END USER AGREEMENT
This End User Agreement (the “Agreement”) constitutes a legal agreement between you (“Licensee”, “you”, “your”) and BluHorn, LLC (“BluHorn,” “we”, “our”) for your use of BluHorn Solutions software (the “Software”). By signing this Agreement, you understand that you are bound by the terms of this Agreement and that this Agreement applies to all Software and services provided by BluHorn.
1. LICENSE GRANT AND RESTRICTIONS. Subject to the terms and conditions of this Agreement, including the payment of any applicable subscription fees, BluHorn grants you a limited, non-exclusive, non-transferable license to electronically access and use the Software solely for media planning and buying. In addition to the BluHorn Solutions software, the term “Software” includes any other programs, tools, “cloud” or internet-based services, components and any “updates” (including, but not limited to, Software maintenance, service information, help content, bug fixes, or maintenance releases) of the Software that BluHorn provides or makes available to you. You are entitled to download updates to the Software that BluHorn generally makes available to other users of the Software. Certain Software may be accompanied by, and will be subject to, additional terms.You are not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) access or attempt to access any other BluHorn systems, programs or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the material from the BluHorn or BluHorn Solutions Online sites; (iii) permit any third party to benefit from the use or functionality of the Software or services via a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any of the rights granted to you under this Agreement; (v) work around any technical limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decompile, disassemble, or otherwise reverse engineer the Software except as otherwise permitted by applicable law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Software or services, prevent access to or the use of the Software or services by BluHorn’s other licensees or customers, or impose an unreasonable or a disproportionately large load on BluHorn’s infrastructure; or (vii) otherwise use the Software except as expressly allowed under this Section.
2. RESERVATION OF RIGHTS AND OWNERSHIP. It is hereby understood and agreed that BluHorn, LLC, with offices at 1611 San MarcoBlvd., Jacksonville, FL (Licensor), is the owner of all rights, title and interest to the Software, regardless of the media or form of the original, whether by the World Wide Web, disk or otherwise. The Software is licensed and not sold, and BluHorn reserves all rights not expressly granted to you in this Agreement. The Software is protected by copyright, trade secret and other intellectual property laws. BluHorn and its licensors, if any, own the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software. This Agreement does not grant you any rights to trademarks or service marks of BluHorn.
3. REGISTRATION DATA. You must register to use the Software and services and (i) provide true, accurate, current and complete registration information, and (ii) maintain and promptly update the registration information to keep it accurate, current and complete. If you provide any registration information that is inaccurate, not current or incomplete, or BluHorn has reasonable grounds to suspect is inaccurate, not current or incomplete, BluHorn may, in its sole discretion, suspend or terminate your account and refuse any and all current or future access to and use of the Software or services (or any portion thereof).
4. LICENSEE ACCESS INFORMATION AND ACCOUNT DATA. You are solely responsible for (i) maintaining the confidentiality and security of your access number(s),password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by you to access the Software, services and your accounts (collectively “Licensee Access Information”) and (ii) preventing unauthorized access to or use of the information, files or data that you store or use in or with the Software and services (collectively, “Account Data”). You are responsible for providing access and assigning passwords to other authorized users under your account for the Software and services, and you are responsible for ensuring that such authorized users comply with this Agreement. You will be responsible for all electronic communications, including, but not limited to, registration and other account holder information, email and other data (collectively “Communications”), entered using the Licensee Access Information. BluHorn assumes that any Communications it receives through use of the Licensee Access Information were sent or authorized by you. You agree to immediately notify BluHorn if Licensee becomes aware of any loss, theft or unauthorized use of any Licensee Access Information. BluHorn reserves the right to deny you access to the Software or services (or any part thereof) if BluHorn reasonably believes that any loss, theft or unauthorized use of Licensee Access Information has occurred. You must inform BluHorn of, and hereby grant to BluHorn permission to use, Licensee Access Information to enable BluHorn to provide the services to you, including updating and maintaining Account Data, addressing errors or service interruptions, and enhancing the types of data and services BluHorn may provide to you.
5. INTELLECTUAL PROPERTY RIGHTS. You acknowledge and agree that copyrights, trademarks, service marks, patents, trade secrets, and other proprietary rights and laws protect all content and materials available on any BluHorn website and the Software. Unless expressly stated, nothing in this Agreement, the Software or any BluHorn website shall be interpreted or implied in such a way as conferring any license or right to any intellectual property rights or license to any intellectual property, content, technology, system, process, or related material belonging to BluHorn by virtue of it being displayed or made accessible on any BluHorn website. Except as expressly authorized by BluHorn, you agree not to use any BluHorn website or the Software in any manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, which you access or receive. The BluHorn and BluHorn Solutions names, logos, related names, design marks, product names, feature names and related logos are trademarks of BluHorn, LLC and may only be used with the express written permission of BluHorn. BluHorn claims copyright interests in all original content or works provided by BluHorn. If any pages, information or content is copied, it may only be copied for non-commercial uses, and BluHorn shall, in any event, retain all copyright and other proprietary interests therein.
6. SOFTWARE USE, STORAGE AND ACCESS. BluHorn shall have the right, in its sole discretion and with reasonable notice posted on the BluHorn website and/or sent to your email address provided in the registration information, to revise, update, or otherwise modify the services and establish or change limits concerning use of the Software and services, temporarily or permanently, including, but not limited to, (i) the amount of storage space you have on the Software at any time, and (ii) the number of times (and the maximum duration for which) you may access the Software in a given period of time. BluHorn reserves the right to make any such changes effective immediately to maintain the security of the system or Licensee Access Information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Software and services to which such changes relate. Your continued use of the Software or services will constitute Licensee’s acceptance of and agreement to such changes.BluHorn may, from time to time, perform maintenance upon the Software or services resulting in interrupted service, delays or errors in the Software or services. BluHorn will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided.
7. SUBSCRIPTION FEE. The Software and services are licensed on monthly or annual subscription basis. You hereby agree to pay the full dollar amount due for the Software and services subscription pursuant to the agreed to fees and payment terms. All fees are subject to change on a prospective basis upon notice from BluHorn. By subscribing to the Software and services, you authorize BluHorn to charge the applicable fee to your designated billing payment method continuously and without notice until your subscription has been cancelled in writing. All subscription fees are in U.S. Dollars and are non-refundable unless expressly agreed to by BluHorn. The subscription fees do not include any national, state or local sales, use, value-added or other taxes, customs duties or similar tariffs and fees that BluHorn may be required to pay upon delivery of the Software and services. There is a $25.00 monthly fee for data retention for inactive accounts. This fee is only applicable to users who wish to return to BluHorn after an inactive period. You will be responsible for payment of all such taxes (other than taxes based on BluHorn’s income), fees, duties, and charges applicable to your subscription. Your obligation to pay the subscription fee, when not subject to a reasonable dispute, will be unconditional and not subject to abatement, setoff or defense of any kind. Any portion of the subscription fee not paid when due will accrue interest at 18% per annum (1.5% per month) or the maximum rate permitted by applicable law, whichever is greater, from the due date until paid. If payment is made to BluHorn by check and the check is returned to BluHorn unpaid due to insufficient funds, you agree to pay BluHorn an additional NSF check charge equal to $30.00. If your billing payment method changes during the term of your subscription plan, you must immediately update the billing payment method associated with your BluHorn account. If BluHorn is unable to charge your billing payment method, BluHorn may: (i) immediately suspend or terminate your account, (ii) seek collection of the outstanding amount owed and/or (iii) seek legal action against you for breach of this Agreement. You will reimburse BluHorn for all reasonable costs incurred in collecting past due amounts. Such costs, if incurred, include, but are not limited to, wire transfer fees, collection agency fees, reasonable attorneys’ fees, and court costs.
8. THIRD PARTY SERVICES. In connection with your use of the Software, you may be made aware of services, products, offers and promotions provided by third parties, and not by BluHorn (“Third Party Services”). If you decide to use Third Party Services, you are responsible for reviewing and understanding the terms and conditions governing any Third Party Services. You agree that the third party, and not BluHorn, is responsible for the performance of the Third Party Services.
9. FEEDBACK. BluHorn may provide you with a mechanism to provide feedback, suggestions and ideas about its online products and services. You agree that BluHorn may, in its sole discretion, use the feedback you provide in any way, including in future modifications of the Software, multimedia works and/or advertising and promotional materials relating thereto. You hereby grant BluHorn a perpetual, worldwide, fully transferable, non-revocable, royalty-free license to use, modify, create derivative works from, distribute and display any information you provide in the feedback.
10. DISCLAIMER OF WARRANTIES. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BLUHORN, ITS OWNERS, AFFILIATES, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE AND SERVICES, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, WARRANTY OF MERCHANTABILITY, AND WARRANTY OF NON-INFRINGEMENT. BLUHORN DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, IDENTITY THEFT, THREAT OF HACKERS, OTHER PROGRAM LIMITATIONS, OR THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS. BLUHORN ATTEMPTS TO ENSURE THAT THE INFORMATION STORED ON ITS SERVERS IS SAFE AND SECURE BY EMPLOYING REASONABLE, INDUSTRY-RECOGNIZED SECURITY AND VIRUS SAFEGUARDS, AND BY CONDUCTING ROUTINE SYSTEM MAINTENANCE AND MONITORING. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THE EVENT THAT STATE LAW DOES NOT ALLOW SAID EXCLUSION OF IMPLIED WARRANTIES, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SOFTWARE, AS APPLICABLE. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
11. LIMITATION OF LIABILITY AND DAMAGES. THE ENTIRE CUMULATIVE LIABILITY OF BLUHORN FOR ALL MATTERS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR SERVICES, AS APPLICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BLUHORN AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF INCOME, OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BLUHORN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL BLUHORN BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR RECEIPT OF OR PARTICIPATION IN ANY THIRD PARTY SERVICES, THIRD PARTY WEBSITES, OR RATING SERVICES. IN NO EVENT DOES BLUHORN ASSUME ANY LIABILITY TO ANY PARTY OTHER THAN YOU ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE OR SERVICES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BLUHORN AND YOU. BLUHORN WOULD NOT BE ABLE TO HAVE PROVIDED THE SOFTWARE OR THE SERVICES WITHOUT SUCH LIMITATIONS.
12. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY (“CONSENT”).
(a) Consent to Electronic Communications. BluHorn may be required by law to send “Communications” to you that may pertain to the Software, the use of information you may submit to BluHorn, and the services you choose. Additionally, certain of the Third Party Services you choose may require Communications with the third parties who administer these programs. You agree that BluHorn, on behalf of itself, and others who administer such services (as applicable), may send Communications to you by email and/or may make Communications available to you by posting said Communications at BluHorn’s website. You consent to receive these Communications electronically. The term “Communications” means any notice, record, agreement, or other type of information that is made available to you or received from you in connection with the Software and the online services and any third-party services.
(b) Consenting to Do Business Electronically. The decision whether to do business electronically is yours, and you should consider whether you have the required hardware and software capabilities described below. Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Software for as long as you remain a subscriber to the Software.
(c) Hardware and Software Requirements. In order to access and retain an electronic record of Communications, you will need: a computer, a monitor, a connection to an Internet service provider, Internet browser software, and an e-mail address. Although BluHorn will use reasonable efforts to safeguard the confidentiality of the Communications, transmissions made by means of the Internet cannot be made absolutely secure. BluHorn is not liable for disclosure of the Communications due to errors in transmission or unauthorized acts of third parties.
(d) Changes to Your Email Address. You agree to notify us promptly of any change in your email address.
13. LIMITATION ON TIME TO SUE. Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law with respect to the Software or Third Party Services must be commenced within one year after the cause of action accrues.
14. MISCELLANEOUS. Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between you and BluHorn and sets forth the entire liability of BluHorn and your exclusive remedy with respect to the Software and services. Any waiver of the terms herein by BluHorn must be in a writing signed by an authorized officer of BluHorn and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement will be governed by Florida law as if the Agreement were entered into and to be performed entirely within Florida, without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction or applicable federal law. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Jacksonville, Duval County, Florida or the Federal District Court, Middle District of Florida, in Jacksonville, Florida. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” This Agreement does not limit any rights that BluHorn may have under trade secret, copyright, patent or other laws.
15. AMENDMENT. BluHorn shall have the right to change or add to the terms of its Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of Software and services (including, but not limited to, Internet-based services, pricing, technical support options, and other product-related policies) upon notice by any means BluHorn determines in its discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in Software or on BluHorn’s web site. Any use of the Software by Licensee after BluHorn’s publication of any such changes shall constitute your acceptance of this Agreement as modified.
16. TERMINATION. Your rights under this Agreement may be terminated or suspended by BluHorn immediately and without notice if you fail to comply with any term or condition of this Agreement. Additionally, BluHorn reserves the right (but has no obligation) to delete all Licensee Access Information and data stored on BluHorn’s servers if the subscription has been terminated or if you have not renewed a subscription for the Software. Upon termination you must immediately cease using the Software and services. Any termination of this Agreement shall not affect BluHorn’s rights hereunder. Further, you agree that, upon termination of the Agreement, BluHorn shall not be liable to you or any third party for any termination of your access to the Software or deletion of the Access Information and data.
17. CANCELLATION POLICY. It is understood that you have agreed to subscribe to BluHorn Solutions Software and services. Once you have so subscribed and agreed to the terms set forth in this Agreement, there will be no ability to cancel prior to the Contract End date specified in Purchase details.
18. DUTIES TO DEFEND, INDEMNIFY AND HOLD HARMLESS. You agree to defend, indemnify and hold harmless BluHorn and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, losses, demands, causes of action and judgments, including attorneys’ fees and court costs, arising from or incurred as a result of your breach of this Agreement and/or as a result of your use of the Software and/or services and to reimburse BluHorn on demand for any losses, costs or expenses it incurs as a result thereof. This obligation will survive the termination of the Agreement.
19. AGREEMENT CONSTRUCTION. This Agreement is between commercially sophisticated parties and may not be construed and interpreted for or against either party. Each party is aware that each is free to seek independent professional guidance or legal counsel regarding this Agreement. Each party has either sought such guidance or legal counsel or decided, after reviewing the Agreement carefully, to waive such right.
20. AUTHORITY TO SIGN. The Licensee warrants and represents that its representative signing this Agreement has full power and proper authority to sign this Agreement and to bind the Licensee.