A. Account Creation.
In order to use certain features of the Site, you must be provided with or register for an account with Bluecore (“Bluecore Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Bluecore Account at any time, for any reason, by following the instructions on the Site. Bluecore may suspend or terminate your Bluecore Account in accordance with Section 9.
B. Account Responsibilities.
You are responsible for maintaining the confidentiality of your Bluecore Account login information and are fully responsible for all activities that occur under your Bluecore Account. You agree to immediately notify Bluecore of any unauthorized use, or suspected unauthorized use of your Bluecore Account or any other breach of security. Bluecore cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Subject to the terms of this Agreement, Bluecore grants you a non-transferable, non-exclusive, revocable license to use the Site for your internal business purposes.
B. Certain Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site content must be retained on all copies thereof.
Bluecore reserves the right, at any time, to modify, suspend, or discontinue the Site or any part thereof with or without notice. You agree that Bluecore will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or any part thereof.
Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site are owned by Bluecore or Bluecore’s licensors. The provision of the Site does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Bluecore and its suppliers reserve all rights not granted in this Agreement.
3. USER CONTENT
A. User Content.
“User Content” means any and all information and content that a user submits to, or uses with, the Site (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the terms of Section 4 below. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Bluecore. Because you alone are responsible for your User Content (and not Bluecore), you may expose yourself to liability if, for example, your User Content violates the terms of Section 4. Bluecore is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
You hereby grant, and you represent and warrant that you have the right to grant, to Bluecore an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
If you provide Bluecore any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Bluecore all rights in the Feedback and agree that Bluecore shall have the right to use such Feedback and related information in any manner it deems appropriate. Bluecore will treat any Feedback you provide to Bluecore as non-confidential and non-proprietary. You agree that you will not submit to Bluecore any information or ideas that you consider to be confidential or proprietary.
4. ACCEPTABLE USE
You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content (whether incorporated into an email or not) (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any applicable law, regulation, or obligations (including, but not limited to, the CAN-SPAM Act of 2003, the Canadian Anti-Spam Law (CASL), and any other applicable laws related to email marketing or the marketing and sale of illegal goods or services) or restrictions imposed by any third party. If you are in Canada or send to Canadian residents, you must comply with CASL. Under CASL, if you do not have implied consent (as defined by CASL) from a recipient, you must obtain express consent (as defined by CASL) before you can send any emails to that recipient. The information on CASL we have provided here is provided as a limited resource, but does not constitute legal advice. If you have further questions about CASL, we encourage you to contact an attorney in your area who is familiar with this law.
In addition, you agree not to use the Site to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) include in your email any material (including text, photos, graphics or other content) that you do not own or have the right to use and transmit; (c) send spam (as defined here: http://www.spamhaus.org/consumer/definition/) or any unsolicited or unauthorized advertising, promotional materials, junk mail, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (d) use in your email any incorrect or misleading names, addresses, email addresses, subject lines or other incorrect or misleading information of any kind; (e) import or incorporate into any lists, emails or uploads to our servers any of the following: social security numbers, passwords, security credentials or sensitive personal information of any kind; (f) send email that will be delivered to recipients as text, SMS or MMS messages; (g) send marketing or commercial email without permission; (h) upload or send to purchased lists, rented lists or third-party lists of any kind; (i) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (j) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or violate the regulations, policies or procedures of such networks; (k) attempt to gain unauthorized access to the Site, other computer systems or networks connected to or used together with the Site, through password mining or other means; (l) harass or interfere with another user’s use and enjoyment of the Site; or (m) introduce software or automated agents or scripts to the Site so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site.
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Bluecore Account in accordance with Section 9, and/or reporting you to law enforcement authorities) if you violate the terms of acceptable use in this Section 4 or any other provision of this Agreement or otherwise create liability for us or any other person.
5. MUTUAL INDEMNIFICATION
6. THIRD PARTY SITES
The Site might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites”). Such Third Party Sites are not under the control of Bluecore and Bluecore is not responsible for any Third Party Sites. Bluecore provides these links to Third Party Sites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. When you link to a Third Party Site, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.
THE SITE IS PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. LIMITATION ON LIABILITY
IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID BLUECORE IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
9. TERM AND TERMINATION.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site. We may (a) suspend your rights to use the Site (including your Bluecore Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site in violation of this Agreement. Upon termination of this Agreement, your Bluecore Account and right to access and use the Site will terminate immediately. You understand that any termination of your Bluecore Account involves deletion of your User Content associated therewith from our live databases. Bluecore will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Bluecore Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2.B-3.D, 3 –11.
10. COPYRIGHT POLICY.
Bluecore respects the intellectual property of others and asks that users of our Site do the same. In connection with our Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Bluecore is:
Attn. Copyright Infringement Agent
116 Nassau St., 7th Floor
New York, NY 10038
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
B. Governing Law; Venue
This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, will be governed by the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The exclusive jurisdiction and venue of any action with respect to this Agreement shall be the state or federal courts in New York County, New York and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action.
C. Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Bluecore is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Bluecore’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
D. Copyright/Trademark Information
Copyright © 2018, Bluecore, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
January 11, 2018 version