (each an “Action”), such Customer Party or Bluebird Party will (a) give the defending party prompt written notice of such Action; (b) cooperate, at the expense of the defending party, with the defending party and its counsel in the defense and the Customer Party or Bluebird Party, as applicable, and (c) have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld, conditioned or delayed.
- LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.3 (RESTRICTIONS) AND (B) EITHER PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM (I) CUSTOMER’S BREACH OF SECTION 1.3 (RESTRICTIONS) AND (II) EITHER PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 (INDEMNIFICATION), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME OF ANY CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
- Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (each, a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, the party not affected by the Force Majeure Event may terminate this Agreement by giving written notice thereof to the other party.
- Compliance with Laws. Customer will not transfer, either directly or indirectly, the Bluebird Technology, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and will otherwise comply with all other applicable import and export laws, rules and regulations.
- Publicity. Neither party will, without prior written consent of the other party, issue a press release or other public statements or announcements regarding their business relationship or entry into this Agreement, such consent not to be unreasonably withheld, conditioned or delayed.
- Assignment. Neither party may assign this Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section 10.4 will be null and void.
- Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of both Parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
- Relationship. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
- Headings; Interpretation. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All uses in this Agreement of “including” and similar terms will be interpreted to mean “including without limitation.”
- Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Start Date.
- Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the State of California without regard to its rules of conflict of laws. Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of California and of the United States of America located in Los Angeles County, California (the “California Courts”) for any litigation among the Parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the California Courts and agrees not to plead or claim in any California Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the California Courts.
- Injunctive Relief. Customer acknowledges that any unauthorized use of the Bluebird Technology will cause irreparable harm and injury to Bluebird for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Bluebird will be entitled to injunctive relief in the event Customer accesses or uses the Bluebird Technology in violation of this Agreement.
- Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (a) delivered personally; (b) sent by confirmed telecopy or other electronic means; (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the Quotation, or such other addresses designated pursuant to this Section 10.11.
- Entire Agreement; Conflicts. This Agreement (including the Quotation and any Statement(s) of Work) constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. In the event of a conflict between these Standard Terms and any Quotation, these Standard Terms will govern with respect to such conflict. In the event of any conflict between these Standard Terms and the DPA or CCPA Addendum, the DPA and/or CCPA Addendum, as applicable, will govern.
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