Please read these Terms carefully. By using Blue Umbrella or signing up for an account, you’re agreeing to these Terms, which will result in a legal agreement between you and Blue Umbrella (“Agreement”). We’ll start with the basics, including a few definitions that should help you understand these Terms. Blue Umbrella (“Blue Umbrella,” “we,” or “us”) is an online governance, risk and compliance platform (the “App”) that allows you to manage your Third Parties (defined below), and to create, send, respond to and manage certain questionnaires including anti-bribery and corruption, information technology security and privacy (each a “Questionnaire,” and collectively, “Questionnaires”), among other things. The App is offered through our websites, including http://www.blueumbrella.com and http://www.bluedd.com and any other website or mobile application owned, operated or controlled by us (we’ll collectively refer to these as the “Website,” and together with the App, the “Service”). Blue Umbrella is a company incorporated under the laws of Hong Kong whose legal name is Blue Umbrella Limited. Blue Umbrella has employees, independent contractors, and representatives (“our Team”). As a customer or user of the Service or a representative of an entity that’s a customer or user of the Service, you’re a “Member” according to this Agreement (and “you” refers to the customer or user of the Service or a representative of an entity that’s a customer or user of the Service, as applicable).
If you have any questions about our Terms, feel free to contact us.
In order to use the Service, you must:
By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.
If you sign up for an account on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on that entity’s behalf.
Blue Umbrella may refuse service, close accounts of any Members, and change eligibility requirements at any time.
When you sign up for an account and agree to these Terms, the Agreement between you and Blue Umbrella is formed, and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have a Blue Umbrella account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. You will gain access to your account within 24 hours of signing up for the Service.
You or Blue Umbrella may terminate the Agreement at any time and for any reason by terminating your Blue Umbrella account or giving notice to the other party. We may suspend the Service to you at any time, with or without cause. If we terminate your account without cause, and your account is a paid account, we’ll refund a prorated portion of your prepayment for your Subscription (as defined below). We won’t refund or reimburse you in any other situation, including if your account is suspended or terminated for cause, like a breach or any violation of the Agreement. If your account is inactive for 24 or more months, we may terminate the account. Once your account is terminated, you acknowledge and agree that we have no obligation to maintain your account or any data associated with it after 30 days after termination, and that we may permanently delete your account and all the data associated with it after that period. Usernames are unique and can only be used once. If your account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed.
We may change any of the Terms by posting revised Terms on our Website. Unless you terminate your account, the new Terms will be effective immediately and apply to any continued or new use of the Service. We may change the Service or any features of the Service at any time, and we may discontinue the Service or any features of the Service at any time.
You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that Blue Umbrella is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate.
You won’t request access to or information about an account that’s not yours, and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on the content in that account, and if multiple people or entities are identified in the content, then we’ll rely on the contact and profile information listed for that account. In cases where differing contact and profile information is present, we’ll require you to resolve the matter through proper channels outside of Blue Umbrella.
When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account.
You agree to pay to Blue Umbrella any fees for each Service you purchase or use in accordance with the pricing and payment terms presented to you for that Service. You must comply with the terms of all agreements between you and any third-party payment processors, and if you have any disputes regarding the processing of your payment you must deal directly with those third parties to resolve the disputes. If Blue Umbrella allows you to pay directly via credit card, then you authorize Blue Umbrella to charge all amounts to the credit card number you provide. If your credit card payment is rejected or refused you will immediately pay Blue Umbrella the amount due and provide Blue Umbrella with an alternative credit card number for future payments. You represent and warrant that each credit card you use for payment to Blue Umbrella belongs to you or that you have the right to charge all such payments on the credit card, and that the credit card information you provide is correct and you will promptly notify Blue Umbrella of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
Our Services are billed on a subscription basis (“Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. While we will be sad to see you go, you may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
At anytime during the Subscription you may add other modules to your Subscription and benefit from the combination offers. If you add a module during a billing cycle, your monthly charge for that billing cycle will be calculated based on the number of days in that billing cycle during which you were at each of the lower tier and the higher tier (including any applicable additional charges for the higher tier). You will also have the option to downgrade to a lower tier at any time, but if you elect to downgrade during a billing cycle, your downgrade will not be effective until the end of that billing cycle, and you will still be charged for that entire billing cycle at the higher tier (including any applicable additional charges for the higher tier).
Some Services may be offered on a one-time flat fee basis (“Flat Fee”). This means that you will be billed once for a set number of questionnaires included in the offer which will expire after one year. A Flat Fee purchase will not automatically renew. No refunds will be issued for Flat Fee purchases.
Our prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) unless otherwise indicated. You are responsible for paying Taxes associated with your purchase and keeping your billing information up to date.
(a) United State Sales Tax. If we have a legal obligation to pay or collect sales tax for which you are responsible, we will calculate the sales tax based upon the billing information we have about you and charge you that amount (which may be the highest prevailing rate then in effect, if your billing information is incomplete or inaccurate), unless you provide us with a valid tax exemption certificate acceptable to the appropriate taxing authority.
If you provide us with a tax exemption certificate, you represent and warrant that it accurately reflects your tax status and that you will keep such document current and accurate.
If we subsequently determine in our sole discretion that your tax exemption document is valid, we will refund the sales tax collected.
(b) Non-United States Sales Tax. We will charge you VAT unless you provide us a VAT number issued by a taxing authority in the European Union when you are purchasing the Services from Blue Umbrella [EU entity] for business reasons and are located in a different European Union member state from Blue Umbrella [EU entity].
If you are required by law to withhold any Taxes from your payments to Blue Umbrella, you must provide Blue Umbrella with an official tax receipt or other appropriate documentation to support such payments.
Blue Umbrella may change the fees charged to you for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. Blue Umbrella will provide you with advance notice of any change in fees.
You are responsible for anyone that uses the Services through your account, such as your employees, consultants or contractors (each a “User”). You may have up to five authorized Users in your Blue Umbrella account, and each authorized User will have separate access credentials. A superuser is a User designated as the person who has set up the account and may be transferred between users (“Superuser”). A Superuser will have full authority to act on behalf of the account including designating Users, answering Questionnaires and assigning Questionnaires. There can be multiple Superusers per account. The Superuser may change the people using the account at any time. There may be different restrictions on the functionality of each authorized User’s account access including super use, normal use, read only and answer only. You may add more than five Users to your account for an additional fee. For more information, please contact customer support team for a quote.
Because the Services are used for compliance purpose, it is to each Member’s benefit to be able to audit its User’s activities on the Services. Therefore only one User may use that User’s access credentials. Users may not share their access credentials with any other person.
The Services, among other things, allow Members and Users to obtain due diligence information about and from third parties (each a “Third Party”). Third Parties may set up accounts on the Services to complete Questionnaires and engage in the Blue Umbrella community under the free plan.
You must pay all fees for the Services you purchase, except Services that we expressly offer free of charge. If you sign up for a free trial of a paid Service, we may require you to provide a valid credit card or other payment method. We will charge you automatically on the first day after the free trial is over, unless you cancel before the end of the free-trial period.
You may use the Service for a fifteen (15) day trial period, starting on the date that you registered with our Service and accepted these Terms without charge or further commitment for evaluation purposes.
You need to be aware that the Service will automatically cease functioning at the end of the trial period unless i) otherwise extended by Blue Umbrella in its sole discretion, ii) you supply your credit card or other payment information and purchase a subscription to the Service.
At the end of the trial period, unless you purchase a subscription to the Service, all Services and other data you provide to the Service (“Customer Information”) will no longer be available. During the trial period you are free to add and remove modules; if you purchase a subscription to the Service you will be charged in accordance with our standard fees for the entire scope of services and modules you have selected. During the trial period we will have no obligation whatsoever to continue providing the Service to you, and you will have no claim or remedy for the failure of the Service. These limitations are in addition to the warranty disclaimers and liability limits in these Terms.
If you are a Third Party, you agree that:
The Third Party representative signing any response to a Questionnaire represents that they have the authority and knowledge to complete, approve and sign the Questionnaire on behalf of the company or entity that they represent and that the all information provided is accurate.
We own the Service and all proprietary rights in the Service, including, but not limited to: the Questionnaires, the responses to Questionnaires (as submitted by you, by Third Parties or otherwise), and all text, photos, videos, templates, images, icons, software, designs, applications, data, and other content that we provide on or through the Service; all tools, hardware and software used to provide the Service; the Service’s graphical design, user interface and look and feel; and all patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property rights in and to the foregoing. You will respect our proprietary rights in the Service, and you may only use our brand if we give you our written consent to do so.
Blue Umbrella has built a databank service which allows sharing of Questionnaires results among its Members and other Blue Umbrella clients who have accepted the relevant terms and conditions of such use (“Databank”). If you agree to participate in the Databank you (as a user of the Service, whether as a Member, a Third-Party, User or otherwise) acknowledge and agree that:
Blue Umbrella will not sell any Content or Third Party information to entities which are not affiliated with Blue Umbrella.
Blue Umbrella reserves the right to, and you hereby consent to Blue Umbrella, to analyze, process and group data, including Customer Information and Content, so long as the resulting data (“Aggregated Data”) no longer identifiably references you, a Third Party, or, the Inspection Company or any user. Notwithstanding any other wording in these Terms, Blue Umbrella owns the Aggregated Data and Blue Umbrella may create, use, process and disclose the Aggregated Data in any way it sees fit and for any purpose, including the creation of derivative works.
We may view, copy, and internally distribute Content and your account and data to create algorithms and programs (“Tools”) that help us spot problem accounts and improve the Service. We may also use these Tools to find Members who violate these Terms or laws and to study data internally to make the Service smarter and create better experiences for Members and their contacts.
By agreeing to these Terms, you promise to follow these rules:
If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a Member, please report it to our abuse team. If you think anyone has posted material that violates any protected marks or copyrights, then you can notify us at the following address: Legal Department, Unit 1604, 16/F, Eastern Harbour Center, 28 Hoi Chak Street, Quarry Bay, Hong Kong and by email at firstname.lastname@example.org.
You represent and warrant that your use of the Service will comply with all applicable laws and regulations. Without limiting the previous sentence, you’re responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLB, EU data privacy laws (including the General Data Protection Regulation) (“EU Data Privacy Laws”), applicable export control laws and regulations and economic sanctions laws and regulations, or other applicable laws. If you’re subject to regulations (like HIPAA) and you use the Service, then we won’t be liable if the Service doesn’t meet those requirements. You may not use the Service for any unlawful or discriminatory activities, including acts prohibited by any applicable laws.
To the extent that your Content includes any personal information (including any personal information pertaining to a minor), you are solely responsible for determining if your collection, storage, and use of that Content (including on and through the Service) complies with applicable law, for making all required disclosures and obtaining all required consents relating to those activities, and otherwise complying with all applicable laws relating to personal information.
Without limiting the previous paragraph, you agree, represent and warrant (as applicable) to Blue Umbrella that:
The software that supports the App and Service (the “Software”) may be subject to export control laws. Export control laws are set up by the government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. You will comply with all applicable export control laws, and you won’t, directly or indirectly through a third party: (a) export, re-export, import or otherwise make available the Software in violation of these laws, directly or indirectly; or (b) allow the Software or your Questionnaires to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as mentioned in any applicable export control laws. In addition, you certify that neither you nor any principals, officers, directors, or any person or entity you know to be directly involved with the use of the Service is designated on any government list of prohibited or restricted persons.
It’s important to note that this Section 22 isn’t meant to provide a comprehensive summary of the export control laws that govern Blue Umbrella, the Service, or the Software. You’re downloading and using the Software at your own risk, and it’s your responsibility to consult with a legal advisor to make sure your use of the Service and the Software complies with applicable laws.
To the maximum extent permitted by law, you acknowledge and agree that (i) you assume full responsibility for any loss that results from your use of (or inability to use) the Service, including any downloads from the Website; (ii) we and our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages; and (iii) in any calendar month, our total liability to you arising under or in connection with the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month.
For the avoidance of doubt, in no instance will we or our Team be liable for any losses or damages you suffer if you use the Service in violation of these Terms, regardless of whether we terminate or suspend your account due to such violation.
To the maximum extent permitted by law, we provide the Service “as-is” and “as available”. This means that, except as expressly stated in these Terms, we don’t provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability, fitness for a particular purpose, accuracy or non-infringement, which are, to the fullest extent permitted by law, excluded from the Agreement. Since Members use the Service for a variety of reasons, we can’t guarantee that it’ll meet your specific needs. We do not represent or warrant that functions contained in the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service or the server that makes it available is free of Harmful Components.
You acknowledge that your access to and use of the Service will not be free of interruptions, that the Service may contain bugs, errors, inaccuracies or other limitations, and that the Service may be unavailable from time to time. You assume total responsibility and risk for your access to and use of the Service, and you will be solely responsible for any damages or loss, including any damage to your computer systems or other devices or loss of data, that arises from or relates to the Service.
You agree to indemnify and hold us and our Team harmless from any losses, including legal fees and expenses, that directly or indirectly result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us and our Team harmless from any losses, including legal fees and expenses, that directly or indirectly result from (i) your Content, (ii) your use of the Service, (iii) your violation of any laws or regulations, (iv) third-party claims that you or someone using your password did something that, if true, would violate any of these Terms, (v) any misrepresentations made by you, or (vi) a breach of any representations or warranties you’ve made to us.
Your violation of these Terms may cause irreparable harm to us and our Team. Therefore, we have the right to seek injunctive relief or other equitable relief if you violate these Terms (meaning we may request a court order to stop you).
If we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
We and our Team aren’t responsible for the behavior of any third parties, agencies, linked websites, or other Members.
The Software and Website, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users:
Published and unpublished rights are reserved under the copyright laws of the United States and Hong Kong. The manufacturer is Blue Umbrella Limited, Unit 1604, 16/F, Eastern Harbour Center, 28 Hoi Chak Street, Quarry Bay, Hong Kong.
You may not assign any of your rights under this Agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.
This Agreement is governed by and construed in accordance with the laws of Hong Kong. Without prejudice to section 26 (Equitable Relief), any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it, shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Hong Kong law. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.
We won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers, or third-party internet service providers.
Even if this Agreement is terminated, the following sections will continue to apply: Proprietary Rights Owned by Us and by You, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.
If it turns out that a section of these Terms isn’t enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.
The headers are provided only to make these Terms easier to read and understand. The fact that we wrote these Terms won’t affect the way the Agreement is interpreted.
If we don’t immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.
Because we have so many Members, we can’t change these Terms for any one Member or group.
You’ll provide all documents and take any actions necessary to meet your obligations under these Terms.
If we become aware of a security incident related to our systems or databases that contain personal information of you or your contacts, we’ll notify you if required by law. In that event, we’ll also provide you with information about that incident so that you can evaluate the consequences to you and any legal or regulatory requirements that may apply to you, unless we’re prevented from doing so by legal, security or confidentiality obligations. Notifying you of a security incident or cooperating with you to respond to one will not be deemed an acknowledgement or assumption of any liability or fault of Blue Umbrella for such incident.
Any notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our Website. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn. Legal Department, Blue Umbrella, Unit 1604, 16/F, Eastern Harbour Center, 28 Hoi Chak Street, Quarry Bay, Hong Kong, or any addresses as we may later post on the Website.
These Terms and any Blue Umbrella documents referred to in these Terms (including our Cookie Statement) make up the entire agreement between us in relation to its subject matter and supersede all prior agreements, representations, and understandings. Any Additional Terms will be considered incorporated into the Agreement when you activate the corresponding Add-on.
Where there’s a conflict between these Terms and the Additional Terms, the Additional Terms will control to the extent of the conflict.
Effective December 6, 2019
BRIDGER INSIGHT™ END USER LICENSE AGREEMENT
Users subscribing to Compliance Screening and Monitoring are also subject to the Bridger Insight End User License Agreement
This End User License Agreement (“EULA”) is a binding contract between Member (“User”) and Blue Umbrella. User hereby agrees to be bound by all of the terms and conditions of this End User License Agreement
GRANT AND SCOPE OF LICENSE. Blue Umbrella grants User, a limited, non-exclusive, non-transferable right to the data and/or information delivered to User through use of the App, which is integrated with the Bridger Insight software (collectively, the “Software Product”) and any documentation supporting the use of the Software Product (the “Documentation”), only by individual end users located within the country in which, at the time of first installation or use of the Software Product pursuant to this EULA, the individual who installs or uses it is located, provided that User complies with all of the terms and conditions of this EULA, and does so in strict accordance with the following conditions: (i) User shall use the Software Product to scan data of and for the User only; (ii) User shall use the Software Product solely for User’s own internal business purposes, and not for providing service bureau, timesharing, data processing or other similar services to third parties; (iii) User shall not reveal any links, user accounts, or passwords for the Software Product to third parties (other than to agents of User that have been pre-authorized in writing by Blue Umbrella and who have a need to know such information); (iv) User shall not use the Software Product to create a product or service that would compete with the Software Product; (v) User acknowledges and agrees that it is not permitted to and that it shall not use the Software Product or the information accessed in connection therewith, in whole or in part, for the purpose of serving as a factor in establishing a consumer’s eligibility for credit or insurance, employment purposes, or for any other purpose(s) authorized under section 604 of the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681 et seq.) (“FCRA”) or similar state statute; (vi) User shall use the Software Product in accordance with the requirements of all applicable laws and regulations; and (vii) to the extent that the license fees hereunder are calculated based upon the number of end user seats, asset size, number of accounts, or other criterion (“Permitted Usage Maximum”) User shall not exceed such Permitted Annual Usage Maximum unless it first purchases such additional license rights from Blue Umbrella. User shall be liable for its agent’s breach of this EULA as if such breach had been committed by User Certain data that is accessible through the Bridger Insight software or services is available only pursuant to a separate agreement between User and Blue Umbrella, or between User and a third party, and the terms and conditions of the separate agreement exclusively govern the use of such data.
TERMINATION. Blue Umbrella may terminate this EULA and/or all access to data files immediately and without notice if Blue Umbrella has a reasonable basis to believe that User or any of its employees or agents have used or will use the Software Product in connection with any violation of applicable laws, regulations, or the scope of the license granted hereunder or have committed or will commit hostile network attacks or other improper activities. Upon termination, User shall immediately cease using the Software Product and shall dispose of all copies of the Software Product, Documentation, and any other Software Products or materials received from Blue Umbrella by either returning same to Blue Umbrella or erasing, purging or destroying same. Upon request, User shall provide Blue Umbrella with a written statement signed by a duly authorized representative certifying that all such Software Product, Documentation, and other products or materials received from Blue Umbrella have been duly returned, erased, purged and destroyed.
PROPRIETARY RIGHTS. This EULA does not transfer ownership of the Software Product, the Documentation or any copy thereof, or any other intellectual property rights of Blue Umbrella. As between Blue Umbrella and User, shall retain all right, title and interest in and to the Software Product, the Documentation and any copies thereof furnished to User or otherwise made by User hereunder, and all intellectual property embodied therein, including all rights and benefits afforded under United States copyright, patent, or trade secret law and international treaties. User shall use the Software Product consistently with Blue Umbrella’s right, title and interest therein, shall promptly notify Blue Umbrella of any threatened or actual infringement thereof, and shall cooperate without charge (provided that Blue Umbrella will reimburse out of pocket expenses) in Blue Umbrella’s efforts to protect its rights therein.
CONFIDENTIAL INFORMATION. The Software Product and the Documentation (“Confidential Information”) are treated by Blue Umbrella as confidential and contain substantial trade secrets of Blue Umbrella, which Blue Umbrella has entrusted to User in confidence to use only as expressly authorized. User shall not use any such Confidential Information for any purpose except as reasonably necessary to perform the terms and conditions of this Agreement and to accomplish the specific purpose for which such Confidential Information was provided. User shall not disclose or permit to be disclosed any such Confidential Information to any third person without the prior written consent of Blue Umbrella. User shall protect the confidentiality of the Confidential Information with the same degree of care used by User to protect the confidentiality of its most sensitive trade secrets, but in no event less than a reasonable degree of care. User shall (i) instruct its employees and any other party having access to the Confidential Information of User's responsibilities under this EULA and (ii) be liable for any such person’s breach of this EULA as if such breach had been committed by User. Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of User; (ii) is lawfully disclosed to User by a third party without an obligation of nondisclosure or secrecy to Blue Umbrella; (iii) is independently developed by User without reference to the Confidential Information; or (iv) was already in the User’s possession prior to the earlier of (a) the date this EULA first goes into effect, or (b) the date of first disclosure to User by Blue Umbrella. Additionally, User may disclose Confidential Information solely to the extent required by subpoena, court order or other governmental authority, provided that User shall give Blue Umbrella prompt written notice of such subpoena, court order or other governmental authority so as to allow Blue Umbrella to have an opportunity to obtain a protective order to prohibit or restrict such disclosure. Confidential Information disclosed pursuant to subpoena, court order or other governmental authority shall otherwise remain subject to the terms applicable to Confidential Information. With respect to Confidential Information that constitutes trade secrets pursuant to applicable law, User’s obligations pursuant to this section shall continue for so long as such Confidential Information shall continue to constitute trade secrets. With respect to Confidential Information that does not constitute or that ceases to constitute trade secrets pursuant to applicable law, User’s obligations pursuant to this section shall continue for not less than the term of this EULA and for a period of five (5) years thereafter. User acknowledges that the Confidential Information is commercially valuable, proprietary information of Blue Umbrella, the design and development of which reflect the expenditure of great effort and expense. User acknowledges and agrees that, for any breach of this EULA, Blue Umbrella will not have an adequate remedy at law, and User consents (without limiting the right of Blue Umbrella to any other remedy) to the entry of an injunction against any threatened or continuing breach by any court of competent jurisdiction.
DESCRIPTION OF LIMITATIONS. User agrees not to modify, adapt, reproduce, distribute, resell, retransmit, merge with any other program, prepare derivative works based on, demonstrate, translate, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software Product, except: (i) User may install or access the Software Product and/or Documentation on or from User’s computer hard drives (including network or server computers) only as needed to exercise the license rights granted herein; (ii) User may make one (1) copy each of the Software Product, if applicable, and Documentation for each site where the Software Product is in authorized use under this EULA for use only as a backup; and/or (iii) to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. User must first give Blue Umbrella notice of its intention to engage in any such activity expressly permitted by applicable law sufficiently in advance thereof to permit Blue Umbrella to determine for itself beforehand if such activity is so permitted. Any copy of the Software Product or Documentation made by User shall contain all copyright, trade secret, trademark and other proprietary rights notices or logos as are in the original.
INSPECTION; RECORDS. User understands and agrees that in order to ensure compliance with applicable law and Blue Umbrella policies, Blue Umbrella may conduct periodic audits of User activity and may contact User to provide documentation regarding usage and executed searches. Blue Umbrella also investigates reports of abuse or misuse by User, and User agrees to cooperate fully with any and all audits and/or investigations. User agrees to permit Blue Umbrella to review User’s account(s), links and passwords to verify compliance with the terms of this EULA. Violations discovered in any review by Blue Umbrella will be subject to immediate action including, but not limited to, immediate suspension of User’s access to data and/or termination of this EULA. If Blue Umbrella determines that User is in violation of the terms of this EULA, User shall reimburse Blue Umbrella for all costs incurred in connection with the inspection(s).
SECURITY EVENT. User agrees to take appropriate measures so as to protect against the misuse and/or unauthorized access of the Software Product and data delivered through the Software Product, including unauthorized access through or to User’s user identification numbers or passwords. In the event that User learns or has reason to believe that Blue Umbrella data has been disclosed or accessed by an unauthorized party, User will immediately give notice of such event to Blue Umbrella. Furthermore, in the event that User has access to or acquires individually identifiable information (e.g., social security numbers, driver’s license numbers or dates of birth) in relation to the Agreement, the following shall apply: User acknowledges that upon unauthorized acquisition of such individually identifiable information (a "Security Event"), User shall, in compliance with law, notify the individuals whose information was disclosed that a Security Event has occurred. In addition, User shall be responsible for any other legal obligations which may arise under applicable law in connection with such a Security Event.
NOTIFICATION OF ERRORS. If User notifies Blue Umbrella of any area of the Software Product that gives unexpected or apparently incorrect results, Blue Umbrella will, in its sole and absolute discretion, (i) examine and/or (ii) make necessary modifications in that area. Blue Umbrella invites User’s feedback concerning the Software Product and Documentation or any bugs, errors, or other problems discovered during the Term. User will not include its own confidential information in such suggestions and Blue Umbrella will have no confidentiality obligations with respect thereto. User agrees that Blue Umbrella and its designees may copy, modify, create derivative works, display, disclose, distribute, license and sublicense, incorporate, and otherwise use any or all of the suggestions, including derivative works thereof, for any purpose.
UPDATES. Updates, defined as maintenance updates containing error corrections, will be made available from time to time by Blue Umbrella, at its sole discretion.
DOWNTIMES. User acknowledges and agrees that from time to time access to data files and/or the Software Product may be unavailable or inoperable for various reasons, including but not limited to periodic maintenance procedures or repairs which Blue Umbrella may undertake from time to time, equipment malfunctions, or other causes beyond the control of Blue Umbrella or which are not reasonably foreseeable by Blue Umbrella, including but not limited to interruption or failure of telecommunication or digital transmission links, network congestion, or other failures (collectively “Downtimes”). Downtimes may also result from suspension by Blue Umbrella, in its sole discretion and without notice, of access to data files and/or the Software Product due to actual or suspected hostile network attacks or other improper activities.
DENIALS OF SERVICE OR ACCESS. User acknowledges and agrees that Blue Umbrella is providing data, services, or products to support User’s own processes, and that no customer of User should be denied service or access based solely on data or results provided by Blue Umbrella or the Software Product. User acknowledges and agrees that User is responsible for any denial of service or access to a customer, and that User shall not deny such service or access based upon data or results provided by Blue Umbrella or the Software Product without first conducting an appropriate review and adjudication process. User agrees to indemnify, defend and hold harmless Blue Umbrella and any third parties, as provided herein, for any claim arising from any such denial of service or access.
DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Blue Umbrella AND ITS DISTRIBUTORS AND SUPPLIERS DISCLAIM ANY WARRANTY (WHETHER EXPRESS OR IMPLIED), INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR THE CORRECTNESS, COMPLETENESS OR CURRENTNESS OF ANY DATA OR RESULTS, WITH RESPECT TO THE SOFTWARE PRODUCT, DOCUMENTATION, AND SUPPORT SERVICES, ALL OF WHICH ARE BEING PROVIDED ON AN “AS IS” BASIS. ANY STATEMENTS REGARDING THE SOFTWARE PRODUCT OR SUPPORT SERVICES MADE BY A DISTRIBUTOR OR OTHER THIRD PARTY ARE NOT WARRANTIES AND CANNOT BE RELIED UPON BY USER. THE ENTIRE RISK ARISING OUT OF USE OF THE SOFTWARE PRODUCT AND SUPPORT SERVICES REMAINS WITH THE USER.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BLUE UMBRELLA, ITS SUPPLIERS, OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, SOFTWARE PRODUCTION, OR DELIVERY OF THE SOFTWARE PRODUCT OR SUPPORT SERVICES BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS INFORMATION, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF BLUE UMBRELLA OR ANY THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER ACKNOWLEDGES THAT EVERY BUSINESS DECISION INVOLVES ASSUMPTION OF A RISK, AND THAT NEITHER Blue Umbrella NOR ANY THIRD PARTY UNDERWRITES THAT RISK IN ANY MANNER WHATSOEVER. IF, NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED ON BLUE UMBRELLA OR ANY THIRD PARTIES, THEN USER AGREES THAT THE AGGREGATE LIABILITY OF BLUE UMBRELLA AND/OR ANY THIRD PARTIES FOR ANY AND ALL LOSSES OR INJURIES ARISING OUT OF ANY ACT OR OMISSION OF Blue Umbrella AND/OR ANY THIRD PARTIES IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED UNDER THIS EULA, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE FEES ACTUALLY PAID BY USER TO Blue Umbrella FOR THE SOFTWARE PRODUCT AND/OR SUPPORT SERVICES TO WHICH A GIVEN CLAIM RELATES AND WHICH WERE DELIVERED OR PROVIDED DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM, AND USER COVENANTS AND PROMISES THAT USER WILL NOT SUE BLUE UMBRELLA AND/OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN SUCH SUM EVEN IF Blue Umbrella AND/OR ANY THIRD PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND THAT USER WILL NOT SEEK PUNITIVE DAMAGES IN ANY SUIT AGAINST Blue Umbrella AND/OR ANY THIRD PARTIES, ALL IN CONSIDERATION OF THE RECEIPT BY USER OF THE SOFTWARE PRODUCT OR SUPPORT SERVICES AT THE RATES CHARGED BY BLUE UMBRELLA HEREUNDER, WHICH ARE FAR LOWER THAN WOULD BE AVAILABLE TO USER ABSENT THE WAIVERS AND DISCLAIMERS CONTAINED HEREIN. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
INDEMNIFICATION. (a) User will indemnify, defend and hold harmless Blue Umbrella and any third parties from and against any and all claims, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) arising from or in any way related to the use of the Software Product or Documentation by User, subject to Blue Umbrella’s compliance with all of the provisions of subsection (b) below. (b) (i) The indemnified party must promptly give written notice of any claim to the indemnifying party; (ii) the indemnified party must provide any assistance which the indemnifying party may reasonably request for the defense of the claim (with reasonable out of pocket expenses paid by the indemnifying party); and (iii) the indemnifying party has the right to control the defense or settlement of the claim; provided however, that the indemnified party shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense. IF AN INJUNCTION OR ORDER IS ISSUED RESTRICTING THE USE OR DISTRIBUTION OF ANY OF THE SOFTWARE PRODUCT OR DOCUMENTATION, OR IF BLUE UMBRELLA DETERMINES THAT THE SOFTWARE PRODUCT OR DOCUMENTATION ARE LIKELY TO BECOME THE SUBJECT OF A CLAIM OF INFRINGEMENT OR VIOLATION OF ANY PROPRIETARY RIGHT OF ANY THIRD PARTY, BLUE UMBRELLA SHALL IN ITS SOLE DISCRETION AND, AT ITS OPTION (i) PROCURE FOR USER THE RIGHT TO CONTINUE USING, REPRODUCING, AND DISTRIBUTING THE SOFTWARE PRODUCT AND DOCUMENTATION; (ii) REPLACE OR MODIFY THE SOFTWARE PRODUCT AND DOCUMENTATION SO THAT THEY BECOME NON-INFRINGING, PROVIDED SUCH MODIFICATION OR REPLACEMENT DOES NOT MATERIALLY ALTER OR AFFECT THE SPECIFICATIONS FOR OR THE USE OR OPERATION OF THE SOFTWARE PRODUCT; OR (iii) TERMINATE THIS EULA AND REFUND ANY FEES ON A PRO RATA BASIS FOR LOST USE DURING THE THEN-REMAINING TERM WHEN TERMINATION OF THIS EULA OCCURS. THE FOREGOING REMEDIES CONSTITUTE USER’S SOLE AND EXCLUSIVE REMEDIES AND BLUE UMBRELLA’S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT CLAIMS OR ACTIONS.
U.S. GOVERNMENT USE. User acknowledges and agrees that the Software Product and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Subpart 227.72 and FAR Section 12.212, as applicable, and any use, modification, reproduction, release, performance, display, provision, or disclosure of the Software Product or Documentation by the U.S. Government shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA.
ASSIGNMENT. This EULA shall not be assigned by either party without the advance written consent of the other, provided that Blue Umbrella may assign this EULA to a subsidiary or affiliate, or to a successor to all or a substantial portion of its Bridger InsightTM business, without obtaining User’s consent. Upon such assignment: (i) Blue Umbrella shall advise User of such transfer and (ii) the transferee entity shall expressly assume all obligations hereunder. This EULA shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Any purported assignment in violation hereof shall be void.
FORCE MAJEURE. The parties will not incur any liability to each other or to any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this EULA (except for payment obligations) to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the negligence of the parties. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications outages, Internet outages, power outages, any irregularity in the announcing or posting of updated data files by the applicable agency, strikes, lockouts, riots, acts of war, terrorism, floods, earthquakes, fires, and explosions.
MISCELLANEOUS. This EULA applies to updates, supplements, add-on components, or service components of the Software Product that Blue Umbrella may provide or make available to User after the date User obtains the initial copy of the Software Product, unless they are accompanied by separate terms. Blue Umbrella reserves the right to discontinue the Software Product and related services. This EULA is governed by the laws of the State of Georgia, without regard to conflict of laws principles. THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED. User acknowledges that the Software Product is of U.S. origin and subject to U.S. export jurisdiction. Any export and/or use of Software Product outside of the United States of America, and compliance with corresponding laws, Nation State regulations, taxes, and tariffs, are the sole responsibility of the User. The failure or delay by either party in exercising any right, power or remedy under this EULA shall not operate as a waiver of any such right, power or remedy. If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this EULA shall remain in full force and effect. The headings in this EULA are inserted for reference and convenience only and shall not enter into the interpretation hereof.
SURVIVAL. Those provisions of this EULA that by their terms, nature or sense survive any termination or expiration of this EULA shall so survive in accordance with their terms, including but not limited to provisions related to intellectual property ownership and proprietary rights, limitations of liability, payment for product or services, disclaimer of warranties, and nondisclosure of confidential information.